Police v Mondoro [2021] PGDC 6; DC5056 (5 March 2021)

DC5056

PAPUA NEW GUINEA

IN THE DISTRICT COURT OF JUSTICE

HOLDEN AT

TARI DISTRICT COURT

In the Matter of Summary Offences Act

SUM NO. 58 OF 2021

Between:

THE POLICE

Informant

And:

MARTIN MONDORO

Defendant

Tari - His Worship Mr. E. Komia

02^nd March 2021, and 05^th March 2021

CRIMINAL LAW (Summary Jurisdiction) – sentence - one count of unlawful damage of property pursuant to s. 47(1) of Summary Offences Act and used threatening behavior towards another person, pursuant to s.7(a) of the Summary Offences Act – whether defects in charges curable by the Statement of Facts -

Papua New Guinea cases cited

Saperus Yalibakut v The State (2006) SC890

State v. Samban [2007] PGNC 199; N4998 (11 May 2007)

State v Tele [2014] PGNC 341; N5802 (22 August 2014)

Kumuewa v Sogamo [2007] PGDC 96; DC620

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

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

Nebare v Segi [2007] PGDC 39; DC522 (14 June 2007),

State v Taru [2007] PGDC 114; DC645 (6 December 2007)

Police v Tura [2016] PGDC 19; DC2083 (29 September 2016),

Police v Waimen [2010] PGDC 48; DC2017 (11 February 2010)

Legislations

Summary Offences Act

Criminal Code Act

Counsels

Police Prosecutor: Senior Sergeant Mr. Welura

Counsels for the Defendant: in person

INTRODUCTION

1. This is a decision on the sentence of a young man who pleaded guilty to one count of unlawful damage to property pursuant to s. 47(1) of the Summary Offences Act, and one count of using threatening behavior towards one Hole Ayule, pursuant to s.7(a) of the Summary Offences Act.

BRIEF FACTS

2. On 16^th December 2020, the offender went to Hides 4, at Spin Road, and confronted one Hole Ayule, an employee and operator of a roller machine belonging to Hides Gas Development Company Ltd (herein after HGDC), and was an employee of HGDC, and swung a machete at Mr. Ayule who managed jump out of the roller machine to avoid the machete. The machete landed on the operator’s seat and ripped the seat apart. The offender continued his savage act by attacking one Mr. Aluari Kula, who was employed by HGDC as a spotter, and was at that time working with the operator, Mr. Ayule, and sliced the sign board. I think, Mr. Kula may have used the sign board as a shield to avoid the onslaught of the machete.
   
3. The offender continued his rampage act by continuing on to slice the cones lined up on the road to detour oncoming traffics. The matter was reported to the HGDC Security, Human Resource division, and the Community Affairs team of HGDC.
   
4. On 17^th December 2020, the HGDC community affairs team, security, and human resource division confronted the offender and demanded the offender to explain why he had acted in such cruel and aggressive manner. The offender then advised them that he was angry that HGDC never paid him his finish pay (final entitlement) and give him a reference letter he had requested. HGDC then proceeded to lodge a complaint at Hides 4 police station, and on three occasions he managed to escape when police closed in on him.
   
5. He was later apprehended on 24^th February 2020, at around 4:00 pm in the afternoon, and detained at Hides 4 Police Station. On 02^nd March 2021, he appeared in Court, and pleaded guilty to the charges.
   

ANTECEDENTS

6. The offender has no prior convictions, and is a first time offender. He is 20 years of age, and is single, and currently resides in Waru Village, at Hides 4 Area. He was formerly employed by HGDC.

ALLOCATUS

7. I administered the allocatus to him and gave him the opportunity to tell the court what the court should consider before deciding on the punishment the Court should impose on him. He said:
   

“I was upset with non - payment of my finish-pay, and also because I was not given a reference letter after I was stood down from work. I am sorry for what happened and will not do it again. I admit everything that has been alleged against me by the Police. I will not do it again.”

OTHER CONSIDERATIONS FOR MATTERS OF FACT

8. In sentencing the offender, I will consider the reasons given by the offender that, his actions arose out of frustration because he was never paid his final entitlement and not given a letter of reference he had requested.
9. I note that the offender has pleaded guilty to the two charges and, therefore, he is entitled to the benefit of the doubt. I also note that the police have not contested the matters of plea raised by the defendant (allocatus), hence, I will take the mitigating factors into consideration (Saperus Yalibakut v The State (2006) SC890).

