State v Hundap [2004] PGDC 70; DC565 (14 April 2004)

DC565

PAPUA NEW GUINEA
[In the District Court of Justice
Sitting In its Criminal Jurisdiction]

DCCr 172 OF 2004

THE STATE

V.

OVEN HUNDAP

Tabubil: P. Monouluk
2004: 14th April

SENTENCING

Summary Offences – Conveying property reasonably suspected of having being stolen – Section 16 Summary Offences Act Chp. 264 – Defendant an employee conveyed slurry concentrate containing gold the property of his employer OTML – Defendant pleaded guilty.

Summary Offences – Sentence- Conveying of slurry concentrate suspected of having being stolen earlier – Conveying slurry concentrate the property of employer – Prevalent offence in Tabubil – Need for deterrent sentence – Family consideration not appropriate in premeditated offences – Relevant only in offences committed under extenuating circumstances - Offence not committed under any extenuating circumstances – Appropriate penalty – Imprisonment.

Constable Paul Irie for the State.
Defendant in person.

14th April, 2004.

1. P. MONOULUK: You pleaded guilty to one charge of having conveyed on Wednesday 31st March, 2004 slurry concentrate containing gold thereby contravening Section 16 Summary Offences Act Chp. 264. The State believes on reasonable grounds that the concentrate was stolen earlier on from the Ok Tedi Mining Limited (OTML) at its Mt. Folomian Mill where you also work.

2. The court heard that you were an employee of OTML. You were a shift worker who usually works in the night. Your place of work was at the grinding section of the Mill where slurry concentrate is processed before piped down to Kiunga for shipment overseas. On Wednesday 31st March, 2004 at about 7:30 am after your routine night shift has ended you were seen on an OTML bus together with others heading home into Tabubil. Acting on a tip-off OTML security quickly stopped and searched all OTML motor vehicles heading towards Tabubil at the Helsinki Check Point. The bus you were inside was thoroughly searched and found inside your carry-on bag was a plastic wrap containing some concentrate. A further test at the laboratory revealed that the concentrate although small in amount contained high grade gold with a value of more than K2,000.00. Upon presentation of the statement of facts by the State you further affirmed its content and the court proceeded to accept it as evidence in support of your guilt.

3. I then asked you to address the court in respect to sentence and this is what you have to say. You said that it was true that you had conveyed the concentrate. You explained that you got it for your own use – that you had some family problem (I suspect you intended to sell the gold and use the money to sort out your problem). You further added that the amount of concentrate conveyed by you would not have affected OTML’s operation. You also asked the court to take into consideration the fact that OTML has terminated you as a consequence of that and the court be mindful that your family might suffer further should the court decides to imprison you. I take it that you prefer a penalty other than imprisonment.

4. The State, on the other hand, calls for your imprisonment. The State reminded me of past cases and my sentencing trend where I have imprisoned offenders for very similar offences. The State says that as an employee of OTML and by virtue of your position you had access to such property however you have abused your position. The State insisted that the court must impose a severe penalty bearing in mind the prevalence of such offence against OTML and with the view to deter others as well.

5. The offence of conveying property suspected of having been stolen and its penalty is prescribed for under s. 16 of the Act (supra). Anyone who is convicted under this head is liable to be fined a maximum sum of K200.00 or imprisoned for a period not exceeding two (02) years. It is unfortunate that the District Courts which most often deal with offences under this Act have not endeavored to pursue publication of judgment like the National Court does to ensure some form of consistency in decision making. Presently magistrates are left entirely on their own to decide criminal cases on the issue of appropriate penalties based on their own assessment.

6. I now bring my mind to your case. I note that you have pleaded guilty to the offence thus making it easier for the State and the court as well. You have maintained this position since the 31st of March, 2004. This is the first time in your life you have been convicted of an offence and I accept your claim that you have been terminated as a result and because of that your family has suffered. You say that it would be more burdensome on your family should you be imprisoned. I agree with the fears you have for your family. Any father would have had such feelings. They are reasonable in the circumstances that you as a husband and father are now in. Despite these I believe there are over-riding factors that I see operating against you.

