State v Minji; State v Sakol (No 2) [2009] PGNC 177; N3794 (20 November 2009)

N3794

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 290 OF 2008

THE STATE

V

STEVEN MOLU MINJI, SIMON KOSO KERENGA, JOHN MINJI, & JAMES KAUBOI

AND

CR NO 864 OF 2008

THE STATE

V

DIDI GELWAK SAKOL

(No 2)

Minj: Makail, J
2009: 18th & 20th November

CRIMINAL LAW - Sentence - Wilful damage of property - Damage to private property - Chopping of coffee trees - Mob raid - Substantial monetary loss - No offer of apology - No form of restitution - Not an isolated incident - Convicted after trial - First offenders - Co-operation with police investigations - No injuries caused to other persons - No pre sentence report and means assessment report - Importance of - Whether suspension of sentence appropriate - Criminal Code - Sections 19 & 444(1).

Cases cited:

The State -v- Steven Molu Minji & 4 Ors (No1): CR Nos 290 & 864 of 2008 (Unnumbered & Unreported Judgment of 16th November 2009)
Aloises Peter Iboro Kovei -v- The State (2001) SC676
The State -v- Kopol Hiol: CR No of 2007 (Unnumbered & Unreported Judgment of 12th May 2008)
The State -v- Martin Sahin Terea (2005) N2816
The State -v- Betty Kaime: CR No 1973 of 2002 (Unnumbered & Unreported Judgment of 13th November 2008)
The State -v- Jan Tundobo & 4 Ors: CR Nos 822-825 & 950 of 2008 (Unnumbered & Unreported Judgment of 10th December 2008)
Richard Liri -v- The State (2007) SC883
The Acting Public Prosecutor -v- Don Hale (1998) SC564
The State -v- Jack Magal: CR No 224 of 2006 (Unnumbered & Unreported Judgment of 09th December 2008)

Counsel:

Mr J Waine, for the State
Mr N Nagle, for the Prisoners

SENTENCE

20th November, 2009

1. MAKAIL, J: On 16th November 2009, I convicted the five of you of one count of wilful damage of property, an offence under section 444(1) of the Criminal Code of Papua New Guinea. This was after you denied the charge and a trial was conducted, which started last November and got carried over to April of this year and eventually got completed on 11th November following three different court circuits. As I told you at the time I convicted you, this offence carries a maximum penalty of 2 years imprisonment.

2. In convicting you of the offence, I found that between 4 o’clock and 6 o’clock on the morning of Wednesday 31st October 2007, the five of you in the company of your accomplices numbering about 40-50, armed yourselves with bush knives and axes and entered the coffee plantation of Banz Catholic Church at Banz town. The coffee plantation is on a State land under a State lease (Mission lease) of which the Holy Ghost (New Guinea) Property Trust is the registered proprietor. You chopped a total of 2,230 coffee trees. The total value of the destroyed coffee trees is K45,658.80.

3. I also found that your actions were unlawful because you were not the owners of the land where the coffee trees were. I also found that you were frustrated and angry that your demand for the return of the land was not forthcoming from the Banz Catholic Church Pastoral Advisory Board even though it had earlier made a decision to return it to you which was subsequently endorsed by the Bishop of Mt Hagen Archdiocese: see also my judgment of The State -v- Steven Molu Minji & 4 Ors (No1): CR Nos 290 & 864 of 2008 (Unnumbered & Unreported Judgment of 16th November 2009).

4. On your allocutus, John Minji spoke on his and your behalf. In addition to that, you Didi Gelwak Sakol spoke briefly. I shall briefly high light the main points of what John Minji and Didi Gelwak Sakol said. You John Minji essentially recited what you and the others told the Court about why you chopped the coffee trees on the land. You and your co prisoners emphasized that you were formerly the traditional owners of that land. The land which the coffee plantation is located is part of your traditional land which covers a total of 100 hectares. In the 1950’s, your forefathers brought a Catholic Church priest and gave him that land to establish a mission station. This was done and this saw the first Catholic Church mission established at Banz.

