State v Chikalli (No 2) [2007] PGDC 130; DC675 (26 November 2007)

DC675

PAPUA NEW GUINEA
[The District Court of Justice]

CASE NO. 197 OF 2007

THE STATE

V.

CLEMENT CHIKALLI

Tabubil: P. Monouluk
2007: 15th, 19th October; 26th November

Sentencing

Summary offences – Sentence – In possession of property suspected of having being unlawfully obtained – Section 16 Summary Offences Act Chp. 264 – Defendant in possession of 13.5 kg of gold concentrate suspected of being unlawfully obtained from the Ok Tedi Mining Ltd – Position of trust – Tougher penalty for those of whom much is given - Not guilty plea – Prevalent offence as a result of higher gold prices – Large amount of gold concentrate – Impact on victim not a major consideration on penalty – Confidence in the court system must be maintained - Family consideration not a good excuse to escape appropriate penalties – No previous conviction – Appropriate penalty – Imprisonment

Cases cited:
1. Wellington Belawa v. The State [1988-89] PNGLR 496
2. Albert Marum v. Pitu Lapai [1993] PNGLR 341
3. The State v. Max Charles, Tony Steven & Daudi Charles N2187

First Constable PW Stella Warmanai for the State
Defendant in person

26th November, 2007.

1. P. Monouluk: On the 21st September, 2007 I returned against you a verdict of guilt for having in your possession 13.5 kg of gold concentrate suspected of having being unlawfully obtained from its owner the Ok Tedi Mining Ltd (OTML). This conviction is one under Section 16 Summary Offences Act Chp. 264 and carries a fine of up to K200.00 or an imprisonment of up to two (2) years.

2. I do note from your submission on penalty that you are asking for leniency and the basis for making such a plea is that you have a wife and children to look after. Not only that but you also made it known that you are also providing for your widowed mother and your siblings. You further say that you and your wife are presently making plans to build your family home. In addition to that you say that you do not have any past bad record with the law and has been a faithful employee with various employers in town for the last twelve (12) years. And finally, you apologized to the State, the OTML and the court and prayed that the court imposes a fine upon you and furthermore places you under a community service order.

3. The State, on the other hand, wants an imprisonment term to be imposed upon you for your crime. It says that at the time of the offence you were a team leader with your former employer and had people working under you and because of that you hold a position of trust and responsibility. It further says that such offence is one of the prevalent offences here in Tabubil and there is need for the court to impose a sentence that is deterrent enough to other like-minded. The State finally called upon the court not to deviate from its sentencing trend for such offences whereby the court had in the past sentenced offenders involved with similar exhibits from the same victim company to prison terms. In your reply you apologized once more and again prayed for leniency.

4. It is important that I remind myself of what the penalty is as far as the law is concerned before I can pass the appropriate sentence. Section 16 of the Act (supra) says as follows:

"16 Property reasonably suspected of having been stolen

A person who has in his possession or who is conveying in any manner property reasonably suspected of having been stolen or unlawfully obtained who does not give an account to the satisfaction of the court as to how he came by the property is guilty of an offence.

Penalty: A fine not exceeding K200.00 or imprisonment for a term not exceeding two years. "

5. The penalty provision of this law provides a sentencing court two optional penalty type. The first being a court fine of up to a maximum of K200.00 and second being an imprisonment term of up to a maximum of two (2) years. This means that a sentencing court is now left to its own devises to determine as to which penalty option of these two best suits the crime. This would mean that the circumstances surrounding respective cases would play a major role in assisting a sentencing court to come to an appropriate penalty and therefore impose such, whether it is a fine or an imprisonment term. This situation is made even more challenging bearing in mind that there is presently no sentencing trend for such offences before the District Courts as far as this offence is concerned thus can lead to a great deal of inconsistency.

6. Despite that some help can still be sought from the National Court matter of Albert Marum v. Pitu Lapai [1993] PNGLR 341. It is in this case that the presiding judge Justice Doherty (as she then was) made an important observation that the District Courts must be mindful of when considering sentences not only on offences such as this but in many other offences as well. In this case the prisoner appealed to the National Court on the basis that the sentencing District Court was harsh in its penalty choice in sentencing him to three (3) months imprisonment. The appeal court had placed emphasis on the fact that the appellant was a businessman and had the money to pay a court fine and furthermore, the District Court said that the maximum court fine of K200.00 was insufficient to address the crime committed by the appellant. In its decision in overturning the District Court decision, the National Court held that it is erroneous on the part of the District Court to say such a thing that the maximum court fine of K200.00 that is provided by the law is insufficient and therefore a custodial sentence be imposed upon the appellant. I believe there is nothing wrong for the District Court to impose such a penalty however; the expectation by the appeal court was for it to give reasons justifying such a penalty so imposed. In the absence of convincing reasons the appeal court overturned the decision by the District Court to impose such a penalty but not before saying at p.344 that:

"... a first offender should not receive the maximum penalty, even though it was on a trial, particularly when the offence is not the worst example."

7. This particular ratio decidendi is important in so far as sentencing is concerned before a District Court. This is not to say a District Court cannot impose the maximum penalty upon a first time offender but it must be able to ask itself whether the circumstances surrounding the case before it warrant an imposition of a sentence of the maximum kind. This is the same question I have to ask myself today before passing sentence upon you. Before I can answer, it is important that I look again at this rationale.

8. While this rationale may have been one of the basis upon which the appellant court had used to overturn the decision to imprison the appellant, it would appear that the learned judge is ambiguous. It is not clear what the judge meant in saying ‘the maximum penalty’. We must be reminded that under the law (s. 16) there are two maximum penalties; the first being the maximum court fine of K200.00 and the second being the maximum imprisonment term of two (2) years. In looking at her subsequent actions it would seemed that the learned judge may have meant to say ‘imprisonment term’ when she said ‘the maximum penalty’ By looking at her actions into overturning the three months imprisonment term imposed by the District Court and substituted it with a penalty of a K200.00 court fine, and the fact that the three (3) months imprisonment term so imposed was not the maximum penalty as stipulated under s. 16, it would seem that the line of interpretation I have mentioned is the correct one.

9. While that may be the view taken by the National Court as far as sentencing is concerned before the District Courts, such may not be applicable in situations where an offender is faced with a maximum penalty provision that we often see in the Dangerous Drugs Act, the Firearms Act and few other legislations. Bearing in mind this rationale by the National Court may I now proceed to answer the question I first posed.

10. In your case you pleaded not guilty to the charge. Consequently the State had to call witnesses and in the end you were found guilty as having knowledge of the existence of the gold concentrate in the boot of the motor vehicle you were the driver of and therefore in control of. While you have the right to deny the charge that was first put to you, you can also expect the court not to ignore it when considering your sentence and the tendency would be for the court to raise the severity of the penalty as oppose to a defendant who pleads guilty. The notion behind this practice is for the court to give credit to certain conducts by defendants that enable both the State and the court to ensure justice is done in an easy and smooth manner. Furthermore, the fact that you pleaded not guilty and in the end found otherwise, you may now loose respect on two fronts. Firstly, from having breach the law itself and secondly, for having lied to the court of your innocence. Whereas the person who pleads guilty in the first place will loose respect for having breached the law yet is able to regain some degree of respect for having admitted his mistake as an honest person.

11. I do note that the offence you have committed is one of the prevalent offences in Tabubil. The increase in this type of offences came about soon after the world experienced an upsurge in the world market prices of gold in 2004. Since then this court continues to see OTML employees and its contractor employees (like yourself) appearing in court for either the charge of stealing gold concentrate or for being in possession of suspect gold concentrate. Even though OTML and its contractors pay their employees far better than most employers in the country, some of these employees continued to sacrifice their future, their family welfare and their integrity in the name of greed.

12. Despite numerous awareness by the police and the OTML, it seems that all their efforts have not made any greater impact. Even so, the possibility of going to prison for up to two (2) years for either stealing or being in possession of gold concentrate did not in any way deter reoccurrence of such offences as we see today. I agree with what Justice Ambeng Kandakasi had said in the case of The State v. Max Charles, Tony Steven And Daudi Charles N2187 when dealing with an armed robbery case where his Honor said that the National Courts have failed to increase sentencing despite the very prevalentness of such a crime in the country. While this obiter dicta was made in the context of armed robbery cases before the National Courts, such is equally relevant to the lower courts in light of the prevalentness of other offences before the District Courts. Both the National Courts and the District Court must now take some responsibility for the increase in lawlessness in the country as a direct consequence in the manner we impose sentences in light of the ever increasing law and order situation in the country.

13. No longer can we continue to blame the police or the type of laws we administer as being inadequate. The courts must ask themselves whether the type of penalties we imposed has meaningfully impacted on the society to address prevalent offences and also address issues raised by the people; after all we exercise their power. This practice of making decision in isolation of the public interest and policy must now be a thing of the past. The challenge faced by this nation in terms of law and order demands a revisit to some of the sentencing trends and guidelines that are now absolute and does not take into consideration crimes and behavior in the 21st Century. In fact some of these laws were done away with it or improved in countries we first adopted them from.

14. Despite what I have said I must remind myself that as a District Court I exercise powers subjected to the higher courts by way of precedent and in proceeding to pass sentence I hereby adopt some of the sentencing guidelines first set out in the celebrated Supreme Court case of Wellington Belawa v. The State [1988-89] PNGLR 496. Firstly, I am mindful that at the time of the commission of this offence you were a team leader with your former employer, the Flood Plain Pty Ltd. This meant that you were in charge of a group of co-workers who look up to you for leadership and guidance. To them you have become a role model that they may have aspired to become one day. On top of that your position as such carried with it a higher level of trust bearing in mind the type of property you usually come into contact with in your daily work up at the OTML Mill. The fact that you came into contact with the gold concentrate and therefore had knowledge of its presence and further failed to inform the appropriate authority’s amounts to an abuse of that trust that OTML had placed upon you over its property. I do agree with the preposition by the Supreme Court that ‘the higher the position of trust the greater the culpability’ thus if the offender holds a senior position, the greater the punishment that will be imposed upon him.

