State v Mailai [1980] PGNC 33; N272 (27 October 1980)

Unreported National Court Decisions

N272

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
JOE KOVEA MAILAI

Waigani

Narokobi AJ
27 October 1980

SENTENCE

NAROKOBI AJ:

FACTS AND CIRCUMSTANCES

Joe Kovea Mailai of Malalaua, Gulf Province, is aged between 15 and 16. He resides at Hohola. He is a victim of the education system this country has unwittingly adopted, having been pushed out of it at Grade VI. His offence is the typical offence of persons in this category. There is nothing special or extraordinary about this offence, except that it is one of an all too common break-in and stealing offences which is now an established common nuisance.

Joe Kovea Mailai is a recent member of the Mafia gang. Some regard the Mafia gang as a band of rascals. They themselves probably see themselves as decent citizens who are struggling to survive in an unfriendly Port Moresby and Papua New Guinea.

On the night in question, Joe Kovea accompanied other youths on their criminal mission. They obtained a vehicle illegally (although this accused was acquitted on this charge in the District Court), and went on to break into and steal from a W.R. Carpenter’s Store. They stole a quantity of goods totalling K1,573.36, the property of the same W.R. Carpenter (P.N.G.) Ltd.

The accused received a proportion of this property which has since been recovered. The rest of this property was either stolen again from a hiding place, or kept by the other co-offenders.

In the District Court this accused was charged with being illegally on the premises and for illegal use of a motor vehicle. The District Court convicted him in respect of the first offence and placed him on a six months good behaviour bond. The second charge against the accused was dismissed. This indictment arises out of the events of the same night.

PRINCIPLES GUIDING MY SENTENCE

I take special note of the fact that the accused is a young person, aged between 15 and 16. Although the offence he has committed is a prevalent offence, I decline to make the life of this young person a scapegoat for others. I treat him as a young person who has been led astray. I proceed against him pursuant to s.36 of the Child Welfare Act.

I also take a particular note of the fact that the accused has been in custody four months awaiting trial. There are no special facilities for young persons and often, as in this case, the young are mixed with the adults. The accused has tasted prison life for four months. He has the District Court sentence of six months hanging over his head. He knows that one faulty step on his part and he can expect no less than one half year in prison.

This offender is a victim of our national educational and economic situation. He is not a person who refused to take the opportunities provided him. He is a push-out. The consumer economy we have seems to afford no places for young men and women. Traditional societies would have had a definite place for this young man. He would have been under the apprenticeship and tutelage of his father and the elders, learning all the arts, skills and values essential for a productive and meaningful living. All these are no longer present for him, as an urban young person.

When his father goes to work, the young school leaver is left to his own devices. He gets involved with people his father may not approve of and would have little chance knowing. The young person has to spend the entire day, seven days a week without access to gardening or fishing and often without the benefit of written literature.

The young person quickly finds out that he wants the same good clothes, radios, food and recreational facilities. The young person goes about in town searching for employment, only to be greeted by aggressive dogs, fences and growling signs - “Gaukara Lasi”, “Nogat Wok”. The law of course does not permit a person under 16 years of age to engage in any physical labour, even if he could find such work.

I live and move among my people and know what agony parents go through when their sons get pushed out of school. Honest and hard-working parents often despair, throw their arms up in the air and wonder what has happened to their decent children. It is a national tragedy that young people have to be pushed out. Some, with careful guidance and through good associations, manage to steer clear of trouble. Many fall victim again, to crime.

This accused is not a young person who has had all the advantages of formal education which he has abused. He is not in any position of trust, although he could grow into a responsible adult. He is not a young person who moves from one job to another through drunkenness, or ineptitude or laziness. He has never had a start in life.

The earth and its reaches belong to all mankind. In Papua New Guinea, in the beginning, all created fruits, trees, birds and animals belonged to everyone. As man roamed the forests, he hunted and gathered what he needed and left the rest for others. When he came to build “static” human settlements, he began to draw boundaries and define property, that which is to be collectively owned and that which is to be individually owned.

The next stage after settlement, comes industry. Goods that a man creates are, by virtue of his industry, his property, provided first that he obtains the raw materials justly. Man may sell or hire the fruits of his labour for a fee. Thus, through a common denominator, such as money, man may acquire goods his fellow man has, by his labour, created.

