State v Peraki [2003] PGNC 42; N2463 (18 September 2003)

N2463

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1371 of 2003

THE STATE

-v-

ROCKY WALESA PERAKI

Wabag : Jalina J
2003 : 25th August
: 18th September

CRIMINAL LAW – Stealing – Sentence – Plea of guilty – Stealing of State Vehicle by former State employee with spare key – Vehicle stolen as retaliation for refusal to refund personal expenditures and underpayment of entitlements – Vehicle hidden in another province for almost two years – parts of vehicle stolen – Recovery and Restoration of vehicle at huge public expense – Unilateral action seeking to hold the State at ransom – need for deterrence – Custodial sentence necessary - Criminal Code Act s.372(1) and (10).

Case cited:

Wellington Belawa –v- The State [1988-89] PNGLR 496

Counsel:
S. Kesno for the State

P. N’dranoh for the Prisoner

18th September 2003

JALINA J: The prisoner Rocky Walesa Peraki of Lakuni Village, Kandep, in the Enga Province has been charged that he on 3rd July 2001 at Pina, stole a Toyota Land Cruiser Utility Registration No. PAC 397 valued at K80,000.00 the property of the Independent State of Papua New Guinea. He has pleaded guilty to the charge.

Facts put to the court by the State Prosecutor for purposes of arraignment as well as evidence on file shows that the prisoner was previously employed by the Porgera District Administration as a driver for 2 years but was terminated for misconduct relating to his employment and paid his entitlements. Though he came from the Kandep District he did not return to Kandep but remained in Porgera after his termination.

On 2nd July 2001 he sent a note to the Deputy District Administrator requesting assistance to have him together with his personal effects transported to Birip, his wife’s village, which was not far from Wabag Town.

So on 3rd July 2001 he was assisted from Porgera to Birip Village with some of his clansmen but when he arrived at the house his wife was living in, he was told that she had gone to Pina with the house key so the prisoner insisted that the driver drive him to Pina to locate his wife. Pina is a fair distance away from the main Okuk Highway.

After they had reached Pina, the driver got off the vehicle, pulled out the key from the ignition and went away to attend to the call of nature. The prisoner then got into the vehicle, started it with a spare key he had and drove off leaving the driver stranded. The driver had to then walk all the way to the main Okuk Highway to seek help and reported the matter to Wabag Police.

The vehicle was not seen until March 2003 when it was recovered in the Southern Highlands Province.

The value of the property stolen being in excess of K1,000.00 the penalty would be seven (7) years imprisonment as set out in s.372(1) and (10) of the Criminal Code Act.

In addition to his expression of remorse during his statement on the allocutus, he tendered an Affidavit of Defence in which he sets out his reasons for taking the vehicle. They include his termination from employment without proper notice, underpayment of his entitlements by K1,368.00 after termination and his expenditure of approximately K8,116.00 of his own money on maintenance of a state-owned house at the direction of the former District Administrator.

In his submission in mitigation of sentence the prisoner’s lawyer Mr. N’dranoh has pleaded to this court to exercise its discretion under s.19 of the Criminal Code and impose a lenient sentence in view of his personal antecedents, his plea of guilty, his expression of remorse, the stolen property having been returned and this case being one that is not among the most serious stealing cases.

He went on to submit relying on the sentencing guidelines set by the Supreme Court in Wellington Belawa –v- The State [1988-89] PNGLR 496 for offences of dishonesty that a sentence of between 3 to 5 years would be appropriate.

Mr. Kesno for the State has however submitted that a custodial sentence be imposed as this particular case has aggravating factors.

In support of his submission, Mr. Kesno tendered an affidavit from one Andrew Tei, the Officer in Charge of Criminal Investigation Division (CID) at Porgera Police Station. It shows that apart from the vehicle evading both Wabag and Mendi police, the vehicle was damaged beyond repair and that some of its parts were missing when it was finally located in March 2003. The invoices from Ela Motors showed the final repair bill to the State at K22,799.93.

Further more, a report dated 19th July 2001 from the Deputy District Administrator, Mr. Peter Mokai to the Porgera District Administrator and CID in Porgera respectively, reveal that the police and the Porgera District Administration experienced a lot of hardship and inconvenience and even lives of policemen were placed at risk in pursuing the recovery of the vehicle into Magarima and Tari in the Southern Highlands Province. The following excerpt of the Report of Mr. Mokai clearly reveals this:

"THE UNEXPECTED & DEADLY ENCOUNTER

The Enga sides of the road were very safe and we travelled without any problems except the Lai River Bridge we carefully crossed over.

When we came to the Mendi side, we travelled through the Lai Valley passing many Villages. There at a small market we stopped to rest and the policemen bought smoke and buai. The people told us of the recent tribal fight close to Mendi. One of the Policemen in the vehicle (regular) is from that area so we travelled with confidence that no roadblocks or any incidents would occur.

Suddenly when we turn an uphill turn or corner drove uphill some men, about four appeared with bush knives and axes running widely at us. They were right in the front of the road so I slowed down for the policeman from the area to talk to them in their language. I, PETER MOKAI was the driver was taken by surprise when a SLR gun was pointed at the head, shouted at me to stop the engine and come out. I refused and tried to change gear to take off the gun was cocked and pointed at my head to fire. I got shocked and I was dragged out with the other policemen. I was pulled out from my shirt which torn apart. My shoes and K2,000.00 in cash with coat and handbag containing police uniforms were all ripped off and stolen.

All the policemen were told to move to the front of the vehicle and lay flat on the rough road. Then we were thoroughly checked at gunpoint. We lay at the same spot for nearly two hours. Then we were told to march towards the road to Mendi. Our bare foot was very painful and we continue to walk on the rough road for some kilometres. We look like real strangers in the night. While the ordeal took place we heard the vehicle been driven up and down the valley where we were blocked and ransacked. Later we were accommodated at a roadside village.

The next day, when we went to the scene to check for the vehicle the vehicle was totally damaged turned over several times and lying sideways and many parts have been removed, including tyres, radiators and motors."

In determining the sentence I should impose, I am extremely concerned at the tactics this prisoner has employed in addressing his grievances against the State particularly the Porgera District Administration. Instead of using lawful means such as the courts to address his grievances, he has taken the law into his own hands.

It appears from his conduct in seizing the vehicle and hiding it for over a year that his intention was to hold the State to ransom. It appears that his intention was to force the State into submission through payment of the K9,484.00 he was demanding before he could release the vehicle.

The practice of individuals or groups of individuals unilaterally seizing government as well other people’s property whether land or chattels and only releasing them after compensation of exorbitant amounts are paid are becoming prevalent in this part of our country. Such conduct should not be condoned let alone tolerated by all law-abiding citizens and where such conduct are brought before the Courts through the criminal process, then the courts should impose stiff sentences so as to sound a warning to others not to engage in similar conduct.

In all circumstance of this case, taking into account the submissions put to me by both counsel, I consider that a punitive deterrent sentence from the seven (7) years prescribed by Parliament should be imposed. The sentence I therefore consider appropriate for the prisoner in all the circumstance of this case is a period of 6 years and 6 months imprisonment in hard labour. I deduct from that sentence the 3 weeks and 3 days he has spent in custody which leaves 6 years 4 months and 27 days in hard labour.

He shall serve his sentence at Baisu Corrective Institution.

To ensure that the State obtains some restitution for the large sum of money it has expended in restoring the vehicle to its original condition and the costs in pursuing its recovery, I order that his K1,000.00 bail money be paid to the Enga Provincial Government.
____________________________________________________________________
Lawyer for the State : Public Prosecutor

Lawyer for the Prisoner : Public Solicitor