PRE SENTENCE REPORT

10. The court notes that there is no probation officer in Tari who can prepare the pre sentence report, since the previous probation officer, Mr. Newman Numa has demised. As such, I have considered the allocatus or the plea statement and the antecedent report, presented to court and have taken those into account.

SUBMISSION BY THE POLICE

11. The police prosecutor has made a simple submission that the court should impose whatever sentence it thinks is appropriate in this matter. There is no vigorous argument on whether this court should impose a maximum sentence or any type of penalty for that matter. In other words, he has left it to this court to decide on the penalty that is to be imposed on the defendant.

SUBMISSION BY THE DEFENDANT

12. The defendant has asked for leniency and has expressed remorse for his behavior and gives his word that he will be a good citizen and will in the future refrain from such activities. He asks for a lighter penalty.

IMPOSING OF PENALTY AND PROCESS OF ARRIVING AT THE APPROPRIATE PENALTY

13. In deciding the appropriate penalty that this court is to impose on the defendant, the court prefers to follow the decision making process as set out by Justice Cannings in the case of State v. Samban [2007] PGNC 199; N4998 (11 May 2007) in which His Honor outlined the following process;

“8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is the proper starting point?
• step 3: what sentences have been imposed for equivalent offence?
• step 4: what is the head sentence for each offence?
• step5: should the sentence be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?

14. I now adopt the above decision making process to assist me in arriving at the appropriate sentence, which I am convinced will do justice.

STEP 1 – WHAT IS THE MAXIMUM PENALTY

15. The first charge of one count of unlawful damage to the property pursuant to s. 47(2) of the Summary Offences Act A fine not exceeding K400.00 or imprisonment for a term not exceeding two years, therefore the maximum penalty to be imposed is a K400 fine or imprisonment for up to two (2) years. Nevertheless, subsection 3 further allows the court to impose penalties such as that, where a person is convicted of an offence against Subsection (2), the court before which he is convicted may, in addition to any penalty that it may impose, order the person convicted to pay such amount, by way of compensation, to the person aggrieved as the court thinks fit.

16. In respect of the charge of one count of using threatening behavior toward another person, under s.7(a) of the Summary Offences Act the Act prescribes the penalty to be a fine not exceeding K300.00 or imprisonment for a term not exceeding one year.
    

STEP 2: WHAT IS A PROPER STARTING POINT FOR EACH OFFENCE?

17. The maximum sentence imposed on the charge of unlawful destruction of property is K400 fine or imprisonment up to two (2) years. I would adopt the starting point to be around eighteen months, as stated by Justice Cannings in the Samban (supra) case.

18. For the charge of using threatening and offensive behaviour under s. 7(a) of the Summary Offences Act the penalty is a sentence of up to no more than an year, or a fine of K300. For this charge I would also apply the analogy above and have the starting point to be around eight months.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

19. The charge of unlawful damage to property under s. 47 of the Summary Offences Act is also a similar to s. 444 (1) and both carry the similar penalty if two years. Given that circumstances, it is proper for this court to be guided by the principles applied in the National Court for charges pursuant to s.444(1) and also summary matter concerning penalties decided in the District Court for charges pursuant to s.47.

In the case of Samban (supra) the court suspended the entire sentence and gave a non custodial sentence with strict conditions to comply with, such as reporting to the Court on Mondays, and not allowed to travel out of Kimbe unless approved by the National Court.

Similarly, in the case of State v Tele [2014] PGNC 341; N5802 (22 August 2014), and other unreported judgement of Mesmin & John Lalu CR 469, 470, 472 & 473/ 2002, 20.12.05, Justice Cannings imposed non custodial sentence with strict conditions, after considering all the circumstances surrounding the offence.

In Kumuewa v Sogamo [2007] PGDC 96; DC620 (10 September 2007), Principal Magistrate Gauli considered extenuating circumstances and dismissed the charges invoking s.132(1)(c) of the District Courts Act.
Also in the case of Gale v Gerega [2008] PGDC 52; DC736 (2 April 2008), Principal Magistrate Gauli held that suspended sentence would be appropriate for youthful offenders, and ordered a non custodial sentence.
Other similar case is the case of State v Hemimo [2009] PGDC 33; DC885 (18 May 2009)

For the case concerning the use of threatening and offensive behavior towards another individual under s.7 of the Summary Offence Act, the courts have imposed non custodial sentences similar to the above.

