State v Telape [2009] PGNC 181; N3815 (9 December 2009)

N3815

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1099 of 2009

THE STATE

V

JOHN TELAPE

Porgera: Ellis J
2009: 8, 9 December

JUDGMENT ON SENTENCE

CRIMINAL LAW – sentence – wilfully and unlawfully destroy or damage property – offender destroyed two power pylons – disruption to Porgera gold mine and township - cost of rectification K394,842 – sentence based not only on conduct but also on consequences of conduct – need for deterrence – national interest – maximum sentence imposed – partial suspension due to mitigating factors – guilty plea – first offender - offender unlikely to be identified but for his admissions - Criminal Code, section 444

Cases cited:

State v Betty Kaime, CR 1793 of 2002, Minj, Makail AJ, (13 November 2008)
State v Jan Tundobo & ors, CR 822 of 2008, Mendi, Makail AJ (10 December 2008)
State v Steven Molu Minji & ors, CR 864 of 2008, Minj, Makail AJ (16 November 2008)

Counsel:

Mr J Waine, for the State
Mr P Kapi, for the Offender

9 December, 2009

1. ELLIS, J: This offender pleaded guilty to a charge that on 3 July 2009 he wilfully and unlawfully destroyed two steel power pylons the property of Barrick (Niugini) Pty Ltd which is the Manager of the Porgera Joint Venture. The charge was based on section 444 of the Criminal Code. Since those power pylons related to a mine, namely the Porgera gold mine, section 444(9)(i) operates to increase the maximum penalty for this offence from imprisonment for 2 years to imprisonment for 7 years.

2. For the purposes of sentencing, the brief was tendered and it became Exhibit A. The contents of that brief are as follows:

1. Information (ie charge)

2. Evidence in brief

3. Affidavit of Allan Waller

4. Statement of Moses Talibe

5. Statement of Pakume Hungape (handwritten and typed)

6. Statement of Aliape Belari (handwritten and typed)

7. Statement of Ayango Wagili (handwritten and typed)

8. Statement of Lumbria Yongahakali (handwritten and typed)

9. Affidavit of Gene Colville

10. Affidavit of John Bosco

11. Statement of Eric Mart

12-16. Five photographs

17. Statement of the offender

18. Record of interview

19. Antecedent report

3. From those documents, the State’s case may be summarised as follows. In order to provide electricity to the Porgera gold mine, and the surrounding community, it is necessary to run power lines over land. That requires the construction of pylons to hold those power lines above ground. Those pylons are held in position by wires called stay wires and cutting those wires is likely to result in the power pylons falling over as happened in this case. Where those pylons and stay wires are installed, access and occupation fees are paid to compensate local landowners for that use of their land. It is then for those local landowners to distribute those monies to the proper people.

4. Two of those steel power pylons, numbered 36.3 and 37.1, are situated near Mount Bee and near the Paijaka Village. On 3 July 2009 those two pylons were destroyed by this offender. At the risk of stating the obvious, the destruction of any one of those pylons will prevent electrical power being provided to the Porgera region, notably to the Porgera gold mine.

5. On 14 July 2009 reserve police officers and investigators travelled to Paijaka Village to conduct inquiries. The offender came forward and revealed that he “chopped down” those pylons as he was upset that he and his family had not received compensation payments for a number of years. It transpired that this offender and his family members had had their names removed from the list of landowners entitled to what might be called “power lines compensation”. As there is no suggestion that the relevant payments were not made, it must be noted that the problem lay not with the Manager of the Porgera Joint Venture but with the distribution mechanism. Indeed, a statement made by the offender’s mother reveals that the source of the problem was a transfer of land from the offender’s uncle to his aunt. Unfortunately, approaches to the Community Affairs Officer did not resolve the problem. Accordingly, this case serves to show what can happen when the Community Affairs Officers do not act quickly, accurately and fairly.

6. There is another aspect of the offender’s conduct which should be mentioned. The statement of Lumbiria Yongahakali suggests that the offender had no interest in the power pylon numbered 37.1 which means that his destruction of that tower reflected adversely on Lumbiria Yongahakali and his clan. Regardless of whether the offender had any legitimate interest in that power pylon, it is important to note that his conduct impacts adversely on the reputation of the people on whose land that power pylon was built.

7. It took only two days for negotiations to achieve the outcome which the offender sought, namely to have his name and the names of his family members restored to the list so that they could be included in future compensation payments. The offender appears to have been prepared to go to gaol in order to achieve his goal. Importantly, it was not necessary for the offender to “chop down” the power lines because there was a sensible mechanism which could have corrected the omission of his name and the name of his family members, within a few days, without the need to damage any power pylons. Hence, the offender’s objectives could have been achieved without him having to spend even one day in gaol.

8. The documents provided to the court reveal that the cost of restoring the power pylons is, when correctly added, K394,842. While the documents provided to the court did not reveal the cost of the consequences of the offender’s conduct, there can be no doubt that the cost of the damage his actions caused ran into millions of kina.

