N7539

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1170 of 2016

THE STATE

-v-

JETHRO IBAN

Vanimo: Geita J
2018: 24 September

CRIMINAL LAW–Variation of Probation Orders, Section 19 (2) & (6) Probation Act. 1991–The written consent of the Chief Probation Officer must be obtained. 
Cases cited:
Nil

Counsel:
Mr. Raphael Lumen, for the State
Mr. Kennedy Masket, for the Applicant/Prisoner

RULING ON APPLICATION
24 September, 2018

1.      GEITA, J:	This is an application for variation. The applicant/prisoner seeks to vary certain terms of his probation conditions and to be discharged of probation. This application is made under section 19 (1) Probation Act 1991 as amended.

Background

2.	The prisoner was convicted and sentenced to 9 years imprisonment for sexual penetration of a minor on 2 March 2017. He was to serve two years of those 9 years and be allowed on probation as long as an amount of K500 was paid as compensation to the minor within two months. He has since paid the K500 and now submits that he be discharged from probation and from prison.

The Law

3.	Applications of this nature are government by s.19 & s.23 of The Probation Act 1991. It is important to note that both sections must be read together when such applications are made. Section 19 (2) is in these terms:
	
“A probationer who has served not less than half the period of probation may, subject to Subsection (6), apply to a relevant Court for the discharge of the probation order relating to him and the Court may discharge the order.” (Underlining mine)

Section 19 (6) is in these terms:
	
“Except with the written consent of the Chief Probation Officer, an application under Subsection (1), (2) or (3) shall not be made to a Court 	unless that Court exercises jurisdiction in a declared area.”(Underlining 	mine)

Application

4.	Gathering from the facts before me in his application, it is evident that the applicant has not met the requirements under section 19 (2) Probation Act. From my count, his 3 years of probation would end on 2 March 2020. Furthermore clause 3 of Court Order of 2 March 2017 is in mandatory terms: 

“The prisoner shall serve two years (2) after which the balance is wholly suspended and the prisoner placed on 3 years’probation with conditions...”

5.	For the moment there is no evidence before Court deposing that the applicant has successfully served his two years. All that is before me is hearsay evidence from Ben Kasanda, from the Probation Office in Vanimo attesting to this effect. When faced with such situations, only the appointed Corrections Officers evidence carries weight, if such evidence is deposed properly and not evidence coming from the Probation Officer. On his part, the Commanding Officer of Vanimo Correctional Institution has righty refused to release the prisoner due to non-compliance of National Court Order clause 3. To do so would amount to contempt of Court. So on that front again, it cannot be said with certainty that the applicant/prisoner has served half the period of his probation. To my mind three things must happen or mature before future variation application may happen: 1. The applicant must have served 2 years of his sentence; 2. The applicant must have served not less than half the period of his probation and 3. Written consent must be obtained from the Chief Probation Officer in such applications. 

6.	Finally such application failing to comply with the requirements under section 19 (6) Probation Act remains fatal and must fail. The written consent of the Chief Probation Officer or his delegate must be obtained. That was not done in this case. It follows that this application must be struck out in its entirety for being incompetent.

Order

7.	Application for variation for parts of Probation Orders made on 2 March 2017 is dismissed.
_______________________________________________________________
Public Prosecutor: Lawyers for the State		
Public Solicitor: Lawyers for the Prisoner