State v Mabo [2009] PGNC 313; N3884 (18 June 2009)

N3884

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1158 of 2008

THE STATE

V

DAVID MABO

Kimbe: Kandakasi, J.
2009: 3rd & 18th June

CRIMINAL LAW – Sentence – Demand for Compensation With Intent to Extort – In the company of others – Armed with threats of violence – Victim meeting demand to avoid threatened harm or injury – Guilty plea – De facto provocation - Prior conviction – Willing and able to repay compensation received - Prevalence of offence – Deterrent sentence called for – Sentence of 4 years part suspended on conditions imposed – Section 390 A (a) (b) (i) and (ii) of Criminal Code.

Cases Cited:

The State v Titus Kep, Peter Ben, Kowi Tum, Paul Teke and Philip Womi (2004) N2616

Counsel:

F. Popeu, for the State
D. Akeya, for the Accused

18th June, 2009

1. KANDAKASI J: You pleaded guilty to a charge of demanding compensation with intent to extort contrary to s. 390A (a) (b) (i) and (ii) of the Criminal Code. Following your guilty plea, you through your learned counsel, Mr. Kari, asked for a part suspended sentence of 3 years. The State through its learned counsel, Mr. Popeu, concurred with your lawyer's submission. This does not mean however, that the Court must impose the sentence you are asking for. Instead, there is a duty on the Court to determine an appropriate sentence for you.

Relevant Issue

2. From the arguments of the parties, clearly therefore the issue for the Court to determine is, what is an appropriate sentence in your case? Whatever sentence the Court eventually decides to impose, must reflect and befit the circumstances in which you committed the offence, including how you committed the offence. This can be ascertained from the relevant facts.

Relevant Facts

3. The relevant facts start with you and two of your brother in-laws having a confrontation with a Morobean family, sometime before 25th March 2004. That family lived at Section 2 at Sarakolok Oil Palm Settlement, here in Kimbe. The confrontation resulted in you receiving a cut to one side of your ear. During the night of 25th March 2004, you went to Kero Wando's (a Morobean) block and demanded compensation from him. You were armed with bush and grass knives and sticks and stones. You went directly to Kero Wando and demanded compensation in the sum of K1,180.00 in cash for an injury to your ear. You issued threats of violence unless Kero Wando met your compensation demand. Out of fear, Mr. Wando met your demand.

4. In your allocutus, you said sorry for what you have done and pleaded for mercy and good behaviour bond. In so pleading, you pointed out that, you are married with 5 children, who you need to provide for in terms of their subsistence and education and other needs.

Submissions

5. In his submissions on your behalf, your learned counsel Mr. Kari added that, you are aged 28 years old, 23 at the time of committing the offence. He also pointed out that the police arrested you on 25th March 2004. Following that, you spent 2 weeks in the police cells and a further 3 months in the Lakeamata Correction Services. Thereafter you went before the District Court, which struck out the case against you. Police however, had you re-arrested and had you in their cells for 3 weeks and a further 3 months in the custody of the Correction Services. So you spent a total of 7 months and 2 weeks in custody.

6. Your learned counsel urged the Court to take into account the fact that you pleaded guilty to the charge and that you expressed remorse. He also urged the Court to note that, you acted under a form of de factor provocation. Your learned counsel also urged the Court to note that, apart from your demanding compensation, the confrontation and the threats were under the leadership of some of your other relatives. At the same time, your learned counsel acknowledged that, you have a prior conviction for being in possession of a firearm, which is a dangerous and offensive weapon. Nevertheless, you learned counsel urged the Court to note that, that offence was committed 13 years ago.

7. As earlier noted, your learned counsel acknowledges that, the offence you committed carries a maximum penalty of 7 years. Your learned counsel then submitted that, a sentence of 3 years is appropriate having regard to the particular circumstances of your case. The learned counsel for the State agreed with the submissions of your learned counsel.

Consideration

8. Neither learned counsel drew the Court's attention to any case law on point for the Court's assistance. My own research led me to the decision of my learned brother Honourable Justice Sevua in the case of The State v Titus Kep, Peter Ben, Kowi Tum, Paul Teke and Philip Womi (2004) N2616. That was a case out of Kimbe. The prisoners in that case were men who led a whole group of people from the Southern Highlands and Morobe Provinces to made a substantial demand for compensation in the amount of K596, 937.72 to be paid within 7 days backed by threats of violence. They also unlawfully confiscated several motor vehicles belonging to the New Britain Palm Oil Limited (NBPOL), which were subsequently returned. His Honour noted that, there was almost total mayhem and total anarchy. Even initial police intervention meant nothing to the prisoners and those they were leading.

9. The prisoners pleaded guilty to the charge and were all first time offenders. Despite pleas for a lenient sentence, His Honour was of the view that a custodial sentence was called for. Accordingly, His Honour imposed a sentence of 5 years to serve in hard labour for the ring leader and the rest 4 years each. In imposing that sentence, His Honour correctly noted in my view that, making compensation demands in the way the prisoners made was not only a serious breach of the law but a threat to foreign investment in our country. If such investments got withdrawn, discouraged and or prevented, the country and her people stand to loose far more, all because of the senseless and selfish acts of a few.

