State v Tokonai [2014] PGNC 134; N5736 (17 September 2014)

N5736

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS (FC) NO 593 OF 2014

THE STATE
Applicant

V

ANGELA TOKONAI
Respondent

Madang: Cannings J
2014: 10, 12, 17 September

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 of 2 years, 7 months, 2 weeks imprisonment on the ground that she had failed to comply with the conditions to pay K17,000.00 to the victim within 17 months after the date of sentence and to report on a monthly basis to the Probation Office. The respondent paid only K3,000.00. 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 to resign from her job several months after the date of sentence and been unemployed; and she asked for the mercy of the Court.

Held:

(1) The application 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?

(2) 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 K3,000.00 paid to the victim.

(3) The period to be spent in custody is 2 years, 1 month.

Cases cited

The following cases are cited in the judgment:

The State v Angela Tokonai (2012) N5390
The State v Elizabeth Daniels (2014) N5686
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

F Popeu, for the applicant
A Meten, for the respondent

17th September, 2014

1. CANNINGS J: The State applies for revocation of the suspended sentence of Angela Tokonai, the respondent, who was in 2012 convicted of the crime of obtaining goods by false pretence, contrary to Section 404(1) of the Criminal Code (The State v Angela Tokonai (2012) N5390).

2. The respondent was sentenced to 2 years, 7 months, 2 weeks imprisonment (the head sentence was 3 years, from which the pre-sentence period of 4 months, 2 weeks was deducted). All of that term was suspended on conditions that included the following:

(a) must by the end of June 2012 commence paying to the victim the sum of K1,000.00 per month, which shall be due at the end of each month, and which payments shall be reported to and supervised by the Probation Office and continue for 17 consecutive months; ...

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

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

3. The State has adduced evidence that the respondent paid only K3,000.00 and has not reported to the Probation Office since September 2012. The State claims that she has not complied with conditions (a) and (e), and that the suspended sentence should be revoked and the respondent should be committed to custody to serve her sentence. The application has been made by originating summons in accordance with the procedure preferred by the Supreme Court in Tom Longman Yaul v The State (2005) SC803.

ISSUES

4. 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 CONDITIONS OF THE SUSPENDED SENTENCE?

5. The respondent concedes that she has paid the victim only K3,000.00 and that she has not reported to the Probation Office since September 2012. Clearly conditions (a) and (e) have not been complied with.

2 SHOULD THE SUSPENDED SENTENCE BE REVOKED?

6. The respondent gave evidence in response to the evidence of the State. She conceded that the conditions had been breached in the manner alleged but provided an explanation. She resigned from her job at Globe Manufacturing in October 2012 due to management problems in the company and has been unemployed since then. She has tried to obtain a new job but it has been difficult. She is a single mother of two young children and the limited amount of money she has been able to earn has been devoted to the welfare of her children. She has tried to raise money through fundraising activities including sale of food packs and organising dances. She asked the Court to extend the period within which she has to pay the money to the victim. As for her failure to report to the Probation Office, this was due to the Office changing its location and she was not informed where the new location was.

7. None of these are good reasons for avoiding the natural conclusion in a case involving such an extensive violation of conditions of a suspended sentence that the sentence should be revoked. She was required to pay K1,000.00 to the victim every month for 17 months. She made three payments, each of K1,000.00, the last payment being made in September 2012. That was also the last time that she reported to the Probation Office. She has been in breach of two conditions of her probation for a period of two years. If she had complied with the monthly schedule of payments she would have made the last payment in November 2013.

8. If the respondent had come to Court as soon as she faced financial difficulty and asked for more time, her application could have been considered then. But as I said in the recent case of The State v Elizabeth Daniels (2014) N5686, 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?

9. I will give the respondent credit for paying K3,000.00, which is approximately 18% of the amount due, K17,000.00. I will apply a "credit" of 18% of the head sentence of 3 years, calculated as follows:

0.18 x 3 years = 0.54 years = 6 months, 2 weeks.

10. No time has been spent in custody since the date of sentence. The period for which the respondent is to be imprisoned is calculated in accordance with the formula set out in Daniels: L – (C + T) = P, where:

• L is the length of the sentence, after deduction of the pre-sentence period in custody (2 years, 7 months, 2 weeks),
  
• C is the credit in respect of money paid (6 months, 2 weeks),
  
• T is the post-sentence time in custody (0),
  
• P is the period to be served in custody.
  

Thus: '2 years, 7 months, 2 weeks' minus ('6 months, 2 weeks' plus '0) = '2 years, 7 months, 2 weeks' minus '6 months, 2 weeks' = 2 years, 1 month.

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 2 years, 1 month.

Judgment accordingly.
____________________________________________________
Public Prosecutor: Lawyer for the Applicant
Public Solicitor: Lawyer for the Respondent