5. Over the years, your Sengal-Kanem tribe’s population grew and land became scarce. As a result, you and your co prisoners made representation to the officials of the Banz Catholic Church parish and the Bishop of Mt Hagen Archdiocese to return the land where the coffee plantation is presently located to you. A decision was made which was subsequently endorsed by the Bishop of Mt Hagen Archdiocese but it took longer than expected to finalize the transfer of title. You got frustrated and angry and did what you did.

6. You then went on to ask the Court to take into account that all of you are family men and have children to care for. Your children are attending elementary school up to secondary school and you are responsible for paying their school fees and providing for their daily sustenance. You ask the Court to consider imposing a monetary fine or place you on good behaviour bond. As for you Didi Gelwak Sakol, you alerted or perhaps reminded the Court that any custodial sentence imposed by the Court should take into account the period of 1 year and 9 months you have already spent in custody since 11th January 2008.

Prisoner - Steven Molu Minji

7. You are from Sipil village in Banz of the Western Highlands Province and a member of the Senglap-Kanem tribe. You are married and have 4 children. All of them are attending Banz primary school. Your first child is in Grade 8, second child is in Grade 6, third child is in Grade 4 and the last is in Grade 3. You are a member of the Catholic Church and a first offender.

Prisoner - James Kauboi

8. You are from Sipil village in Banz of the Western Highlands Province and a member of the Senglap-Kanem tribe. You are married and have 4 children. Two of them are attending Banz primary school and Banz elementary school. Your first child is in Grade 2 and the second child is doing elementary school. You are a member of the Catholic Church and a first offender.

Prisoner - Simon Koso Kerenga

9. You are from Baura village in Banz of the Western Highlands Province and a member of the Senglap-Kanem tribe. You are married and have 2 children. They are attending Banz primary school and doing Grades 5 and 3 respectively. You are also a member of the Catholic Church and a first offender.

Prisoner - John Minji

10. You are from Sipil village in Banz of the Western Highlands Province and a member of the Senglap-Kanem tribe. You are married and have 4 children. Two of them are attending Banz primary school and Banz elementary school. Your first child is in Grade 2 and the second child is doing elementary. You are a member of the Catholic Church and a first offender.

Prisoner - Didi Gelwak Sakol

11. You are from Sipil village in Banz of the Western Highlands Province and a member of the Senglap-Kanem tribe. You are married and have 2 children. You are a member of the Catholic Church and a first offender.

12. Having considered what you have said and noting the submissions of your lawyer and the State prosecutor, I must now decide an appropriate sentence for you. When a Court is sentencing a person found guilty of committing an offence, it takes into account several legal principles of law to guide it to arrive at an appropriate sentence for the offender. One of the well established principles of law in our jurisdiction is that, the maximum penalty is always reserved for the worst type of offence under consideration. Many cases in this jurisdiction have acknowledged and applied this principle.

13. One such case is Aloises Peter Iboro Kovei -v- The State (2001) SC676, a case where the appellant appealed inter-alia a life imprisonment sentence imposed by the National Court for the brutal killing of a female following her abduction and rape. In considering inter-alia whether the sentence was severe, the Supreme Court comprising of Amet CJ, Gavara Nanu & Kandakasi JJ, observed that:

"It is a well accepted principle in our criminal jurisdiction now that, the maximum penalty prescribe by the legislature should be reserved and imposed only for the "worst type" or "worst category" of the offence under consideration. This has been made abundantly clear in the context of willful murder cases. For example, the Supreme Court in Avia Aihi v. The State (N0.3) [1982] PNGLR 92 at page 96 referred to its earlier decision in Goli Golu v. The State [1979] PNGLR 653 and said:

"In fact this Court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instance of a particular offence."

14. This principle of law emerges from the sentencing discretion vested in the Court by virtue of section 19 of the Criminal Code. This provision essentially gives the Court discretion to impose a lesser penalty upon an offender if the factual circumstances do not establish a "worst case". How the discretion is exercised depends on the factual circumstances of the case under consideration. Most importantly, the Court looks at the factual circumstances of how the offence was committed, the mitigating factors and the aggravating factors.

