N5686

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 395 OF 2014

THE STATE
Applicant

V

ELIZABETH DANIELS
Respondent

Madang: Cannings J
2014: 15, 21 July

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

The State applied for revocation of the respondent's suspended sentence for the crime of misappropriation on the ground that she had failed to comply with the condition to pay K33,416.00 to the victim within 12 months after the date of sentence. The respondent paid only K2,000.00. Two preliminary points were raised by the respondent: that the originating summons and notice of motion were defective as neither stated the jurisdictional basis for the order being sought, for committal of the respondent to prison and that the Public Prosecutor lacked standing to make the application. As to the merits of the application the respondent apologised for not complying with the conditions of her suspended sentence and asserted that she had faced difficulty paying the money as she had been unemployed but was applying for jobs and her husband was about to obtain a bank loan and she had two school-aged children to care for and she had been actively involved in community work through her church; and she asked for the mercy of the Court.

Held:

(1)	The failure of the originating summons or notice of motion to specify the jurisdictional basis of the order being sought did not render the summons defective as it was obvious from the terms of the Court's order on sentence that an application of this nature could be made.

(2)	The application was made by the State, so the question of the standing of the Public Prosecutor was irrelevant. In any event the functions of the Public Prosecutor under Section 177(1) of the Constitution include controlling the exercise and performance of the prosecution function of the State, which includes controlling the enforcement of suspended sentences.

(3)	The application was properly before the Court and was dealt with on its merits and gave rise to three issues: (a) has the respondent failed to comply with the conditions of the suspended sentence? (b) if yes, should the suspended sentence be revoked? (c) if yes, for how long should the respondent be imprisoned?

(4)	It was concluded: (a) the respondent has failed to comply with the conditions (b) no good reason was provided for avoiding the natural conclusion that the suspended sentence should be revoked; (c) the respondent should be imprisoned for the period of the sentence less a credit in respect of the K2,000.00 paid to the victim less the time already spent in custody in connection with the matter.

(5)	The period to be spent in custody was 3 years, 8 months, 1 week, 5 days.

Cases cited

The following cases are cited in the judgment:

The State v Elizabeth Teka (2009) N3604
The State v Philip Wiamai (2013) N5390
Tom Longman Yaul v The State (2005) SC803

APPLICATION

This was an application for revocation of a suspended sentence.

Counsel

M Pil, for the applicant
A Meten, for the respondent

21st July, 2014 

1. CANNINGS J: The State applies for revocation of the suspended sentence of Elizabeth Daniels, the respondent, who was in 2012 convicted of the crime of misappropriation of the sum of K33,416.00, the property of her employer, Kwila Insurance Ltd, in the proceedings CR No 972 of 2011.

2. The respondent was on 27 July 2012 sentenced to four years imprisonment. All of that term was suspended on conditions that included the following:

2	The term of 4 years is fully suspended upon the offender entering into her own recognisance to keep the peace and be of good behaviour and to comply with the conditions herein, during the period of the suspended sentence.

3	The offender must repay the amount of K33,416.00 within 12 months, to Kwila Insurance Ltd.

4	The bail monies of K2,000.00 will be applied towards repayment of K33,416.00. ...

10	In the event the offender defaults in repaying the amount ordered to be paid in compliance with clause 1 [sic] of these orders, the offender will be immediately arrested and will serve the full term of the 4 years suspended sentence.

3. The State says that the bail money of K2,000.00 was applied towards the amount due but the respondent paid nothing of the balance of K31,416.00 within the time given by the Court, which expired on 27 July 2013, and she had paid nothing further by the date of the hearing of the application, 15 July 2014. The State claims that she has not complied with condition (3), the most important condition, and that the suspended sentence should be revoked and that the respondent should be committed to custody to serve her sentence. The application is made by originating summons.

PRELIMINARY ISSUES

4. Mrs Meten for the respondent raised two preliminary points in arguing that the application for revocation of the respondent's suspended sentence is not properly before the Court and should be summarily dismissed:

•	the originating summons and notice of motion are defective as neither states the jurisdictional basis for the order being sought, and

•	the Public Prosecutor lacks standing to make the application.

Failure to state jurisdictional basis of order sought

5. I consider that this point is without substance as the making of an application of this sort by originating summons is a proper mode of commencement and complies with the procedure envisaged by the Supreme Court in Tom Longman Yaul v The State (2005) SC803. An originating summons, to be compliant with the National Court Rules, does not have to state the jurisdictional basis for the order being sought. That requirement only exists in relation to notices of motion, under Order 4, Rule 49(8) of the National Court Rules.

6. In this case a notice of motion was filed, and it did not comply with Order 4, Rule 49(8), but that is of no consequence as the notice of motion was unnecessary. A notice of motion is only required to be filed (perforce of Order 4, Rule 37) if an interlocutory application is being made. This was not an interlocutory application. It was a substantive application made by originating summons.

7. The failure of the originating summons to specify the jurisdictional basis of the order being sought has not caused any prejudice to the respondent as it is obvious from the terms of the Court's order on sentence – particularly order No 10 – that an application of this nature could be made. The jurisdictional basis of the order being sought lies in the Court's order on sentence.

Does the Public Prosecutor have standing?

8. Mrs Meten submitted that the Public Prosecutor lacked standing to make an application for revocation of a suspended sentence and that the person who should be making the application is the Chief Probation Officer, and the application should be made under Section 20 of the Probation Act. Mrs Meten relies on the decision of Makail J in The State v Elizabeth Teka (2009) N3604 to support these propositions.