9. It is important to consider what happened after this offender cut the stay lines and base stand bolt with a hacksaw. On 3 July 2009, as soon as the power pylons were destroyed, the Porgera Mine Site was shut down. A helicopter had to be used to locate the cause of the problem. It was discovered that the power pylon numbered 36.3 fell to the ground when its stay wires were cut while the power pylon numbered 37.1 fell to one side but not to the ground. Power was cut to the mine for 7 days and it was necessary to use diesel powered generators during that time.

10. I note the good advice given to the offender by Moses Talibe, an elder in his village who suggested to the offender that he surrender after he admitted it was him who destroyed these power pylons. That only serves to reinforce the role which village elders can and should play in situations where the law has been broken. Indeed, the advice of village elders is worth listening to before any law is broken.

11. The photos included in the documents which became Exhibit A show not only the damage to the two power pylons but also the difficult terrain in which they are located.

12. When interviewed in relation to this matter, the offender admitted that it took him four months to build a tower made from bush materials alongside the power pylon numbered 37.1 and one month to build a similar tower alongside the power pylon numbered 36.3.

13. When provided with an opportunity to address the court after being found guilty of this offence, the offender said that compensation was paid in 1998 and that he sought to have the subsequent non-payment of compensation rectified. However, in March 2009 when the situation had not been remedied, he got annoyed and took steps which led to him destroying two power pylons. He concluded by saying: “I did this to attract the attention of the people responsible for paying compensation”.

14. On the basis of what appears in the Antecedent Report, the offender has no criminal history.

15. On behalf of the offender, Mr Kapi referred the court to three earlier decisions of the National Court, considered below. He admitted that the offence was serious by reference to the repair cost but submitted there were mitigating factors, namely the plea of guilty, co-operation with the police and the circumstances which lay behind the offender’s conduct. Mr Kapi submitted the appropriate range for sentencing purposes was imprisonment for 2 to 3 years less time which the offender has already spent in custody. The court was also reminded by Mr Kapi that the offender voluntarily surrendered in circumstances where, had he not surrendered, he might not have been detected. It is convenient to here note that as the offender has been in custody since 9 July 2009, he has spent 5 months in custody.

16. There appear to be only a small number of National Court decisions which have considered what sentence should be imposed for conduct caught by section 444.

17. State v Betty Kaime, CR 1793 of 2002, Minj, Makail AJ, (13 November 2008) was a case caught by section 444(1) which meant the maximum penalty was imprisonment for two years. It involved K1,200 worth of damage to a police vehicle for which there had been full restitution prior to sentence. Having regard to the circumstances of the offence and the circumstances of the offender, a sentence of imprisonment for 6 months, wholly suspended, is understandable. However, the circumstances of that case pale into insignificance when compared with this case.

18. State v Jan Tundobo & ors, CR 822 of 2008, Mendi, Makail AJ (10 December 2008) was also a case where the maximum penalty which could be imposed was imprisonment for two years. There was community and school support for restitution and a sentence of one years’ imprisonment was suspended on conditions included community service. The facts of that case were in a different league to the present case.

19. Another case in which the maximum sentence was imprisonment for 2 years was State v Steven Molu Minji & ors, CR 290 of 2008, Minj, Makail AJ (16 November 2008) where the offender was found guilty of chopping down a number of coffee trees worth K45,658. The judgment provided to me related to the conviction, not the sentence.

20. On behalf of the State, it was submitted that the consequential damage was an aggravating factor beyond the cost of fixing the damage caused by the offender. It was also submitted that there is a need for a message to be sent as this is one of the first if not the first case of this kind to come before the court. For that reason, it was said that the appropriate range for sentencing purposes was imprisonment for 3 to 5 years.

21. I note that if this was a case in which an amount of more than K150,000 had been misappropriated then the Supreme Court decision in Wellington Belawa v State [1988-89] PNGLR 4996, would suggest a starting point of more than 5 years’ imprisonment and it has been suggested that the guidelines set out on that case are in need of upward revision. It is difficult to see how the starting point for deliberate conduct which costs almost K400,000 to fix should be less than imprisonment for less than 5 years.

22. There is an important point that needs to be made in relation to the sentencing process. It is that the sentence which is imposed is not only determined by the conduct of the offender but also by the consequences of that conduct. This case is a very good illustration of that point because the conduct could be seen as little more than cutting a bolt and some wires with a hacksaw. However, the consequences of that conduct were enormous in terms of the number of people affected, the financial loss which resulted and the damage to the national reputation.

23. The aggravating factors in this case are the consequences of the conduct and the impact of this conduct not only at a local level but at a national level.

24. The mitigating factors are the early admissions and plea of guilty. I do not consider the fact that this offender has no prior convictions to be a mitigating factor as it seems to me that the better view is that the presence of prior convictions is an aggravating factor. I do, however, regard the fact that the offender admitted to something which may not have been able to be proved against him as being a mitigating factor.

25. In a case such as this, it is difficult to do two things at once: send a message through a deterrent sentence, which suggests a need for a longer term of imprisonment, while also allowing for the mitigating factors in this case, which support a shorter term of imprisonment. Normally, mitigating factors would result in a lower head sentence. However, in this case that could give the false impression that only short sentences will be imposed for this kind of offence. What I intend to do in the rather unusual circumstances of this case, is to allow the mitigating factors to operate by way of partial suspension of the head sentence but to impose a head sentence which reflects the gravity of this offence.

