State v Seki [2014] PGNC 208; N5847 (13 December 2014)

N5847

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. No.702 OF 2014

BETWEEN:

THE STATE

AND:

JEREMIAH SEKI and JOHN KAUPA
Prisoners

Mt. Hagen: David, J
2014: 4, 12 & 13 December

CRIMINAL LAW – sentence – wilful and unlawful destruction of property – one count – plea of guilty – Criminal Code, Section 444(1).

Facts

The prisoners pleaded guilty to one count of wilful and unlawful destruction of property. On the afternoon of October 2013, the prisoners Jeremiah Seki and John Kaupa were at the latter's family's premises which is situated in the vicinity of the Kagamuga airport, Mt. Hagen in the Western Highlands Province consuming alcohol with friends and listening to music after completing Grade 10 examinations. As they were drinking, the victim arrived in his vehicle with his wife and children at the premises of the victim's late father which was next to Kaupa's premises. The victim was a pastor, attached to the Royal Papua New Guinea Constabulary as a Chaplain and an uncle to Jeremiah and an in-law to John. Noticing the loud music, that a power cord ran through his father's premises and that an opening was created through the flower fence and through which the extension cord ran, the victim disconnected the extension cord. When he did, one Ezra Loi Seki, a nephew who was drinking with the two prisoners came out from the area and argued with the victim and swore at him. The victim was angry and hit Ezra only with the view to stopping him, but Ezra did not stop. Instead, he and the two prisoners together with others continued to yell verbal abuses at the victim and chased him away. They went into the victim's father's area and smashed all the windows of the victim's vehicle and also destroyed other properties around that premises. Two separate quotations were obtained on the cost of repairs of the victim's vehicle; Boroko Motors quoted K24,590.43 whilst Ela Motors quoted K16,075.96.

Held:

1. A sentence of one year imprisonment in hard labour was imposed for each prisoner.
2. For each prisoner, the period in remand of two months was deducted and the remaining term was suspended on prescribed conditions.

Cases cited:

Public Prosecutor v Tom Ake [1978] PNGLR 469
Goli Golu v The State (1979) PNGLR 653
Public Prosecutor v Thomas Vola (1981) PNGLR 41
Avia Aihi (No.3) v The State (1982) PNGLR 92
Ure Hane v The State (1984) PNGLR 105
Public Prosecutor v William Bruce Tardrew (1986) PNGLR 91
Kuri Willie v The State (1987) PNGLR 298
The State v Frank Kagai (1987) PNGLR 320
John Elipa Kalabus v the State (1988) PNGLR 193
Lawrence Simbe v The State (1994) PNGLR 38
Public Prosecutor v Don Hale (1998) SC564
Aloises Peter Irobo Kovei v The State (2001) SC676
Edmund Gima and Siune Arnold v The State (2003) SC730
The State v Martin Sahin Terea (2005) N2816
Saperus Yalibakut v The State (2006) SC890
Richard Liri v The State (2007) SC883
The State v Steven Molu Minji; The State v Didi Gelwak Sakol (No 2) (2009) N3794
The State v Roger Meckpi (2010) N4079

Counsel:
Emmanuel Thomas, for the State
Paul Moses, for the Prisoner

SENTENCE

13th December, 2014

1. DAVID, J: The prisoners, Jeremiah Seki and John Kaupa pleaded guilty to one count of wilful and unlawful destruction of property contrary to Section 444(1) of the Criminal Code and were convicted accordingly.
   

2. Both prisoners were arraigned with the following short facts. On the 11th of October 2013 at around 4:30 pm, the prisoner Jeremiah and John were at the latter's family's premises which is situated in the vicinity of the Kagamuga airport, Mt. Hagen in the Western Highlands Province (Kaupa's premises). They were consuming alcohol with friends and listening to music after completing Grade 10 examinations. As they were drinking, the victim namely, Steven Seki who was a pastor and attached to the Royal Papua New Guinea Constabulary as a Chaplain arrived with his wife and children at the premises of the victim's late father which was next to Kaupa's premises. When the victim came out of his vehicle, he noticed the loud music and that a power cord ran through his father's premises. The victim also noticed that an opening was created through the flower fence and through which the extension cord ran. The victim disconnected the extension cord and when he did, one Ezra Loi Seki who was drinking with the two prisoners came out from the area and argued with the victim and swore at him. Ezra and Jeremiah were the victim's nephews. When Ezra swore at the victim, he was angry and hit Ezra only with the view to stopping him. Ezra however did not stop. Instead, he and the two prisoners together with others continued to yell verbal abuses at the victim and chased him away. They went into the victim's father's area and smashed all the windows of the victim's vehicle namely, a Toyota Kijang bearing registration number JAB165 and they also destroyed other properties around that premises. Two separate quotations were obtained from Boroko Motors and Ela Motors on the cost of repairs of the victim's vehicle. Boroko Motors quoted K24,590.43 whilst Ela Motors quoted K16,075.96. Both prisoners participated in smashing all the windows of the victim's vehicle without any lawful justification.

