Gale v Geregl [2008] PGDC 52; DC736 (2 April 2008)

DC736

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

GFCr 65 of 2008

BETWEEN

JULIE GALE
Informant

AND

BRUCE GEREGL
Defendant

Kundiawa: M. Gauli, PM
2008: April 02nd

CRIMINAL – Particular offence - Wilful and unlawful damage to property – Plea – Plea of guilty – Mitigating factors – Youthful first offender - Sentence.

Cases Cited:
1. The State -v-Manga Kinjip [1976] PNGLR 86.
2. Kuri Willie -v- The State [1987] PNGLR 298
3. The State -v- Akena Pawa [1998] PNGLR 387
4. Acting Public Prosecutor -v- Joe Kovena Malai [1981] PNGLR 258

References:
Nil

Counsel:
For the Prosecution - First Constable Clement
For the Defendant - In person

02 April 2008

DECISION OF THE COURT

M. Gauli, PM: Defendant Bruce Geregl aged 18 years of Kerowagi pleaded guilty to a charge of wilful and unlawful damage to property pursuant to s.444(1) of the PNG Criminal Code Act Chapter 262 which states and I quote: “A person who wilfully and unlawfully destroys or damages any property is guilty of an offence ----“.

1. Facts:

The facts to which the defendant has pleaded guilty are these: that on 27th December 2007 at Kerowagi Health Centre, the defendant argued with his father. The father is the driver of the ambulance for the Kerowagi Health Centre. During the argument the defendant got angry and he smashed three (3) side quarters glass of the ambulance on the left side. The damaged glass valued K1,457.25.

2. The defendant in admitting the charge said in his unworn statement in Court and I quote as follows:-

“The reason why I did this was because my father never paid my school fees from Grade One (1) to Grade 7 last year 2007. I supposed to be in Grade 8 this year 2008. I ask my father for my school fees he said he has no money. He is married to a new wife and when he gets he pays each fortnight, he only supports his new wife and her children but he ignores me. I though by doing what I did they would suspend him from his employment.”

3. Defendant has made his plea in clear plain and unmistakable terms. There is nothing to show that he made his plea of guilty under some duress or undue influence or with any ubiguiety. Where the plea of guilty is made on plain and unmistable terms the Court is bound to accept the plea. It was held in The State –v- Manga Kinjip [1976] PNGLR 86 at 87 by O’Leany AJ that:

“It is well established that a judge should only accept a plea of guilty to a charge if it is made in plain, unambiguous and unmistakable term.

If it is not he should refused to accept it and should direct that a plea of not guilty be entered ----“.

4. There is nothing to believe that in the present case the defendant had made a mistake in his plea of guilty nor was there any uncertainly in him when he made the plea. I am satisfied that defendant made his plea in no uncertain terms. Accordingly I am convinced that it is safe to accept his plea of guilty.

5. Sentence

The penalty for the offence of wilful and unlawful damage to property carries a term of imprisonment not exceeding two years, which is within the sentencing power of this Court pursuant to s.420 (2) of the PNG Criminal Code Act. I also consider other non-custodial sentencing options that this Court also had under s.19 (1)(e)(f) of the Criminal Code Act, and the ss.132 and s.199A of the District Courts Act and the s.16 of the Probation Act.

6. I consider the defendant’s mitigating factors. He is aged 18 years, a youthful first time offender. He never had any encountered with the law before. He pleaded guilty to the charge. His plea of guilty saves much time and costs had the case gone to trial. I also considered the circumstances under which the offence was committed. He was frustrated because his father has not financially supported him during his last seven years of education and also for his school fees for 2008 to do his grade 8. The father has partly contributed towards this offence in a way.

7. In considering sentence for a youthful first offenders, it is well established law in our jurisdiction that the Court should treat imprisonment as the last resort –Kuri Willie v-The State [1987] PNGLR 298 applied. The custodial sentence should only apply to a youthful first offender if the offence is sufficiently serious – see The State –v- Akena Pawa [1998] PNGLR 387, or where the offence is prevalent in the society – see Acting Public Prosecutor –v- Joe Kovea Malai [1981] PNGLR 258. I consider that the offence committed by the defendant is less serious and it is not a prevalent offence. He just applied his frustration at a wrong property and to a wrong person in order to release his frustrations.

8. Having said all that I consider that I should apply s.19 (1)(e) of the Criminal Code Act. And I convict the defendant but I discharged him on his entering into his own recognizance without sureties to keep the peace and be of a good behaviour for a period of 12 months

For the Prosecution - First Constable Clement
For the Defendant - In Person