26. It is commonly said that the maximum sentence should be reserved for the worst kind of case. It seems clear to me that this case should be regarded as being the worst kind of case for this offence. For that reason I have decided to impose the maximum sentence of imprisonment for seven years, to deduct 5 months to allow for the time which this offender has already spent in custody and to suspend 2 years 4 months in view of the mitigating factors which will leave a term of imprisonment of 4 years and 3 months to be served.

Remarks to the offender on sentence

27. You are reported to have said you are happy to spend time in gaol because you have fixed the problem relating to the payment of compensation. There are two things which must be said in response to that. First, you would not need to spend any time in gaol if you had gone about correcting this problem in a lawful manner. Secondly, when you “chopped down” two power pylons you punished the wrong people: it was not the people who run the Porgera mine who were at fault because they had paid the proper amount of compensation.

28. Your conduct goes beyond the fact that it cost more than K400,000 to fix because the estimated repair cost, without any of the cost of investigation such as sending a helicopter to locate the problem, comes to K394,842. The financial consequences of your conduct ran into millions of kina. The company which runs the Porgera mine suffered two financial impacts from your conduct: it lost revenue when the mine had to be shut down and it incurred additional costs when it had to use diesel fuel to power generators because the electricity supply was cut. Every other business in Porgera would have been also affected in some way by your conduct. It was not just that your conduct shut down the Porgera mine, you cut off electricity to this region. The Porgera mine employs more than 4,000 people and they were all affected by your conduct. Adding others in the local community here in Porgera means that many thousands of people suffered because of what you did with your hacksaw. People had to either put up with no electricity or incur the cost of buying and/or running a generator to provide them with electricity until the power line was restored. Your conduct did not take a few days to fix: it took months to fix.

29. Your conduct did not just send a message to the people of Porgera that their electricity supply was fragile because it only took an offender like you to chop down even one power pylon to disrupt it. Your conduct sent a message to the entire world that those who invest in Papua New Guinea, who spend many millions in their field of business, who pay taxes to the government, who provide many much-need jobs and who help to develop the local economy can have their investment disrupted by local landowners such as you who deliberately set out on a plan which punishes a lot of business and a lot of people, none of whom were to blame for your problem.

30. What you did on 3 July this year was more than just cutting a bolt and some wires with a hacksaw: you cut the electricity supply to thousands of people, caused millions of kina to be lost and damaged the reputation of this country.

31. Having regard to not only the cost caused by your conduct but also to the consequences of your conduct, I sentence you to the maximum sentence for this offence, namely imprisonment for seven years.

32. I deduct 5 months from that sentence to allow for the time which you have already spent in custody for this offence, leaving a term of 6 years and 7 months. By reason of your early admission of guilt, reflected in your plea of guilty in this court, and the fact that you may not have been apprehended but for your admission of guilt, I suspend 2 years and 4 months of that remaining sentence. That leaves a term of 4 years and 3 months to be served from today. That period of 2 years and 4 months will be suspended on the condition that you enter into a recognizance which will require you to be of good behaviour for a period of 2 years after you are released from prison. If you are not of good behaviour during that period, you can expect to serve an additional period of 2 years and 4 months in prison.

33. In a normal case, the court’s judgment would end here and the next case would be commenced. However, in view of the significance of this case it is appropriate to direct some remarks to the general public, not just this accused.

Remarks to the public on sentence

34. Today in Porgera, the National Court is not just sending a message to this offender: it is sending a message to everyone in Papua New Guinea that those who disrupt major projects of national significance can expect to receive the maximum sentence. In other words, if you act so as to cause the maximum damage you can then you can expect to receive the maximum sentence the court can impose.

35. This sentence is not just intended to teach this offender a lesson: it is intended to send out a warning to others. In other words, if others choose to do the kind of thing this offender did then they cannot say they have not been warned.

36. It needs to be understood that Papua New Guinea is a country which is governed by laws which are made by their elected representatives and enforced by the courts: it should not be allowed to become a country which is governed by the sharpest bush knife or, in this case, a hacksaw. There is a proper way for problems to be solved and that proper way does not involve either violence or wilfully causing unlawful damage.

37. Conduct of this kind can and should be seen as unpatriotic because it damages the reputation of Papua New Guinea overseas. Every right-thinking citizen of Papua New Guinea should disapprove of this kind of conduct and discourage anyone from doing anything like this.

38. It should also be borne in mind that this offender has not been out on bail since his arrest, he has been kept in prison until his case could be heard by the court. Also, it should not be forgotten that this offender has been sentenced just over five months since he “chopped down” two power pylons. Cases such as this need to be treated swiftly and severely so that other people do not do what this offender did.

39. If this kind of conduct is repeated then it would not be surprising if the National Parliament changed the law to provide increased penalties for those who disrupt major projects of national significance.

Sentenced accordingly.
__________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender