State v Hemimo [2009] PGDC 33; DC885 (18 May 2009)

DC885

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

GFCr 03 of 2009

BETWEEN:

THE STATE
Informant

AND:

BATALOMIEW HEMIMO
Defendant

Goroka: G. Madu, PM
2009: May 18

CRIMINAL - Wilful and unlawful damage of properties - Plea - Sentence - Criminal Code s 444 (1) Chapter 262

CRIMINAL - Sentence - Matters for consideration - Mitigating factors given prominence – Sentence suspended - placed on good behaviour bond without sureties - Conditions imposed

Cases Cited:

Paulus Mandatitip –v-The State [1978] PNGLR 128
Kali Mari –v- The State [ 1980 ] SC175
Acting Public Prosecutor –v- John Kovea Mailai [1981] PNGLR 258
Kuri Willie –v- The State [1987] PNGLR 298
John Elipa Kalabus –v- The State [1988-89] PNGLR 193

References:

Criminal Code Act, Ss 19 (1) (e) , 444 (1)
District Court Act, Ss 132(!)

Counsel:

For the State - Police Prosecution
For the Defendant - In Person

18 May 2009.

JUDGEMENT ON SENTENCE

G Madu,PM. The accused pleaded guilty to the charge of wilfully and unlawfully damaging properties by using an axe and made holes in the tanks donated by Member for Goroka.

2. The accused was charged under 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”.

3. The accused admitted that on 9tth of January 2009 at Kamusi around 4.30 in the afternoon upon distribution of the money given by Member for Goroka in the amount of K 1,500.00, he was not given his share. He was upset and made the statement “Mi tu hatwok man ya”, went to his house and took his axe. He used the axe to make penetrating holes on the three Tuffa tanks.

4. The accused in admitting the facts said, he got angry because he and his father and whole family supported the member for Goroka during the Electing period and built a grand stand for his election campaign yet they both got missed out when the money was distributed among the people...Those who were responsible for the distribution failed to consider me and my family member’s contribution.

5. The accused said that, he knows that he is wrong and will meet the cost of damage. He also said he was sorry for what he did and pleaded for mercy. It is clear that you were in sober mind when you used the axe and cut the three tuffa tanks belonging to Kamusi, Kimiau and Miseufa villages. You totally lost your temper and damaged the tanks given by the Member for the benefit of three communities. You very well knew that what you did was against the law. I find that it is safe to accept the plea of guilty to the charge. It is a trite law in our jurisdiction that where the accused made his plea of guilty plainly and unmistakably or without ambiguity then it is safe for the court to accept the plea – see The State -v- Manga Kinjip [1976] PNGLR 86 where O’Leary AJ, said at page 87:

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

I find that the accused action was unreasonable because he damaged the properties which belong to the three communities whilst he was upset over the distribution of the money which are totally two different matters. He had no good reason to do what he did and should be held responsible for his action. Under the circumstances the accused action was wilful and unlawful at the time of commission of the offence. Accordingly I find him guilty as charged.

SENTENCE

6. The penalty for wilful and unlawful damage to property carries a term of imprisonment not exceeding two years. In mitigating your sentence you have pleaded guilty to the charge thus saving time and cost to run a trial – see John Elipa Kalabus –v- The State [1988] PNGLR 193 at 197. You are a first time offender and of youthful age of 19 years – see Paulus Mandatitip & -v- The State [1978] PNGLR 128, You have co-operated well with the police during the Record of Interview – see Kali Mari –v- The State [1980] SC175.

7. You are a single man and the offence you committed is out of anger and frustration for something you did you should have been recognised for your effort however you went in too extreme. However the offence you committed is not prevalent in Goroka. I wish to take a particular note of the case Kuri Willie –v- The State [1987] PNGLR 298 Hinchliffe J discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful offenders and imprisonment be used as a last resort.

In another earlier case of acting Public Prosecutor –v- Joe Kovea Mailai [1981] PNGLR 258 Narakobi AJ in sentencing a sixteen or seventeen years old youth said that it is part of the Courts duty to protect the young person. He Honour went on to examine other options to imprisonment such as counselling, good behaviour bond and in the end decided to sentence the prisoner to the rising of the Court as he had spend sufficient time in custody whilst awaiting trial.

Though the accused is nineteen years old this court is satisfied that the under the circumstance the offence was committed the accused is entitled to be given a sentence alternative to imprisonment.

8. Under s.19 (1) (e) of the Criminal Code Act Chapter 262 and under s.132(1) of the District Court Act, this court has power to impose non custodial sentence for persons charged with indictable offences trialled summarily. In this case the provisions I have alluded above are appropriate to apply and that a suspended sentence is appropriate. Accordingly I convict the accused and sentenced him to twelve months in hard labour. I further order that the whole of the twelve months sentence is suspended and the accused is placed on good behaviour bond without sureties to keep peace on the condition that:

1. The accused pay cost of damages in the sum of K558.96 to Goroka Electorate, the owner of three tuffa tanks within six months from the date of this order.

2. The accused is not to commit any other offences including wilful and unlawful damage to properties during the bond period of twelve months.

3. Bail of K150.00 is refunded forthwith

________________________

Lawyer for the Prosecution: Police Prosecution
Lawyer for the Defendant: In Person