State v Alphonse [2008] PGNC 177; N3533 (4 December 2008)

N3533

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 629 OF 2008

THE STATE
Applicant

V

LINDEN ALPHONSE
Respondent

Kimbe: Cannings J
2008; 15, 16 October,
4 December

RULING

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

The State applied for revocation of a prisoner’s suspended sentence on the ground that he had failed to comply with the conditions on which the sentence was suspended.

Held:

(1) The State has proven on the balance of probabilities (the appropriate standard of proof in these sorts of matters) that four of the conditions have not been complied with.

(2) The best way of cultivating a culture of compliance with court orders in probation matters is to come down hard on those who don’t play by the rules. That is the only way of being fair to those who have been complying with the conditions of their suspended sentences.

(3) The suspended sentence was revoked and the prisoner ordered to serve the balance of his sentence in custody.

Cases cited

The following cases are cited in the judgment:
The State v Linden Alphonse (2006) N3021
Tom Longman Yaul v The State (2005) SC803

Abbreviations

The following abbreviations appear in the judgment:
CR – criminal case reference
J – Justice
N – National Court judgment
No – number
OIC – officer-in-charge
OS – Originating Summons
SC – Supreme Court judgment
v – versus

APPLICATION

This was an application for revocation of a suspended sentence.

Counsel
F Popeu, for the applicant
R Beli, for the respondent

4 December, 2008

1. CANNINGS J: Linden Alphonse, the respondent, was convicted in 2006 of the offence of escaping from lawful custody. He was given the statutory minimum sentence of five years. Four years of the sentence was suspended due to mistreatment at the hands of correctional officers upon his recapture, breach of his human rights and other mitigating factors (The State v Linden Alphonse (2006) N3021).

2. By the date of sentence, 23 March 2006, he had spent one year, four months, one week and one day in custody. He was released on that day, with three years, seven months, two weeks and six days still to run. His sentence was suspended, subject to a number of conditions.

3. The State says that he has not complied with those conditions. It is applying for revocation of the suspended sentence. 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.

4. 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?

5. Eight conditions were imposed:

1. The offender shall comply with a church activity program, which shall be ratified by the National Court within one month after today.
   
2. The offender shall comply with a community work program which shall be ratified by the National Court within one month after today.
   
3. There shall be a probation report submitted by the Community Corrections and Rehabilitation Service to the National Court at Kimbe every three months after today.
   
4. The offender shall not consume alcohol or smoke tobacco or any other substance.
   
5. The offender shall not leave West New Britain without the leave of the National Court. If there is to be an application for leave it shall be submitted through the Kimbe office of the Community Corrections and Rehabilitation Service.
   
6. The offender shall co-operate with the Kimbe office of the Community Corrections and Rehabilitation Service and with all persons nominated to supervise his compliance with the church activity program and the community work program.
   
7. The offender shall keep the peace and be of good behaviour.
   
8. Breach of any of these conditions will mean that the prison sentence will crystallise, ie the offender will go to gaol for the balance of the period of probation.
   

6. Mrs Elizabeth Passingan, the OIC of the Kimbe branch of the Community Based Corrections Office (the probation office), deposes in an affidavit that the respondent has not been reporting to or co-operating with her office. The State’s application is based on her evidence.

7. Against that, the respondent maintains that he has been complying with his community work program. He says that he only ran into problems this year when he got sick and spent time in hospital.

8. He has furnished a statement by his ward councillor, the Deputy Mayor of Kimbe, Mr Benny Fidelis, that he faithfully participates in community work. Mr Fidelis states that the respondent and his older brother became very sick early this year and his brother actually died as a result.

9. I find the statements of the respondent and Mr Fidelis difficult to accept. Both are rather vague. Mr Fidelis does a lot of good work in the local community supervising probationers but the statement that he has signed is not detailed and it is not sworn. Mr Fidelis did not appear in court to support the respondent’s side of the story. I cannot attach much weight to his statement.

10. The only report from Community Corrections on the respondent’s criminal case file, CR No 155 of 2006, is the first one due after he was sentenced. It is dated 28 June 2006. It is a favourable report, showing that his supervisor was Mr Fidelis, he was working with the parks and gardens section of Kimbe Town Authority and he remained suitable for probation.

11. Having considered all that evidence, I accept Mrs Passingan’s affidavit as accurate. The respondent has not reported to the Community Corrections Office since June 2006. The reasonable inference to draw (which has not been rebutted successfully by the respondent’s evidence) is that the respondent has not been complying with his church activity and community work programs since then.

12. I find that the State has proven on the balance of probabilities (which I consider is the appropriate standard of proof in these sorts of matters) that the following conditions have not been complied with:

• No 1 – he has not complied with his church activity program since 28 June 2006;
  
• No 2 – he has not complied with a community work program since 28 June 2006;
  
• No 3 – regular reports by Community Corrections have not been submitted (due to his failure to report to the probation office) since 28 June 2006; and
  
• No 6 – he has not co-operated with Community Corrections since 28 June 2006.
  

2 SHOULD THE SUSPENDED SENTENCE BE REVOKED?

13. No good reason has been advanced for failure to comply with the conditions, except perhaps for the part of this year when the offender was hospitalised. But even then, there is insufficient evidence before the court to back up that claim.

14. This is a classic case of a prisoner who was given the chance by the court to get his life back together. But he has messed up his chance. He was given a fair sentence and the conditions imposed on him were not onerous. They are the sorts of conditions imposed by the National Court in Kimbe on more than fifty offenders over the last three years.

15. The bulk of the prisoners have complied with the conditions of their suspended sentences. Some have paid compensation as ordered by the court and have been able to continue serving their sentences outside jail. Regular court hearings have been held at which the court considers progressive reports filed by Community Corrections. West New Britain has perhaps the most effective community-based sentencing system in the country.

16. This is due to the hard work and dedication of Mrs Passingan and her small team of committed officers and to the co-operation of the vast bulk of the probationers.

17. In this province, we are developing a ‘culture of compliance’ with orders of the court in probation matters. The best way of cultivating that culture is to come down hard on those who don’t play by the rules, such as the respondent. That is the only way of being fair to the many probationers who have been complying with the conditions of their suspended sentences.

18. The suspended sentence must be revoked.

3 FOR HOW LONG SHOULD HE BE IMPRISONED?

19. I will give the respondent credit for complying with his conditions for the period from 23 March to 28 June 2006: three months and five days.

20. He was arrested and placed in custody on 9 September 2008 and has remained in custody from then until today, 4 December 2008, a period of two months, three weeks and four days. I will also take that into account.

21. The sum of those two periods is six months and two days.

22. Under the order of 23 March 2006, he had three years, seven months, two weeks and six days to serve. Deducting six months and two days from that period results in a period of sentence still to run of three years, one month, two weeks and four days.

23. I will sign a warrant of commitment to custody to ensure that the respondent is imprisoned from today to 22 January 2012.

24. I point out that under Section 120(2)(a) of the Correctional Service Act there is to be no remission of any part of this sentence.

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, to serve the balance of his sentence for escape, until 22 January 2012.

Judgment accordingly.

Public Prosecutor: Lawyer for the applicant
Public Solicitor: Lawyer for respondent