Police v Waroy [2008] PGDC 32; DC701 (7 July 2008)

DC701

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE AT VANIMO]

CR: 216 & 221 OF 2008

POLICE

V

ELLY WAROY & PITER WONA

VANIMO: ALVA ARUA

2008: June 30, July 3, 4 & 7

SENTENCE

Criminal Law – Sentence – Smuggling or unlawful importation of goods into Papua
New Guinea – Defendants citizens of Indonesia.

Sentence – Mitigating factors – Plea of guilty – Cooperation with police and authorities
- Aggravating factors – Record of prior conviction for similar offence for one
of the defendant.

Sentence – Minimum fine – Court not to reduce minimum fine under any power of
mitigation.

Forfeiture – Goods – All goods that were smuggled forfeited to State – Ships or boats –
Dinghy and outboard motor used in smuggling forfeited to State.

Legislation: Customs Act 1951, chapter 101.

Cases cited: Nil

Chief Sergeant Simon Maigu for Police.

Defendants for themselves.

7 July, 2008.

A. ARUA. DCM. Elly Waroy and Piter Wona, you have both pleaded guilty to the charge that on 27 July, 2008, between 6.00 am and 7.00 am you each and severally smuggled or unlawfully imported from Jayapura, Indonesia into Papua New Guinea nineteen (19) plastic containers of petrol valued at K 11, 600.00.

The facts are that on 27 July, 2008, between the hours of 6.00 am and 7.00 am, your motorized dinghy was sighted by the Papua New Guinea Defence Force soldiers based at Wutung border post crossing over into the Papua New Guinea side. They also noticed that the dinghy was traveling very slowly and looked suspicious to them.

They therefore decided to follow it by road from Wutung border post to Vanimo (Lido) village, where the dinghy stopped at the beach. Upon coming down to the beach they confirmed that you were the only two people in the dinghy with you cargoes. They then escorted you back to Wutung police station and handed you over to the border police to be dealt with in accordance with the PNG laws.

Upon investigations, it was discovered that you both had a valid immigration clearance issued by the PNG consulate in Jayapura on 25 July, 2008, to travel from Jayapura to Vanimo as your port of call.

However, your cargo of 19 plastic containers of petrol valued at K 11, 600.00 were not declared on your travel documents. You also failed to report to the PNG border post at Wutung to be cleared by the Customs officials before proceeding to Vanimo (Lido) village. You were therefore charged each and severally for smuggling or unlawfully importing into Papua New Guinea goods in breach of the Customs Act 1951, Chapter 101.

In deciding on the appropriate sentence to be imposed on both of you, I have considered the statements you made during your allocutus, in which you both asked the court for leniency.

For you Elly Waroy, you told the court that you were the only one looking after the welfare of your family and life would be difficult for them if you are imprisoned. You asked the court for mercy and maybe to consider payment of fine.

As for you Piter Wona, you told the court that you are a student doing grade 12 at Jayapura and your education would be greatly affected if you are imprisoned. You therefore asked the court to be lenient on you.

In reply, the prosecution submitted that both of you are charged with a serious offence. This type of offences are also common around here and the court needed to consider an appropriate penalty that would be a warning to others to deter them from committing similar offences. The court was also informed that for you Elly Waroy, you have a record of prior conviction for the same offence committed some years ago.

The relevant legislation that sets out the penalty for this case is the Customs Act 1951, Chapter 101. Section 149 (5) (a) sets out the penalty provision for a charge under s. 149 (1) as follows:

S. 149 (5) The penalty for a breach of subsections (1), (2), or (3) –

(a) Subject to sections 163, 164, and 165, a fine not less than K 5, 000.00 and K 50, 000.00 or imprisonment for a period not exceeding 10 years, or both; or .....

Section 149 (5) (a) is to be read in conjunction with Sections 163, 164 and 165. The relevant sections that may need to be considered when imposing penalty under s. 149 (5) in this case are sections 163 and 165.

S. 163 MINIMUM PENALTIES.

(1) The minimum fine for an offence against this Act that is punishable by a fine is 10% of the maximum fine......

