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State v Wiamai [2013] PGNC 184; N5390 (22 October 2013)

N5390

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 72 OF 2013

THE STATE
Applicant

V

PHILIP WIAMAI
Respondent

Madang: Cannings J
2013: 16, 22 October

CRIMINAL LAW – sentencing – suspended sentences – application for revocation of suspended sentence – whether conditions of suspended sentence breached.

The State applied for revocation of an offender's suspended sentence on the ground that he had failed to comply with the condition that he pay K20,000.00 to the victim within four months after the date of sentence. The offender had paid only K2,000.00.

Held:

(1) The State proved that the condition for payment of K20,000.00 within four months was breached.

(2) No good reason was provided for avoiding the natural conclusion that the suspended sentence should be revoked.

(3) The suspended sentence was revoked, though the offender was given credit for paying ten per cent of the sum he was required to pay.

Cases cited

The following cases are cited in the judgment:

The State v Philip Wiamai CR No 1031 of 2006, 18.10.08, unreported
Tom Longman Yaul v The State (2005) SC803

APPLICATION

This was an application for revocation of a suspended sentence.

Counsel

J Morog, for the applicant
A Meten, for the respondent

22nd October, 2013

1. CANNINGS J: The State applies for revocation of the suspended sentence imposed on Philip Wiamai, the respondent, who was convicted in 2008 of one count of misappropriation of the sum of K16,848.79, the property of a relative.

2. The victim was a retired schoolteacher who was having trouble collecting his final entitlements. The respondent undertook to help him but once he got the money he put it into his own bank account and never passed it on to the victim. The respondent was sentenced to four years imprisonment. He had spent one month in custody before sentence, which was deducted from the head sentence, leaving three years, 11 months to serve in custody (The State v Philip Wiamai CR No 1031 of 2006, 18.10.08, unreported). All of that term was suspended on the following conditions:

(a) must within four months after the date of sentence pay a total of K20,000.00 to the victim and participate in a reconciliation ceremony supervised by the Village Court and witnessed by the Ward Councillor and a Probation Officer;

(b) must attend the first sitting of the National Court at Madang four months after the date of sentence, to demonstrate compliance with condition (a);

(c) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

(d) must not leave Madang Province without the written approval of the National Court;

(e) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;

(f) must attend his local Church every weekend for service and worship and submit to counselling;

(g) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;

(j) must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;

(k) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

3. The State says that he has not complied with condition (a), the most important condition, and that the suspended sentence should be revoked and the offender committed to custody. The application is being made by originating summons, in accordance with the procedure set out by the Supreme Court in Tom Longman Yaul v The State (2005) SC803. The issues before the court are:

1. has the respondent failed to comply with the conditions of his suspended sentence?
2. if yes, should the suspended sentence be revoked?
3. if yes, for how long should he be imprisoned?
   

1 HAS HE FAILED TO COMPLY WITH THE CONDITIONS OF HIS SUSPENDED SENTENCE?

4. The respondent concedes that he has not paid the victim the sum of K20,000.00 as required but points out that in May this year he gave him K2,000.00. The applicant agrees that that amount was paid, even though it was very late, but maintains that condition (a) has been breached. I find that that is the case: condition (a) has been breached in a very serious way.

2 SHOULD THE SUSPENDED SENTENCE BE REVOKED?

5. The respondent has given evidence that he has experienced financial problems, that he has been trying to find the money and that if given more time he is confident that he can pay the money in instalments.

6. None of these are good reasons for avoiding the natural conclusion in a case involving such an extensive violation of a condition of a suspended sentence that the sentence should be revoked. The sentence was imposed five years ago. The payment of K2,000.00 was only made in May this year. I agree with Mr Morog's submission that the respondent appears to have just tried to forget about his obligation to pay the money and hoped that the case would die a natural death. If he was serious about meeting his obligation he would have approached his lawyer and applied to the Court for an extension of time to pay. That would have been an indication of his genuineness and honesty. But to have avoided the processes of the Court for such a long time means that the respondent cannot be given the benefit of the doubt. He deserves no more chances. The suspended sentence will be revoked.

3. FOR HOW LONG SHOULD HE BE IMPRISONED?
   

7. I will give the respondent credit for paying 10% of the amount due (even though he was very late in paying). As he had three years and 11 months (47 months) to serve on his sentence I will apply a "credit" of 10% of that period – 4.7 months – and deduct it from the time to be spent in custody. Thus the time for which the respondent is to be imprisoned is 47 months minus 4.7 months = 42.3 months, which will be rounded out as a term of 3 years, 6 months, 1 week.

8. From that period I will further deduct the period of 25 days (since 28 September 2013) that the respondent has spent in custody after being arrested due to a bench warrant issued in connection with these proceedings. The period to be spent in custody from today is: 3 years, 6 months, 1 week minus 3 weeks, 4 days = 3 years, 5 months, 1 week, 3 days.

ORDER

(1) The application for revocation of the suspended sentence is granted.

(2) All previous orders to give effect to the suspended sentence are set aside.

(3) The offender shall be committed to custody, from today, for a period of 3 years, 5 months, 1 week, 3 days.

Judgment accordingly.
____________________________________

Public Prosecutor: Lawyer for the Applicant
Public Solicitor: Lawyer for Respondent