Now, then comes the industrial age where, even the manufacturer or the labourer, does not actually own the goods he creates. These goods are owned through an intricate system of capital ownership, based on an intricate web of laws. At this stage, an over-supply of goods may be produced, but their value is measured according to economic laws that guarantee profitability. Goods are produced and stored, not so as to increase human welfare and progress, but to ensure greatest monetary returns to the owners, legally defined.

Thus, we reach a stage where, if, as in the present case, the young person cannot make his own goods, then he must buy them with money. However, as a handicapped person, he is greatly disadvantaged. Not having been equipped educationally, he cannot trade his services for the common money denominator which would enable him to buy the goods and services he is entitled to have.

There is an added problem in countries like Papua New Guinea. We do not manufacture goods in this country. Little employment opportunity exists for young persons of the accused’s type to have access to. They cannot realize the ideals of our Constitution, nor can they attain the rights that are morally and constitutionally theirs.

Can courts continue to lock young men of the accused’s type behind bars while few men roll in superfluous wealth? Can we lighten the burden of the poor, the push-out youths and their parents by long imprisonments?

It is universally recognized that the bodily needs of man are intricately woven into his spiritual needs. As a father, watching my children grow up, I discern this even more clearly. When one child does not get what his brother gets, bodily, this leads the child who misses out to protest and even to disrupt family peace and order. He may resort to violence. The spirit of man, which is the core of his moral integrity, is wounded and embittered when he suffers bodily ills, and deprivations, in an atmosphere that promotes indulgence, affluence and indifference. The inevitable result is growing impoverishment for the entire nation.

I see and hear the wail of anguish and despair rising from the oppressed hearts of the poor youths who have been rejected with contempt and disdain. This is surely an imprecation to which justice shall hearken (Sirach 4: 1ff).

We have not done much for the young people. Even less is done to prepare parents to cope with situations in which young find themselves pushed out and uneducated.

It is true property has been damaged and property has been stolen, at night. This is a serious offence. But, it is an offence committed by a young person, with flesh and blood, with parents, friends and relatives. In the natural order of things, goods are of subordinate value to man.

A person of the accused’s age has no special reformatory school. He is too big to be regarded as a boy and yet he does not enjoy the voting rights nor is he at liberty to engage in contracts. He cannot secure a loan for a small industry, and regulations make it impossible for him to operate productively, even if he tried.

Imprisonment is, after all, the ultimate sanction left in our legal and penal system. It is being used all too readily with the result that its retributive effect may not be all that significant. Besides, it is a familiar story that young first offenders often learn more tricks from the hardened criminals. Young persons are often subjected to indecendies of one sort or another.

This accused has pleaded guilty. His share of the spoils of his crime have been recovered. He has had a taste of prison life for four months. He has a six months good behaviour bond hanging over his head. Certainly, he earned these by his criminal conduct. However, in sentencing youths, I consider it part of the Court’s duty to protect the young person.

This can be done by counselling. I take the welfare of the accused into account as the most paramount consideration. My inquiries with Brother Gabriel of the Division of Child Welfare reveal that a youth of 15 or 16 years is much too old to be taken into the Director’s custody, care and control.

In considering whether a custodial or non-custodial sentence would serve the paramount interests of Joe Kovea Mailai, I have come to the conclusion that I ought to adopt the latter course. I do not see any value in giving yet another good behaviour bond when he already has one.

I therefore sentence him to the rising of the Court. It means that the accused is not an unmarked man. There is a criminal mark against his name. Should he break an important law of Papua New Guinea and appear before the National Court, he is sure to get an appropriate custodial sentence, taking into account the present conviction. The accused is sentenced to the rising of the Court, with a strong warning and advice that he ought to contact Hohola Youth Centre and the National Youth Council for any assistance. He is also advised that he should keep away from the Mafia gang or any other gang for that matter.

Solicitor for the Plaintiff: L. Gavara-Nanu, A/Public Prosecutor

Counsel: V.V. Noka

Solicitor for the Defendant: D. J. McDermott, A/Public Solicitor

Counsel: E. Browne