In Nebare v Segi [2007] PGDC 39; DC522 (14 June 2007), State v Taru [2007] PGDC 114; DC645 (6 December 2007) Police v Tura [2016] PGDC 19; DC2083 (29 September 2016), Police v Waimen [2010] PGDC 48; DC2017 (11 February 2010) and many other matters, the courts in dealing with offences under s.7 have given non custodial sentences as well.

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

For the offence of unlawful damage to property, the range is between zero to twenty four months of imprisonment, whilst for unlawful threatening to breach the peace, would start from zero to twelve months.

It is the courts observation that the offender did case some damage to the cone and the seat if the roller. Whilst there is no exact quotation for the cost required to maintain the seat and perhaps buy a new cone, I would say that the value of the property damaged would cost some amount of money. This is an aggravating factor, I consider.

From the police prosecutions statement if facts, there were persons who were affected by the actions of the offender. It is said that the operator of the roller jumped out of the vehicle to avoid the bushfire, resulting in the slashing of the rollers driver seat.

Following on from that, the defendant then slashed the sign board held by the spotter. At thus juncture, I would comment that, the police may have not properly laid out the charges because from the wordings in the statement of fact, this court is of the view that the offender did try to inflict bodily injuries but, it was the reflex of the operator and the spotter that makes this charge look simple as it is. I am of the view that the offenders action has caused trauma and insecurity to the roller operator and the spotter, and his action subsequently put their lives at risk.

Whilst the offender argues that his actions culminated as a result of HGDC not giving him a reference letter and his finish pay, it can never be a good ground for this court to categorize his frustration as an extenuating circumstance. It was not in the hype of the moment. He deliberately chose to do what he did rather then employing another modest and diplomatic manner in requesting his finish pay and reference letter. I find this to be of no good excuse. The offenders actions were deliberated and planned. There was mens rea and actus reus at the time of the offence.

Nevertheless, can this court find that the actions of HGDC in not issuing the reference letter and calculating his finish pay amount to a provocation? I find it adversely difficult to term that as provocation, where the defendant has not clearly stated to the Court how many times his request fell on deaf ears. All he has done is waited in silence and acted out of frustration. This court cannot rely on either provocation or de facto provocation so as to mitigate his penalty.

I find that this was an issue incident and even after the incident, he was evading police arrest, and never co-operated with the police. The offender has not taken steps to apologise to the company nor say sorry to the company and the two employees. He seems to think that his actions are justified, although he has not gone back to commit another set of act.

But I find that he has pleaded guilty thereby saving the Courts time, and the State money. But what makes me concerned is his amity to evade police arrest, which brings me to question whether he will be of a good character and come with strict condition if imposed by this Court?

Be that as it may, and leaving that aside for me to return to later, I am also minded to consider the allocatus. Has he said sorry? Yes he did/ no he didn’t. I also understand that he is a first time offender and is a very young man at his prime youthful age.

From my observation and after hearing the offender himself, I note that the offender is a young man and has his family to look after, especially his parents, who are quite old.

In considering all the aggravating and mitigating factors discussed above, I will fix the penalty at twelve months for unlawful damage to the property, and six months for the breach of peace as you had in fact attempted to assault the two persons, who managed to escape as a result of their instinctive reaction.

STEP 5: SHOULD THE SENTENCE BE SERVED CUMMULATIVELY OR CONCURRENTLY?

In order to answer this question, the court has to look at the nature of offence and if the act was done spontaneously or a one off act. The statement of facts read by the police and later handed up to court, establish that, the offender had in fact tried to attack the machine operator and the spotter. He was trying to attack them, but they evaded the attack and the frustration led to the damage of the properties. It has affected the two persons mentally and physically as they definitely would have been shocked from the ordeal. I am fortified in my view that a cumulative sentence should be imposed. I therefore set the sentencing of 12 months and 6 months to be served cumulatively as the offence did have two victims who were there at the time the offence was committed. This gives a sentence in totality to eighteen months.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

Whilst looking at the total sentence the offender is faced with, I have to consider whether it is appropriate to consider the totality of the criminal behaviour involved. The court needs to guide itself against imposing a crushing sentence, at the same time consider the current trend of law and order issues arising out of such incidents that are criminal. I remind myself of the tendency, such matters before me, have in escalating into big fights involving clans and tribes, clansmen and tribesmen, and the life of people at stake in the Hela Province right now, especially with the way in which the accused’s relatives will be reacting.

