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State v Abaneta [2014] PGNC 80; N5622 (20 May 2014)

N5622

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (AP) NO. 48 OF 2014

THE STATE

-V-

JUDITH ABANETA

Alotau: Toliken, AJ.
2014: 20th May

CRIMINAL LAW – Suspended Sentence – Motion to commit prisoner for breach of Probation Order - Substantial breach – Prisoner committed to serve full term of suspended sentence – Probation Act 1990 ss. 17, 18, 20.

Cases Cited: Nil

Counsel:

Gore, for the State
P. Palek, for the prisoner

RULING ON MOTION TO COMMIT

20th May 2014

1. TOLIKEN, AJ: The prisoner Judith Abaneta was convicted and sentenced to 4 years by His Honour Batari, J. on 18th November 2011 for misappropriating K23,141.75, the property of her employer Napatana Lodge. The sentence was fully suspended and the prisoner was placed on probation for a period of 4 years with additional conditions over and above the mandatory conditions under the Probation Act 1990. By motion the State now seeks to have the prisoner committed to prison for breach of her bail conditions – both mandatory and additional.
   

2. Section 17 of the Probation Act provides for the mandatory conditions of a Probation Order. These are:

1. That the probationer shall remain at a place specified in the order until she is contacted by a Probation Officer.
   
2. That she reports to a Probation Officer when required to report by the Probation Officer.
   
3. She keeps the peace and be of good behaviour.
   
4. She shall not change her address without having first given reasonable notice to the Probation Officer of her intention to and so and the reasons for the proposed change of address and where she does move that she reports within 48 hours of arrival to a probation officer in her or his new location and advise the Probation Officer of the nature and place of her employment and her new address in that area.
   
5. She shall give to a probation officer reasonable notice of her intention to change employment and advise him of the nature and place of his or her home during reasonable hours.
   
6. She shall allow the Probation Officer to enter his or her home during reasonable hours.
   

3. Section 18 provides for the imposition of additional conditions which the Court may impose in addition of the mandatory conditions under Section 17(1). Such conditions may include:

1. That the Probationer shall not leave a specific area without leave of the Probation Officer.
   
2. That she or he shall pays within such period and by such instalments as the Court determine damage, for injury or compensation or loss, suffered by any person by virtue of the offence for which the probationer was convicted or shall carry out work in restitution instead.
   
3. Shall travel to and remain in a specific area.
   
4. Perform community work.
   
5. Shall pay compensating according to custom as determined by the Court.
   

4. In the prisoner's case, the following additional conditions were imposed:

1. The amount stolen being K23141.25 is to be restituted or refunded to Napatana Lodge as follows:
   
   • (i) The first instalment of K5000.00 is to be paid by the prisoner... within three (3) months [i.e.] by the 18th February 2012.
     
   • (ii) The Probationer is to be employed by Napatana Lodge ... on terms she be paid half the salary of her position level of employment;
     
   • (iii) The balance of K18,141.75 is to be recouped by Napatana Lodge by fortnightly deduction of the probationer's net by half or by 50%;
     
   • (iv) The prisoner's salary deduction at 50% pursuant to Order (1)(ii) remains in force until the balance of K18141.75 is fully recovered;
     
   • (v) The prisoner's bail of K500.00 is to be refunded and paid to Napatana Lodge as part of the first instalment of K5000.00 to be paid before 18th February 2012.
     

2. The probationer is to attend counselling to be arranged by Community Based Correction in Alotau, Milne Bay Province.

3. That the prisoner is to enter into Good Behaviour Bond to keep the peace and in the sum of K5000.00 to be called upon for payment in the event of [a] breach of the bond or Probation Orders.
   
4. Within two (2) weeks of these Orders, the probationer is to join her Local Church Women's Fellowship Group and to attend and actively participate in all its activities where practicable and subject to her employment duties during her probation.
   
5. The prisoner is not to leave or transfer out of Alotau for the period of probation.
   
6. The Community Based Correction Office is to file and serve quarterly reports on the Public Prosecutor and Public Solicitor on the responses and progress of performance of the probationer.
   