15. With these principles in mind, I have to decide first if your case falls into the worst case of wilful damage of property. Your lawyer on your behalf argued that it is not, while the State prosecutor argued that, it is. Given these two competing arguments, I ask; is your case a "worst case"?

16. The factors operating in your favour are first, you are first offenders. That means that, this is the first time you have committed an offence and found guilty by a Court of law. Secondly, you did not assault or threaten anyone at the time you chopped down the coffee trees. You also did not cause any trouble after the chopping down of the coffee trees. Thirdly, you co-operated with the police and admitted committing the offence during your interviews but I do not believe that, the fact that you chopped down the coffee trees makes your case any different and a lesser penalty should be imposed on you because you did not up root the coffee trees. The fact remains, coffee trees were destroyed at that time and it took time for them to re grow.

17. And following on from this observation, your case is aggravated by a number of factors. First, you destroyed coffee trees, the property of the Banz Catholic Church. You must be told in no uncertain terms and sternly that you have destroyed the property of a church of God. You should be ashamed of yourselves for doing that because not only have you destroyed coffee trees but also insulted the very church you go to worship God every Sundays. Secondly, the destruction of the coffee trees was destructive and extensive. It was destructive because the chopping of the coffee trees was indeed an act of "unlawful pruning" by some "unlawful and unprofessional" people. It was extensive because the area involved was big and the number of coffee trees destroyed was 2,230. It is no wonder, the cost is K45,658.80.

18. Thirdly, the value of the 2,230 destroyed coffee trees is K45,658.80. To my mind, this is a substantial amount of money. To reiterate the point I made earlier that it does not make any difference between chopping and up rooting of coffee trees, is the fact that, you destroyed coffee trees of the Banz Catholic Church parish. There is no doubt in my mind that these coffee trees bring in much needed revenue for the church. Once you have destroyed them, the church has missed out on its revenue from the sale of coffee cherries from these coffee trees. This is an unthinkable and coward act.

19. You must remember or in case you do not know, let me tell you this; the Catholic church or any christian church denomination in this country for that matter, relies heavily on its tithes and offerings apart from donations from its faithful members to keep it going in the service of our Lord Jesus. Any income generated business the church has is a "blessing" to the church as the income derived goes towards assisting the church in paying its expenses. In your case, the Banz Catholic Church has a big land area. It needs caretakers and labourers to look after the church ground and facilities. Where would it get its money to pay its caretakers and labourers?

20. It has been suggested and I quite agree that the caretakers and labourers’ pays come from the income generated from the sale of coffee from the very coffee trees you have destroyed. One can imagine the impact your actions had, had on the church. It is anyone’s guess!

21. Fourthly, you denied the offence and a trial was conducted to determine your guilt. You were then convicted. This means that the State and police had to spent money and time to round up witnesses to give evidence against you. As noted above, the trial started last November and got carried over to April of this year and eventually got completed on 11th November following three different court circuits. In my view, whilst I accept and respect your right of innocence until proven guilty, your denial has made your plea for leniency obscure when I consider the trouble and expense you have put the State through to prove the charge against you. The Court had to do three different circuits to deal with your case apart from the other cases.

22. When I hold this factor up against your plea for leniency because you co-operated with the police during your interviews, I find it hard to accept that your co-operation with the police during their investigations should militate against the severity of the offence and of course the sentence. Your denial of the offence in Court forced the State to prove the charge against you. As I had observed in my judgment on verdict, your trial was full of surprises and ambushes. This resulted in the trial being prolonged. Hence, it amazes me that you now ask for leniency because you had co-operated with the police in their investigations. In my view, your plea based on that reason comes too little, too late.

23. In addition to that, you did not apologize to the parish priest, nuns, catechists, and of course members of the congregation of Banz Catholic Church for what you did. Worst still, you did not even apologize to the Court for committing the offence. On your allocutus, you John Minji speaking for yourself and your co-prisoners did not say one very important word "sorry". I strained my ears to hear every single word that was uttered from your mouth during your allocutus but I did not hear you say it. What you have uttered was your recitation of the reasons for committing the offence.

