Nebare v Gola [2007] PGDC 84; DC619 (20 July 2007)

DC619

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS GRADE FIVE CRIMINAL JURISDICTION]

GFCr 29 of 2007

BETWEEN

TOBY NEBARE
Informant

AND

JOSEPH ANDAMBO GOLA
Defendant

Goroka: M Gauli, PM
2007: July 20

CRIMINAL - Particular offence – Wilful and Unlawful damage to property – Drunk – Action not influence by alcohol - Plea – Guilty – First offender – Custodial sentence as deterrence.

Cases Cited
The State –v- Manga Kinjip [1976] PNGLR 86

References
Nil

Counsel
For the Prosecution – Sergeant Mark Yamuje, Goroka Police Station
For the Defendant – In Person

20 July 2007

SENTENCE

M Gauli, PM: The defendant Joseph Andambo Gola, a male aged 22 years pleaded guilty to the charge of wilfully and unlawfully causing damage to a property of another, pursuant to Section 444 (1) of the Criminal Code Act, chapter 262. This provision states and I quote: “A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated, is a misdemeanour.”

2. Facts

The facts to which the defendant pleaded guilty to are as follows. That on Sunday the 11 of February 2007 at about 8:00 am at the Goroka Main Market bus stop, the defendant approached a 25 seater PMV bus registration number P. 0152A. And he asked the driver and the owner of the bus, Mr. Daniel Leme for some money to buy beer at the Kakaruk Market. Mr. D. Leme told him that he did not have money to assist him. The defendant swore at Mr. Leme and walked over to his friends some distance away from the bus. After talking to his friends for few minutes, the defendant walked back to the said bus. Without saying anything the defendant opened the driver’s door and punched Mr. D. Leme the driver. In the bus were some female passengers with their children on board. The driver noticing the danger, he drove off for the safety of the passengers. While driving away the defendant picked up a stone, he threw it, landed on the rear windscreen of the bus and caused damage to it. The damaged windscreen is estimated to cost about K2, 563.66. The driver drove straight to the police and reported the incident. And the police apprehended and charged the defendant for the offence. At the time the defendant appeared to be drunk.

3. On plea the defendant said that he is sorry for what he did and he asked the Court for leniency. He said he intended to compensate the victim for the damage he caused to the bus. He said he had some beer but he was not drunk and he knew what he was doing.

4. I have considered the defendant’s plea of guilty, his statement in defence and the statement of the facts. I am satisfied that he made his plea in plain and unmistakable terms. It is a well established law in our jurisdiction that a judge or a magistrate must only accept the plea of guilty if it is made in plain, unambiguous and unmistakable terms – the case of The State –v- Manga Kinjip [1976] PNGLR 86, at 87 applied. The defendant admitted throwing the stone that caused the damage to the rear windscreen of the bus. He also said that though he had consumed beer he was not drunk and he knew what he was doing. On that basis I considered that it is safe to accept his plea of guilty to the charge.

5. Sentence

In sentencing I take into account that the defendant has pleaded guilty to the charge. His plea of guilty has saved much time and cost than if the matter had gone into trial. He is also a first time offender. He is married with two wives and three children al aged between one to four years. However I consider his reasons for damaging the windscreen is quite unlawful and unacceptable. He asked for money from the driver of the bus and when he was told that there is no money to assist him, the defendant resorted violently by punching the driver and damaging the windscreen. His action did not reflect on his maturity as an adult family man. There was nothing to show that he was provoked by the driver of the bus that caused him to react in the manner he did. Being a family man, he should have been doing some positive things to care for the family instead of begging money from small PMV operators who are trying to make a living for themselves.

6. He had consumed some liquor but he was not affected nor did he act under the influence of alcohol. He knew what he was doing. The defence of insanity and intoxication under Section 28 and 29 of the Criminal Code Act do not apply here because the defendant said that he knew what he was doing and he was not affected by alcohol.

7. The sentence for the charge under Section 444 (1) of the Criminal Code Act for wilful and unlawful damage to property carries a term of imprisonment not exceeding two years. I take into account of the defendant’s mitigating factors as stated above. However I also consider that for a person to go about the street causing damage to a property belonging to another without reasons must call for custodial sentence. I have considered the Section 19 (1) of the Criminal Code and Section 132 (1) of the District Courts Act which calls for non-custodial sentence. These sentencing options should be used where there exists exceptional circumstances in a particular case. In the present case I am unable to find any exceptional circumstances exists here. The vehicle owners want to drive around the streets without fears of being harassed and their vehicles interfered with. The law need to protect their freedom of driving around. The sentence to be imposed must not only be seen as a punishment to the offender but also as a purpose of deterring future like offenders.

8. For the fore going reasons I convict the defendant and sentenced him to twelve (12) months imprisonment in hard labour. I deduct seven (7) weeks for time in custody. Defendant to serve out ten (10) months one (1) week in prison.

For the Prosecution - Sergeant Yamuje, of Goroka Police Station
For the Defendant - In Person