9. I have considered that case. Though his Honour highlighted the role of the Chief Probation Officer in monitoring compliance with the conditions of suspended sentences, Makail J was not required to determine the issue of whether the Public Prosecutor had standing to apply for revocation of a suspended sentence. What his Honour was dealing with was an application by a probationer (who had been sentenced to five years imprisonment for misappropriation, suspended on conditions including repayment of K37,000.00 to the victim within four months) to vary the conditions of her suspended sentence. His Honour dismissed the application as the probationer did not obtain the written consent of the Chief Probation Officer to make it, it was a late application and it was unmeritorious. His Honour then proceeded to find, on the Court's own motion, that as the probationer had breached a fundamental condition of her probation (that she repay K37,000.00 within four months), the suspended sentence should be revoked. The result was that the probationer was committed to custody to serve her sentence. Rather than supporting the respondent's argument that the Public Prosecutor lacks standing, the decision in Teka actually supports the view that the Public Prosecutor is entitled to playing a leading role, as the Court revoked a suspended sentence without any application before it to do so.

10. Any doubt about the role of the Public Prosecutor is in my view resolved by two considerations. First, it must be understood that the Public Prosecutor is not the applicant. The State is the applicant and the Public Prosecutor is the lawyer for the applicant. The question of whether the Public Prosecutor has standing is irrelevant. Criminal prosecutions are brought in the name of the State and the State has a vested and obviously sufficient interest in ensuring the enforcement of Court orders that lay down conditions on which suspended sentences are passed.

11. Secondly, one of the key functions of the Public Prosecutor is to control the prosecution function of the State in accordance with Section 177(1) (functions of the Public Prosecutor and the Public Solicitor) of the Constitution, which states:

The functions of the Public Prosecutor are—

(a)	in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts as provided by or under Acts of the Parliament; and

(b)	to bring or to decline to bring proceedings under Division III.2 (leadership code) for misconduct in office.

12. Further functions are conferred by the Public Prosecutor (Office and Functions) Act including the duty under Section 4(1)(e)(iii) to provide counsel:

to appear before the National Court or Supreme Court in any proceeding relating to a criminal matter in which the State has an interest.

13. If the Public Prosecutor is to effectively control the exercise and performance of the prosecution function of the State, he must be permitted to control the enforcement of suspended sentences, without being subject to the 'approval' of some other person or authority such as the Chief Probation Officer. He is obliged to provide counsel in any matter before the National Court relating to criminal matters in which the State has an interest, and this includes proceedings for enforcement of suspended sentences, which he is constitutionally entitled to initiate in the name of the State.

14. Neither of the preliminary points raised by the respondent has substance. The application for revocation of the suspended sentence is properly before the Court and will now be dealt with on its merits.

SUBSTANTIVE ISSUES

15. As I indicated in The State v Philip Wiamai (2013) N5390 an application for revocation of a suspended sentence gives rise to three substantive issues:

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

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

16. The respondent concedes that she did not pay the victim the sum of K33,416.00 by 27 July 2013. She paid only K2,000.00. She has not paid any more by the date of hearing of this matter. Clearly order No 3 of 27 July 2012, which imposed a fundamental condition on which the sentence was suspended, has not been complied with.

2	SHOULD THE SUSPENDED SENTENCE BE REVOKED?

17. The respondent apologised for not complying with the conditions of her suspended sentence and asserted that she had faced difficulty paying the money as she had been unemployed but was applying, and had been short-listed for jobs, including at Modilon General Hospital, Madang. Her husband was about to obtain a bank loan and she has two school-aged children to care for and she has been actively involved in community work through her church. A glowing character reference was provided by Reverend James Kwalimu Karava of the United Church Madang Congregation. The respondent asked for the mercy of the Court.

18. 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 time for payment of the money expired more than 11 months ago, on 27 July 2013. If the respondent had come to Court before then and asked for more time and explained her difficulties, her application could have been considered then. But when a probationer in effect goes missing and makes no attempt to deal with the problem, the impression is created that she just tried to forget about her obligation to pay the money and hoped that the case would die a natural death. 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. The suspended sentence will be revoked.

3	FOR HOW LONG SHOULD THE RESPONDENT BE IMPRISONED?

19. I will give the respondent credit for paying K2,000.00, which is approximately 6% of the amount due, K33,416.00. I will apply a "credit" of 6% of the sentence of four years calculated as follows:

0.06 x 48 months = 2.88 months = 2 months, 3 weeks, 6 days.

20. A further credit will be applied to reflect the time recently spent in custody, in connection with this matter, from 19 May 2014 to 5 June 2014, a period 2 weeks 3 days.

21. The period for which the respondent is to be imprisoned is calculated in accordance with the formula L – (C + T) = P, where:

•	L is the length of sentence (4 years),
•	C is the credit in respect of money paid (2 months, 3 weeks, 6 days),
•	T is the post-sentence time in custody (2 weeks, 3 days),
•	P is the period to be served in custody.

22. Thus: '4 years' minus ('2 months, 3 weeks, 6 days' plus '2 weeks, 3 days) = '4 years' minus '3 months, 2 weeks, 2 days' = 3 years, 8 months, 1 week, 5 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 respondent shall be committed to custody, from today, for a period of 3 years, 8 months, 1 week, 5 days.

Judgment accordingly.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for Respondent