10. His Honour noted that, such act and threats of violence is not a civilized and or acceptable way of resolving conflicts. His Honour noted and I agree that, resorting to such conduct results in much trauma, pain and anguish to those against whom such acts are directed.

Sentence in Your Case

11. For the purposes of arriving at an appropriate sentence for you, I note that your case is not as serious as the case I have just cited. That is however only in terms of the amounts of money involved and the amounts of properties and lives then under threat. This does not mean that your case is any less serious because you also acted in a group and confronted a family which is not originally from this Province. The victim and his family came here because of the business generated by the NBPOL. I note there are lot more people from outside this province actively contributing to the operations of the NBPOL and the other companies that exist and operate out of this Province.

12. I note with much concern that, it has become the norm through out most of our country to resort to demands for compensation for just about everything. Such demands are usually accompanied by threats of violence to ensure that the demands are meet. This practice or culture of compensation demand has become much more of a hindrance to development and progress in our country. There has been much debate on the question of whether demands for compensation should be outlawed. This debate has forgotten the fact that we do have Section 390A of the Criminal Code which already outlaws unlawful demands for compensation. There are lawful and well recognized ways and means to resolving conflicts that arise in a civilized society. Only uncivilized people who are intent on assuming superiority over the recognized system chose to take matters into their own hands and put up demands in the way you have. It follows therefore that, those who are caught carrying on this kinds of practice must be severely dealt with until this practice is rendered non existent.

(i) Aggravating Factors

13. For the purposes of determining an appropriate sentence for you, I note firstly in your favour that, you pleaded guilty to the charge. That saved the State time and money that it could have otherwise spent in running a trial against you. At the same time, it saved the Court much time and effort it could have expanded in determining your guilt or innocence.

14. Secondly, I note that, you acted under some provocation in the non-legal sense. You sustained injuries to one of your ear. However that came about from a confrontation that was set in motion by you and your people at the first place.

15. Thirdly, I note that the amount of compensation you claimed is comparatively insignificant to the amount claimed in the Titus Kep & Ors case. Also a lot more people were involved in the commission of the offence involving a lot of properties and lives.

(ii) Mitigating Factors

16. Against the factors in your favour are a number of factors against you. The first is the fact that, you were part of a group of men who were going against one family. It is worse enough when a lone offender turns up and confronts another with threats of violence. But when an offender acts in the company of another, that gives the offender more strength, energy and courage to commit an offence. That is why people who commit an offence in the company of another, get sentences higher than those acting alone.

17. Secondly, following on from the first factor, I note that, your victim did not have the home advantage and you took unfair advantage of that fact. This is clearly a case of abuse and exploitation of people whose place of origin is outside this Province. I find that the victims were in fear of real danger unless they gave into your demand. This is confirmed by the fact that, your victims met your demands. I am of the view that, as was the case in the Titus Kep & Ors case, your victims were subject to much pain and anguish and consequently a lot of trauma when confronted by an angry life threatening mob.

18. Thirdly, you have a prior conviction for being in possession of a dangerous weapon. Although you committed that offence 13 years ago, it is clear that your propensity to be in possession of dangerous weapons and cause fear has not been sufficiently tamed. It seems you have not learned from your earlier offence, and have readily committed this offence.

19. Fourthly, you committed an offence that is becoming prevalent in our country. This is a threat not directed only at a few members of our country, but has serous ramifications for the whole country in terms of investor confidence and creating a society of peace and civilized resolution of conflicts. This calls for a strong deterrent sentence, with a view to deterring other would be offenders.

The Decision

20. Carefully weighing the factors for and against you, I find that the factors against you outweigh those in your favour. Accordingly, I find a sentence close to what was imposed in the Titus Kep & Ors case is appropriate. In this regard, the submissions of your learned counsel with the concurrence of the learned counsel for the State for a sentence of 3 years is persuasive but not quite convincing for the reasons I have given above. I consider instead a sentence of 4 years appropriate. Accordingly, I am imposing that sentence against you. Of that, I order a deduction of the period of 7 months, 2 weeks and 1 day, you have already spend in pre-trial and pre-sentence custody. That will leave you with the balance to serve.

21. I have given serious consideration to the question of suspension of either the whole or part of the remaining part of your sentence. However, having found that this is a case in which the factors in aggravation outweighing those in your mitigation, I have decided against any greater suspension than 1 year of your remaining sentence. This is conditional on you fully restituting the K1,180 you demanded and received from the victims of the offence and making a public apology within two months from to day. Subject to the provision for restitution and suspension, you shall serve the balance of your sentence in hard labour.

22. A failure to meet the condition for restitution and apology will result in no suspension, leaving you to serve the suspended part of the sentence. If you meet the condition to restitute and apologise the balance of your sentence that will be left for you to serve will be 1 year 4 months, 1 week and 6 days. You will serve your sentence in hard labour at the Lakeamata Correction Services. A warrant of commitment in those terms shall issue forthwith.

________________________________________________________
The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Accused