24. In my view, I have already found that first, there were no lawful reasons "under the sun" if I may use the expression to drive the message home to you once again, for you to chop down the coffee trees. The simple reason is that, you are not the owners of the land and you must understand and accept that. Secondly, I have also found that your actions in chopping down the coffee trees were wilful. They were done with malice and ill will because you were frustrated and angry that it took so long for the land to be returned to you. That is why I was waiting for you to at least say "sorry" to at least beg the mercy of the Court in a more remorseful and sincere way, but you did not. I do not know whether you did that deliberately or accidentally.

25. Whatever the reason, it is not important to me now. What is important to me is that, you did not say "sorry". I take that to mean, you do not accept that what you did was wrong. In The State -v- Kopol Hiol: CR No of 2007 (Unnumbered & Unreported Judgment of 12th May 2008) I made these observations in relation to the failure by an offender to offer an apology:

"Last but not the least is that I observed and noted that you showed no sign of remorse nor did you apologize to the Court or the victim for the wrong you have done. It may have been an oversight on your part or it may have been a deliberate omission. For me, it is a serious matter which I will take into account and hold against you. It seems to me that you are adamant that what you did was justified. You are not prepared to accept that what you did was wrong. I am holding this factor against you notwithstanding your early guilty plea because to my mind, your early guilty plea is only a "lip service" to the Court and to the victim so to speak."

26. I repeat what I said in Kopol Hiol’s case (supra) here. I find that you are not prepared to accept that you committed an offence. It is clear that you are adamant that what you did was justified and there was no need to say "sorry". That is why even though you admitted in your interviews with the police that you committed the offence, you were adamant and determined to "fight" it out in Court. You were not prepared to accept that you were wrong and apologize to the people you had victimized. It is no wonder, too that you had not made any form of compensation to your victims to make right the wrong to show your remorse and sincerity.

27. Fifthly, you committed the offence in a group. You were amongst a group of 40-50 people who entered the coffee plantation on the early hours of the morning of Wednesday 31st October 2007 and chopped down 2,230 coffee trees. This is an "unlawful raid" on a coffee plantation. It was well planned and executed at a perfect time to avoid being caught. You were also armed with bush knives and axes. This is a scary sight for anyone walking in the vicinity of the coffee plantation at that time. It is no wonder, the State witnesses, Mr Petrus Malts and Mr Dominic Mur, though your tribesmen feared going close to you that morning.

28. Finally, this is not the first time you chopped the coffee trees. The first time was on 15th December 2006. This was when you brought in a surveyor to survey the land. It was said that you chopped down 500 coffee trees which cost K15,000.00 and although the matter was reported to the police, no action was taken against you.

29. When I weigh all the factors operating in your favour with the factors operating against you, I find that the factors operating against you far outweigh those in your favour. To my mind, your plea of being first offenders, being family men and co-operation with police investigations become insignificant when I hold them against the aggravating features present in your case, especially the number of coffee trees destroyed, substantial monetary loss, the victim being a church organization, no offer of apology and restitution. For these reasons, I conclude that this is a much more serious case of wilful damage of property bordering on the "worst category" and you as the perpetrators must be punished severely.

30. In addition to that, I have considered past cases of wilful damage of property in the cases of The State -v- Martin Sahin Terea (2005) N2816, The State -v- Betty Kaime: CR No 1973 of 2002 (Unnumbered & Unreported Judgment of 13th November 2008) and The State -v- Jan Tundobo & 4 Ors: CR Nos 822-825 & 950 of 2008 (Unnumbered & Unreported Judgment of 10th December 2008) and I am of the view that your case is much more serious than these cases.

31. In Martin Sahin Terea’s case (supra), the offender used a screw driver to destroy a photocopier, printer, air condition and main door of the Division of Tourism of the Bougainville Autonomous Administration. Cannings J, sentenced the offender to 1 year imprisonment but wholly suspended it on conditions inter-alia that the offender be placed under supervision of the Provincial Welfare Officer and perform community service during the period of the suspended sentence including making restitution.

32. In The State -v- Betty Kaime: CR No 1973 of 2002 (Unnumbered & Unreported Judgment of 13th November 2008), which was a decision I handed down at last November’s Court circuit to Minj where the offender wilfully damaged a police motor vehicle after she discovered her husband transporting his girl friend in it. Being upset over the discovery, the offender smashed the windscreen and also cabin windows of the motor vehicle with a stone.