So has the probationer breached her probation conditions?

5. According to the Probation Officer's supporting affidavit, the probationer did in fact breach not only certain mandatory conditions but also additional conditions. Before going further, I do accept that the sentencing Judge's Orders did not reach the Probation Officer until the 5th day of June 2012 when sealed copies of the Orders and Warrant of Commitment were faxed over to him by the National Court Registry in Waigani and that was only after he had written to the Registry on the 14th of May 2012. It therefore took some 7 months for sealed Orders to be made available to the Probation Officer. And naturally, it would have been impractical for him to progress or effect the Order nor would it have been possible for the probationer to start complying with certain conditions such as reporting to her probation officer or attending her Women's Church Fellowship within 2 weeks from the date of the Orders. The Probationer may then be excused for those first 7 months.

6. However, the evidence reveals that she failed to report to the Probation Officer for periods after 5th June 2012:-

(a) In the month of December 2012;
(b) Almost the entire month of January 2013;
(c) The whole month of February 2013'
(d) Almost the entire month of March 2013;
(e) The whole months of April, May, June 2013; and
(f) July, August, September and October 2013.

7. I am also satisfied that she deliberately failed to comply with additional Order No.1 (v) in that she while she did get a refund of her K500.00 Court Bail and instead of paying it to Napatana Lodge as ordered, she used the money herself and then lied about it to her Probation Officer.

8. I am also satisfied that she failed to comply with additional Order No. 1 in that she failed to make the first instalment of K5000.00 within 3 months from the 18th of November 2011.

9. I find though that the Probationer did - I understand through salary deductions – repaid a total of K6208.55 leaving a balance of K16933. 20. I would also like to believe that she failed to comply with additional condition No. 4 that she joins her local church Women's Fellowship Groups and be actively involved in all their activities.

10. The probationer has therefore substantially breached her probation order and in so doing has shown contempt not only for the benevolence of the sentencing Judge but also of the complainant, Napatana Lodge who had bent over backwards to allow her to continue to work for them to repay the money she misappropriated. It took a leap of faith, I would say, for them to continue to trust her in spite of the fact that she had deprived them in excess of K23000.00 in the first place.

11. There is some material on the Probationer's report and affidavit that the prisoner breached her condition for good behaviour by continuing to steal from Napatana. Napatana did not file a supporting Affidavit to that effect so I should like to think that the prisoner is entitled to a benefit of a doubt there.

12. In the final analysis though, as I said, the prisoner has substantially breached mandatory, as well as additional conditions of her Probation Order. What then should be the consequence of these breaches?

13. Naturally, she would have to serve the full term of her sentence i.e. 4 years imprisonment. I take into account the prisoner's plea in mitigation when asked to show cause as to why she breached her Probation Order and why her suspended sentence should not be uplifted and enforced. Yes, she may have contracted Tuberculosis but she was not admitted for a long period of time. According to her, she was admitted only for about a week. And, yes, she got pregnant and had to deal with normal gestation issues but these things did not and could not have prevented her from substantially complying with conditions such as reporting to the Probation Officer. And yes, the prisoner is out of a job now but that is a situation that she forced on herself because she obviously continued to act dishonestly to Napatana.

14. There is, therefore, nothing else for the Court to do but to invoke its power under Section 20(1)(d) of the Probation Act 1990 and commit her to the whole part of her suspended sentence of 4 years.

15. In passing, I do note that additional condition No. 3 of the Order stipulated that the prisoner were to keep the peace and be of good behaviour in breach of which of she were to pay K5,000.00. I have difficulty with this condition as I think that it is a repetition of a mandatory condition under Section 17(1)(b) and hence incongruous with the whole scheme of Probations Orders and consequences of a breach as provided by Section 20 of the Probation Act. There is, therefore, no need to pursue this condition.

16. I, therefore, order that the prisoner Judith Abaneta be committed to 4 years imprisonment at Giligili Corrective Institution being the whole part of her suspended sentence dated 18th November 2011.

Ordered accordingly.

__________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the prisoner