15. This preposition by the Supreme Court in the Belawa case outweighs what the National Court had said later in the Marum case. In the former case the offender had held a position of trust as a government departmental head unlike the latter where the offender was a private businessman; therefore in the former the Supreme Court had called for a tougher penalty for those who hold positions of trust and of whom much is given. The National Court was aware of this Supreme Court principle therefore, it said at p. 343 when referring to the Belawa case that:

"...caution must be exercised in adopting such a broad criteria, as it was referring to persons in positions of trust".

16. It is obvious that the position of trust test appears not to be applicable to the Marum case thus the above remarks by the National Court. In your case, the fact that you hold a position of trust as a team leader you therefore come under the category as stated in the Belawa case as a person from whom much is given, much is expected and what was later stated by the National Court at p. 344 does not apply to you for that simple reason of trust.

17. Secondly, the amount of gold concentrate found in your possession stands at 13.5 kg. To date this is the largest gold concentrate exhibit to have come before me. While I am not in a position to give its estimated world market price on such an amount if sold, I believe it would be enough to make you smile all the way to the bank.

18. Thirdly, I do note that such an amount taken away from OTML would not be felt in a big way. But if allowed to continue on then certainly it would be worrying for the company and its shareholders. This excuse about the impact on the victim should not be a major consideration to justify leniency in sentencing because it may be a basis for the prevalence of such a crime. The courts should be able to look at the broader picture of the crime itself and the possible impact it has on the business community. We know that business activities and investment anywhere depend also on the law and order aspect of a locality, therefore a crime against a corporable entity should not be dealt with in such a manner for the public to think that it is alright to steal from business houses for reasons that they can easily replace losses. In any case, the OTML is one company that continues to be victimized by its employees and other contractors alike over the years. It would amount to injustice to a victim entity that continues to suffer at the hands of those of whom it had entrusts its property to for this court to continue to be lenient on offenders of this order.

19. Fourthly, I note also that you have lost your employment with your previous employer, possibly as a result of this offence. However, soon after that you got yourself a new employment with your current employer, even though you have this offence hanging over your head. I believe you possess skills that many companies are in need of here in Tabubil and else where. Despite the allegation and the eventual conviction, your service continued to be sought after. It is obvious that this offence was of no detriment to your career prospect.

20. Fifthly, as a company employee the impact or the influence of your work is not as great to the general public as oppose to a public office holder. Whilst that may be so, confidence on the court system, on the other hand, can be tested especially in situations whereby persons of high authority or standing in the community are brought before the court. In situations like that the public attention and interest is normally shifted from the defendant to the court itself putting the court in the spot light. No longer will the public talk about his misdemeanor but they would be more interested in how the court will deal with him as a person in authority or of influence, as oppose to an ordinary citizen. In making its decision a court must not lose sight of the fact that the confidence of the public in the system must be maintained or enhanced at all times in its endeavor to deliver justice.

21. Finally, I had the benefit to review what you and the State had said in your submissions on penalty. Your submission touched on family consideration and your plans as a family. May I say that in premeditate crimes or where there are no extenuating circumstances such as your case, family consideration is no good excuse to escape from the appropriate penalty(s) for your crime. This sentiment has been expressed in a number of higher court decisions. I do note also that you have no previous conviction as far as police records are concerned. However, that is now tarnished because of this case. We must all endeavor to avoid situations whereby our integrity may be called into question. You did apologize to the victim company, the State and the Court, however such may not be considered genuine because it was made after you were found guilty. An apology that is made following a guilty plea is viewed as genuine and the offender is deemed remorseful, as opposed to an apology that comes about after trial. Such is merely convenient for the offender and comes at a greater cost to the State.

22. The State, however, is calling for your incarceration based on three points. Firstly, you hold a position of trust as a team leader at the time of the commission of the offence. Secondly, your crime is one of the prevalent offences. I do agree with the State that this particular offence is one of the prevalent offences here in this mining township of Tabubil. Despite numerous awareness by the police, the OTML and coupled with imprisonment terms meted out to those who had come ahead of you, it does not seem to arrest this negative behavior and the OTML continues to fall victim. People continue to deal with gold concentrate in manners not allowed by law and I am not too sure what would be a better penalty for continuous misconduct of this nature. As a court I am responsible to review past sentencing practices in light of the current behavior and attitude and ask myself if these sentencing practices are indeed addressing the challenges at hand. If not then as a responsible court I must raise one notch higher in my sentencing (of course, within the confinement of the law) and with the hope that it would have a deterrent effect this time. And thirdly, because of the precedent set by this court to impose imprisonment terms for those who in the past were found to be in possession of gold concentrate or found to have stolen the same.

23. Having considered what you and the State had to say and appreciating what the Supreme Court and the National Court had said in respect to sentencing I believe that the appropriate penalty for your crime, taking into consideration the circumstances surrounding your case, is an imprisonment term. I have initially considered an eight month imprisonment term for you, however in consideration of your lack of past bad records I therefore consider a term of six (06) months as appropriate.

Orders accordingly.