33. I found two aggravating factors present in that case. First, she damaged a State property, namely a police motor vehicle. She was told that the motor vehicle did not belong to her and her husband. It was a State property and public funds were spent to purchase it for the police to use for the benefit of the community. Thus, it would cost the State, in particular the police force a lot of money to repair the damage parts of the motor vehicle or even replace it. The second aggravating factor was the extent of the damage done to the motor vehicle. The costs of the damage was K1,200.00 which showed that the damage was extensive to some degree.

34. I then sentenced her to 6 months in prison. Although there was no pre sentence report, I wholly suspended the sentence because she voluntarily appeared despite a bench warrant being issued for her arrest and detention after she absconded bail for a long time; she was a first offender; a person of high standing in the community as she held a position of Community Affairs Manager with WR Carpenters (PNG) Limited at Banz, thus unlikely to re offend; pleaded guilty to the offence and fully pay the costs of repairs of the damage of K1,200.00.

35. In Jan Tundobo’s case (supra), the offenders from Beechwood and Koropange villages in Kaupena of the Imbongu District of the Southern Highlands Province armed with bush knives and axes went to Kaupena Primary School and entered the office of the Headmaster. With the bush knives and axes, they destroyed by cutting and breaking office items such as computer, photocopier, printer scanner, cable connections etc.. The cost of the destroyed office items stood at K16,442.80. I sentenced the offenders to 1 year in prison but wholly suspended it with conditions including restitution.

36. In your case, I have reached a decision that it is a serious case of wilful damage of property but cannot be categorized as a "worst case". I have to decide:

1. what is the head sentence I shall impose on each of you?

2. should I suspend whole or part of the sentence?

3. if I suspend whole or part of the sentence, what kind of conditions should I impose on each of you?

What is the head sentence?

37. I consider that the head sentence should be between 1 year and 2 years because first, you destroyed a large number of coffee trees (2,230) and the monetary loss is substantial than Martin Sahin Terea’s case (supra), where the offender damaged a photocopier, printer, air condition and main door of the Autonomous Bougainville Administration worth K2,000.00, Betty Kaime’s case (supra) where the offender smashed a windscreen and cabin windows of the police vehicle valued at K1,200.00 and Jan Tundobo’s case (supra) where the offenders destroyed office items of Kaupena Primary School worth K16,442.80. Your actions caused the church to loose K45,658.80.

38. Secondly, it must be stressed here that you have destroyed coffee trees of a church which is a private run organization. As I alluded to above, this is a church property that you have destroyed. The church depends on the coffee trees for its survival apart from the tithes, offerings and donations from its faithful members to spread the message of salvation and hope to your own people. I expressed similar sentiments in Jan Tundobo’s case (supra) at pp 9-10 in this way:

"In the present case, the aggravating circumstances present are these. First, the offenders have damaged properties of a private and mission run school, namely office items of Kaupena Primary School. From the submissions of Mr Kesno, I get the impression that it is a very big school and depends largely on donations and school fees to run the school’s activities effectively. Thus, the offenders must be told that the properties do not belong to them or their sister and her husband to destroy whenever they wish. They are properties of the school where funds donated by kind and generous people as well as monies raised from school fees were used to purchase them for the school. These items are very important for the running of the school for the benefit of the students."

39. The sentences imposed by the Court in Martin Sahin Terea’s case (supra) was 1 year imprisonment wholly suspended on conditions with restitution, in Betty Kaime’s case (supra), 6 months imprisonment, wholly suspended and placed on good behaviour bond and in Jan Tunbodo’s case (supra), 1 year imprisonment wholly suspended on conditions with restitution. These were all guilty plea cases. Yours is not; it is a not guilty plea case where a trial was conducted and you were found guilty and convicted. In the end, I have decided to impose a sentence of 1 year imprisonment on each of you.

Should I suspend the sentence in part or wholly?