Having considered it, should that deter me from imposing the penalty that is appropriate? The simplest and strongest answer is No. I consider that eighteen months would not be excessive, but then I have to also consider the relevant case authorities that have considered imposing non custodial sentence rather than imprisonment, whilst bearing in mind what I just mentioned on the trend of Law and Order issues in rife in Hela Province. This young man went on a rampage, behaving like an idiot, and he has to be punished. He has to learn a lesson. But I don't think he has to spend eighteen months in jail to learn from his mistakes. I will suspend the twelve months and impose on him six months in prison.

STEP 7: SHOULD THE PRE SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

The offender has been out on K200 bail, and has been in custody since his arrest. As such, there is no pre sentence period, which this court will consider, thus; it will not be considered.

STEP 8: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

Having discussed all the above process, the court is now left with the option to either impose a custodial sentence, or a noncustodial sentence on the offender. As I alluded to in my discussion above in step 6, on the totality principle in sentencing the defendant, I am also wary of the fact that, a message needs to be sent out to the wider Hela Community. Every case is determined on its own merit, and in consideration of the circumstance surrounding the offence. I am also of the opinion that, this court must consider the current trend of law and order issues spiraling out of control, which are fueled by such stupid people like the offender.

I pose to question myself on the consequence the offenders actions would have led to if, the two persons (roller operator and the spotter) had been injured or slashed by the offender. It would have been a different scenario, given the two person were also from Hela. This would have created a really bad situation, which I would only hate to imagine. In addition to that, Komo area where the offender comes from has transited from a very outlawed place to a very peaceful and modest place to live in, and I would say that, such actions of the defendant need to be punished so that the punishment will serve as a deterrence to the other young person and community members in Komo. I am, convinced that, if I impose a non-custodial sentence, with certain conditions, it will serve as the message for peace and normalcy in Komo and in Hela. I find that, perhaps in other parts of Papua New Guinea, a non-custodial sentence should be imposed, with very strict condition. The law needs to come down hard on people, young, old, lame, or weak, handsome or ugly, there needs to be a message sent out to the wider community.

As I have discussed in the preceding paragraph and under Step 6 of the decision making process, there is an increase in the petty crimes, such as the one before this Court, and other matter concerning assault and unlawful damages. This leads to bigger and complicated problems such as tribal fights escalating from such minor offences. This is an aggravating factor that strongly urges this court to impose a custodial sentence, but whilst that may be given a serious consideration, I also note that the offender is a young man who is very remorseful of his conduct and has pleaded to this court that he will never be involved in any of that kind of trouble any more, and will be a good citizen.

I also take into consideration the frustration he had in being thrown back and forth between the HGDC Office and ExxonMobil Office at Hides for his final entitlements and his reference letter for future employment purposes. This on the part of the company is also unfair and, the manner in which the managers and officers of the company dealt with this young man’s concern was really uncalled for and is in fact rude. This Court notes that the actions of the defendant, whilst being unlawful, was fueled out of frustration in the manner as I described as “rude” on the part of the company HGDC Ltd. I am of the unfortified conclusive view, that the action of the defendant was an act of frustration, which could be termed as a de facto provocation.

In considering all the mitigating and aggravating factors surrounding the offence, I am minded to suspend the six months in custody and impose a non-custodial sentence with strict conditions for the defendant to adhere to and comply with.

THEREFORE THE COURT HEREBY ORDERS:

1. The offender is convicted and sentenced to six months imprisonment, which shall be suspended and a non custodial sentence is imposed with the following strict conditions;
   
   • (a) The offender shall attend to Para Camp where the HGDC office is located, and shall apologise to the company management, and the two persons namely Hole Ayule, and Aluari Kula.
     
   • (b) The offender shall report to Clerk of Court and or Magistrate of Tari District Court every Fridays of Government Pay Week, and shall do supervised community work in and around the District Court under the supervision of the Magistrate or the Clerk of Court, whoever is present during that time.
     
   • (c) The offender is restrained from, interfering with the company’s operation, its employees, agents and associates in any manner and form whatsoever, and shall maintain peace at all times.
     
2. Offender’s bail of K200 is to be refunded to the offender forthwith.
   
3. Time is Abridged.
   

BY THE COURT
His Worship Mr. Edward A. Komia