7. Firstly you were an employee of OTML and your place of work allows you unrestricted access to such property. Your action was an attempt to deprive your employer the use of its own property that you had custody of by reason of your employment. As a company, and any other organization for that matter, OTML depends on its employees to carry out their duties diligently and faithfully in the best interest of the company. There is no excuse for OTML employees to do what you did. As a mining company OTML pays its employees well – much better than the National Government and most companies in PNG do to their employees, and OTML employees are also entitled to various other annual payments. Its employees have their children’s school fees heavily subsidized and employees and their families are allowed free air travel in and around PNG. Those who reside in Tabubil like you have free fully furnished accommodation with free electricity, free water, free TV, to name a few. What more can an ordinary Papua New Guinean want. I believe the least you could do for your employer is to show your appreciation through faithful service. Sadly it is not the case as we see today. OTML has become a victim at the hands of its own employees and other contractors (in past cases).

8. Secondly, the concentrate you were caught conveying was small in amount but contain high grade gold with a market value of K2,393.73. I do note that in the recent months the price of gold in the world market has dramatically improved and that may well be the reason for a sudden increase in gold smuggling by OTML employees and others as well. I do not accept your explanation that your action would not affect OTML operations. May I say that it will soon be if such behaviour is allowed to continue. Just because OTML is a big mining company and makes a lot of money does not give you the right to do whatever you want with its property. Let me remind you that the gold was of high quality and you would have unjustly enriched yourself at the expense of your employer.

9. Thirdly, I noted that you offer no remorse for your actions. While I appreciate your guilty plea you could have gone one step further to say sorry for your actions bearing in mind what OTML has done for you and your family. I view your remark that ‘your action will not affect OTML operations’ as arrogant and an indication of lack of repentance.

10. Fourthly, this is not an isolated case. This type of offence involving slurry concentrate from OTML is one of those prevalent offences here in Tabubil. Many people particularly OTML employees, contractors and members of the public have appeared before me in similar cases. I cannot recall how many appeared before me in 2002 and 2003 however in early March, 2004 a young man was apprehended with 15 kilograms of slurry concentrate. This young man was given the concentrate by someone who works at the mill and he smuggled it out through the bushes. He refused to say who gave it to him. Imagine how much he would have got with such an amount. Prior to that two young men were apprehended at three o’clock in the morning as they were making their way into a very restricted area of all OTML operations high up on Mt. Folomian Mill in the Star Mountains where the concentrate were processed. Imagine how these two men risked their lives to climb these rugged mountains (prone to landslide) in the early hours of the morning where temperatures are usually low.

11. In the former case the defendant was imprisoned for six (06) months because he was a young man and in the latter case the two defendants were ordered to go back to their respective home provinces as they were unemployed with no permanent addresses. Despite that people have not taken heed of these court decisions and penalties. A prove of that is your case now before me and that explains why the State was quick to remind me of the prevalence of this offence and my past sentencing practices in respect to such offences.

12. Lastly, this appears to be a calculated and planned move by you. You knew the possible consequences of your actions should you be caught. As an employee I presumed you were made aware by the company through various awareness of the consequence of your actions. As a thirty five (35) year old adult you know right from wrong and fully understand the consequences of your action. As the husband to your wife and the father to your children you should have been wiser and fully appreciate the hardship your family will go through should you were caught and terminated from your employment. When we see these in this perspective you appear to me to have no excuse for your actions. There is no indication you were set up by someone else. What is apparent though is that you had planned to remove the concentrate from the custody of its owner OTML and put that plan into action on the morning of Wednesday 31st March, 2004. Unfortunately for you your plan backfired resulting in your apprehension and subsequent termination from your employment.

13. You raised a point that the court must consider the welfare of your family should you be imprisoned. I must say that this is a very important consideration but is best left to you as the head of your own family. While it is important to consider such I believe the best time to consider it is before you ever plan to do anything wrong. What good is it after you have done wrong? I believe it does not serve a good purpose in situations where offenders had actually planned before committing offences or knew well of the possible consequences of their actions or lack of it.

14. Such considerations are worth looking at in situations where an offender had acted under an extenuating circumstance, for example, he was provoked or acting under mistaken belief or acting under custom or compulsion. Of course that is not to say I have not considered your family’s welfare. I have done so but to me it does not carry much weight as it should in other examples I have mentioned above. In this case the warnings and the sign posts were made clear to you, despite that you decided to go ahead with your plan.

15. As the head of your family I believe your number one priority should have been the welfare of your family and their future and not subject them to unnecessary hardship because of your indiscretion. It is not good to pass the buck to the court to worry about your family’s welfare and future. Such responsibilities are best left to you as the head of the family. It is about time offending parents stop using their families as excuses to escape punishment.

16. Having considered all that you and the State have said, I am reluctant to impose any other penalty upon you. I believe the appropriate penalty for you is imprisonment bearing in mind all that I have said. I therefore sentence you to twelve (12) months in hard labour.

Orders accordingly.