40. But a feature you share in common with the other cases I have referred to above is that, no harm was done to any person during the commission of the offence and after the offence. Cannings J, said in Martin Sahin Terea’s case (supra), that this kind of cases are considered "non violent". Thus, the sentencing trend in such cases suggests that non custodial sentence is appropriate. For this reason and for those other features operating in your favour which I have mentioned above, you have asked for a non custodial sentence.

41. Whilst such cases are considered "non violent", in my view, it does not automatically follow that a non custodial sentence should be imposed in your case. Your case must be determine on its own merits and you bear the onus to establish to the satisfaction of the Court that a non custodial sentence is appropriate in your case. When I consider your requests for a non custodial sentence, I am not persuaded that it is appropriate in the circumstances of your case because of the presence of aggravating features I have outlined above. In addition to that, there is no pre sentence report recommending a non custodial sentence.

42. In Richard Liri -v- The State (2007) SC883, the Supreme Court comprising of Sevua, Kandakasi and Gabi JJ, stated:

"Further we find that, the learned trial Judge continued erroneously when he decided to suspend 3 years of the 8 years sentence he decided to impose against you. The learned trial Judge did not provide any reason for that decision. The law on suspension of either a part or the whole of any sentence is settled. Section 19(1)(d) of the Criminal Code confers that power, which can only be exercised on some proper basis.21 In Acting Public Prosecutor v. Don Hale,22 this Court elaborated on that, in this way:

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

Subsequently, the Supreme Court endorsed these views in its judgment in Edmund Gima v. The State & Siune Arnold v. The State.23 That decision also emphasized the point that, there can be no suspension of sentence without imposing any condition. After all, a suspension of either the whole or part of any sentence is not an exercise of discretion in leniency but is a form of punishment.24 As such, conditions must be imposed to demonstrate that, it is an alternative to punishment within the prison system in appropriate cases.25

In your case, there is no record of the learned trial Judge calling for and having before him a pre-sentence report supportive of his decision to suspend the 3 years. Likewise, there is no record of what factors His Honour took into account before arriving at his decision to suspend the three years. Further, if His Honour was entitled on some authority (which he has failed to disclose), to suspend, he did not impose any conditions for the suspension."

43. The Supreme Court in The Acting Public Prosecutor -v- Don Hale (1998) SC564 made these observations:

"The judge having set a sentence of imprisonment then proceeded to suspend the term. Whilst we agree that a judge has a discretion in sentencing convicted persons such a discretion must be exercised according to normal principles. We agree that there are many circumstances which should be applied in the consideration of an appropriate punishment for a particular offender and a judge should refer to these circumstances. There are first of all a number of circumstances of aggravations such as the amount of violence used in a robbery, and the amount of damage done and property taken and whether victims were further injured apart from the fear of the threats. Then there are matters that may be considered in mitigation of the punishment. Of course the first factor in mitigation is whether there have been any admissions of guilt however in this case before us to-day the appellant pleaded not guilty so the State and the Court was put to the time and expense of a trial with the calling of witnesses. So any mitigation for admissions and remorse have limited application.......

[F] or ......a..... suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here the relevance of the Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternate punishment.

However in this case before us now the trial judge had no pre-sentence report nor any report from the community and sought no help from the community in the supervision of this suspended sentence. This is a clear error if he was to suspend a sentence for this kind of aggravated robbery."

44. In my own judgment of The State -v- Jack Magal: CR No 224 of 2006 (Unnumbered & Unreported Judgment of 9th December 2008), a case of attempted murder, I expressed similar sentiments and said that it is important to have a pre sentence report to guide the Court to make its decision when considering a request to suspend a sentence at pp 14-15 as follows:

"As I said above, I consider that long imprisonment sentence in hard labour appropriate but I am not going to suspend the sentence either in part or wholly because there is no pre sentence report placed before me recommending a non custodial sentence. Such a report would have the views of the people in the community where he lives and also the victim as to whether he should be given a chance to live outside the prison walls whilst serving his sentence. It is incumbent on the counsel for the prisoner to have one made available to the Court to guide the Court to reach a justifiable decision. As there is none, I would be doing a de service to the victim and the community at large to let the prisoner out on a suspended sentence without proper justification. Thus, he must serve out the sentence in full."