(2) A minimum fine imposed by this Act shall not be reduced under any power of Mitigation that would, but for this section, be possessed by the court.

S. 165 PENALTY ON SECOND CONVICTION

Where – ...

(a) he has been previously convicted of a similar offence,

the court may, instead of or in addition to imposing a fine, impose a sentence of imprisonment for a term of not less than twelve months and not exceeding two years, with or without the right of release on payment of a fine.

In determining the appropriate penalty to be imposed, I have given serious thought on the defendants’ plea for leniency, and considered whether there are any alternative penalties available to the court. I also note that one of you, Piter Wona is a student and as for you Elly Waroy, you have a prior conviction.

Regarding you Elly Waroy, I have considered s. 165, which deals with penalty on second conviction. I have decided not to invoke the court’s powers under s. 165 (b) because I think that it is only discretionary and not mandatory.

In considering the above, I am also mindful that any penalty to be imposed must be in accordance with the relevant statute, which is the Customs Act 1951, Chapter 101. I am also mindful of the intent or the purpose of the Act. It exists to prohibit the smuggling or unlawful importation of goods into Papua New Guinea.

Therefore, everyone, whether they be citizens or foreigners, including traditional border crossers living near the proximity of the border areas on both Papua New Guinea and Indonesian sides, must comply with the requirements of the Customs Act.

Though the two of you may be traditional border crossers, it doesn’t mean that because you are traditional border crossers, you are exempt from the requirements of the Customs Act.

Having considered all of the above, I am of the view that a fine is appropriate in the circumstances of this case.

Section 149 (5) spells out the penalty for offences committed against s. 149 (1) to be; ...

..... a fine not less than K 5, 000.00 and K 50, 000.00 or imprisonment for a period not exceeding 10 years, or both; ...

Section 149 (5) means that if a fine is to be imposed, then the minimum is K 5, 000.00 and the court does not have any discretion to go lower than that. This position is also enhanced by s. 163 of the Act, which states that;

S. 163 MINIMUM PENALTIES

(1) .....

(2) A minimum fine imposed by this Act shall not be reduced under any power of mitigation that would, but for this section, be possessed by the court.

Having decided on the penalty to be imposed, the court is also tasked with determining the fate of the smuggled goods and the boat used in the commission of the offence.

Sections 145 and 146 of the Customs Act 1951, Chapter 101, provide the legal basis under which the court could deal with such items.

S. 145 FORFEITED SHIPS AND AIRCRAFT

(1) The following ships or boats, not exceeding 250 tons registered tonnage, .........

are forfeit to the State:-

(a) any ship, boat or aircraft used in smuggling, etc ......

Section 1 of the Act defines "ship" to include any vessel used in navigation by water not propelled by oars only".

The above definition covers the 23 foot dinghy powered by the Yamaha 40 horsepower outboard motor that the defendants used to bring the goods into Papua New Guinea. Consequently, the dinghy and the motor are liable to be forfeited.

As to the forfeiture of the goods, s. 146 is clear that:-

S. 146 FORFEITED GOODS

(1) The following goods shall be forfeited to the State:-

(a) all goods that are smuggled or unlawfully imported ........

Due to the operation of s. 146, the 19 plastic containers of petrol valued at K 11, 600.00 that the defendants smuggled into Papua New Guinea are also liable for forfeiture.

In conclusion, the court passes sentence as follows:

1. Defendants Elly Waroy and Piter Wona are hereby each and severally convicted and sentenced to K 5, 000.00 fine, in default they be imprisoned for a period of twelve (12) months with hard labour to be served at Vanimo Correctional Institution.

2. The smuggled goods of nineteen (19) plastic containers of petrol are hereby forfeited to State pursuant to s. 146 (1), (a) of the Customs Act 1951, Chapter 101.

3. The boat used in the commission of the offence, which consists of a 23 foot dinghy, and the 40 horsepower Yamaha outboard motor are also forfeited to State pursuant to s. 145 (1), (a) of the Customs Act 1951, Chapter 101.

Orders accordingly.

Lawyers for the Police: Police Prosecutions
Lawyers for the defendants: Defendants in person.