45. I have referred to at least two Supreme Court judgments and a National Court judgment to emphasize the importance of a pre sentence report when a call is made to the Court to impose a non custodial sentence. In your case, as I said above, there is neither a pre sentence report nor a means assessment report for each of you placed before the Court. You through your lawyer submitted that there are two reasons for not providing these reports. First, there is insufficient time to obtain them from the probation officer as the Court circuit to Minj is to end on 20th November 2009.

46. Secondly, it is your wish that a decision be made without delay to complete the case. In my view, the need to obtain these reports is a matter entirely within your power and discretion. If there is insufficient time, it is a matter for you to make out a case for an adjournment to obtain these reports. You did not ask; you assumed the Court would not grant you an adjournment. This is an erroneousness and fatal assumption. In my view, you cannot use that to explain your failure to present these reports which in my view are very important to guide the Court to determine your requests for a non custodial sentence. I find this reason unsatisfactory and reject it.

47. In any case, you said that you want a quick decision because the case has dragged on for a long time. In my view, you cannot now turn around and grieve upon your failure to provide these reports. You have chosen to proceed without them and that will be the case. Thus, there is nothing to guide the Court to properly consider the question of whether or not the sentence should be suspended. This means, first, I do not know the wishes of the people affected by your actions, especially the Banz Catholic Church Pastoral Advisory Board, parish priest, nuns, and members of the congregation to not only make an informed decision but also a justifiable one.

48. There is no individual report for each of you to show that each of you is a suitable candidate for a non custodial sentence with a condition for restitution to be imposed on you. In this respect, I note your lawyer suggested each of you pay K1,000.00 as compensation to the Banz Catholic Church within one month. But how do I know you will be able to meet that obligation and if it will be a genuine expression of your remorse?

49. It would seem, your proposal to make restitution comes belatedly, in yet another attempt to "water down" the gravity of the offence you have committed. One would have thought that, when there was opportunity to make amends and restitution at the beginning of the dispute, you would have taken it. You did not. In my view, it is now too late to say "sorry" in words and deeds. Secondly, there is nothing to assure me that you will not re-offend or be rehabilitated if given a non custodial sentence. I do not know if your gesture is one of acceptance of responsibility or one of avoiding the wrath of the Court.

50. I distinguish your case from Jan Tundobo’s case (supra) where there was a pre sentence report and also a means assessment report which strongly recommended non custodial sentence. The means assessment report stated that the offenders had the financial capacity to make restitution at 20% of the total loss. They had domesticated animals like pigs to sell to raise money to pay for the costs of the damage. Their relatives were also willing to assist them pay for the costs of the damage.

51. The reports also stated that the Headmaster of Kaupena Primary School and the Councilor of the village, Mek Pure agreed that the offenders make restitution. The views of the Headmaster and the Village Councilor were also endorsed by the Chairman of the PNG Bible Church, Reverend Mondia, who is responsible overall administrative operations of the Church and the school. I observed in that case that, the views of the Headmaster, village councilor and Reverend Mondia not only represented the views of the Kaupena Primary School, the teachers, support staff and students but also the village community.

52. The reports also stated that the offenders have expressed remorse and on behalf of the school, the Headmaster had accepted their apology. It showed to me that parties had reconciled their differences and it was a favourable indication to the Court that a suspended sentence was appropriate. For those reasons, I wholly suspended the sentence of 6 months imprisonment. In your case today, there is nothing placed before me to confidently and with justifiable reasons suspend the sentence. Accordingly, I shall not suspend either wholly or partly the 1 year imprisonment sentence.

53. In the end, Steven Molu Minji, James Kauboi, Simon Koso Kerenga, John Minji and Didi Gelwak Sakol, you are each sentenced to 1 year imprisonment in hard labour less the pre sentence period of 3 days. As for you Didi Gelwak Sakol, having spent 1 year, 9 months and 9 days in pretrial custody, you shall be discharged at the rising of the Court. Bail monies for you Steven Molu Minji, James Kauboi, Simon Koso Kerenga and John Minji shall be refunded forthwith.

54. There will be warrants of commitment issued in those terms shortly.

Sentence and orders accordingly.

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Acting Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Prisoners