3. The two Records of Interview produced concerning interviews conducted by Senior Constable James K. Opa at the Office of the Criminal Investigation Division at Mt. Hagen Police Station on the 18th of February 2014 with Jeremiah and on the 24th of February 2014 with John and both attended by First Constable Rita Upaiga as corroborator contain admissions.

4. Both prisoners have no prior convictions.

5. On his allocutus, Jeremiah said sorry to the victim and to the Court. He pleaded for mercy and requested that he be placed on probation so that; he could return to school and complete his Grade 12 education; and organise the purchase of the glasses of his uncle's vehicle. He undertook to be a good and law-abiding citizen after his release back into the community.

6 On his allocutus, John said sorry to the Court and the victim. He also begged the Court for mercy and requested that he be placed on probation so that; he could return to school and complete his Grade 12 education; and to reconcile with the victim who was his in-law. He also undertook to be a good and law-abiding citizen after his release back into the community.

7. After administering the allocutus, the defence counsel sought pre-sentence reports for both prisoners. I requested the Probation Service, Mt. Hagen to provide the reports pursuant to the Probation Act and have them filed or presented to the Court by 9:30 am on the 12th of December 2014. Both counsel reserved their addresses until then. Both reports were filed within the time requested and I commend Ms. Theresa Puk for preparing them.

8. Since both prisoners pleaded guilty, they will each be given the benefit of the doubt on mitigating matters that are raised in the depositions, their allocutuses or in defence submissions that the prosecution does not contest: Saperus Yalibakut v The State (2006) SC890.

9. Jeremiah is of mixed parentage. His father is from Baluwe village, Erave District in the Southern Highlands Province and his mother is from Mt. Hagen in the Western Highlands Province. He now resides at Kagamuga, Mt. Hagen. His father deserted his wife when he was an infant and he has been raised by his maternal grandparents. His father died in 2011 and is survived by his mother. He was born on the 3rd of July 1995 in Mt. Hagen and raised here since childhood. He is aged about 19 years and 5 months now so at the time of the commissioning of the offence, he would have been aged about 18 years and 3 months. He is one of 4 siblings in his family comprising 3 brothers and a sister. He is the second born. The eldest sibling who is a brother was a first year student at the University of Technology this year and the rest of them including himself were attending Secondary Schools. He was doing Grade 11 at the Hagen Park Secondary School in Mt. Hagen this year when on the 17th of October 2014 whilst into Term 4 of the school-year, he was arrested and incarcerated for absconding bail on a bench warrant issued by this Court on the 1st of September 2014. He is a baptized member of the Lutheran Church. He is generally physically healthy. He was apprehended and detained for this offence on or about the 12th of December 2013 and was admitted to police bail of K300.00 on the 16th of December 2013. He was committed to stand trial in the National Court on the 23rd of May 2014. He has been in remand for a total period of about 2 months.

10. John is originally from Dinga village, Sinasina District in the Simbu Province. He now resides at Kagamuga, Mt. Hagen. Both his parents are alive. His father is an engineer and is currently employed by Lihir Mining Limited and his mother is a homemaker. He was born on the 25th of October 1994 in Mt. Hagen and raised here since childhood. He is aged over 20 years and 1 month now so at the time of the commissioning of the offence, he would have been aged over 18 years and 11 months. He is one of 5 siblings in his family comprising 3 sisters and 2 brothers including himself. He is the third born. Two of his siblings are married and have children whilst the rest of them including himself are currently attending Secondary Schools. He was doing Grade 11 at the Muaina Secondary School in the Simbu Province this year when on the 17th of October 2014 whilst into Term 4 of the school-year, he was arrested and incarcerated for absconding bail on a bench warrant issued by this Court on the 1st of September 2014. He is a baptized member of the Christian Outreach Centre. He is generally physically healthy. He was apprehended and detained for this offence on or about the 12th of December 2013 and was admitted to police bail of K300.00 on the 16th of December 2013. He was committed to stand trial in the National Court on the 23rd of May 2014. He has been in remand for a total period of about 2 months.

11. The pre-sentence reports filed for each prisoner which I have considered are favourable to each one of them. They recommend that both prisoners be given non-custodial sentences on such terms and conditions as the Court deems appropriate including an order for compensation under the supervision of the Probation Service. The reports, amongst other things, report that; both prisoners were Grade 11 students and did not have any financial means to meet an order for compensation without the assistance of relatives; K2,500.00 was paid to the victim as compensation several days after the incident which the victim accepted and both prisoners have reconciled with the victim; and that both prisoners were willing to jointly pay to the victim an additional amount not exceeding K2,500.00 with the support of relatives if the Court were minded to make an order for compensation.

12 In mitigation, the defence counsel submitted that:

1. both prisoners pleaded guilty which saved the State the time and money for it to establish their guilt and also saved the Court the time and money it would have incurred in conducting a trial to determine their guilt or otherwise;
   
2. both prisoners were first offenders;
   

3. both prisoners cooperated with the police by making early admissions in their respective Records of Interview;

4. both prisoners expressed genuine remorse;

5. compensation of K2,500.00 was paid to the victim by or on behalf of both prisoners;

6. there was de facto provocation;

7. both prisoners were youthful offenders.

13. It was submitted by the defence counsel, Mr. Moses that the circumstances of the present case warranted a head sentence for each prisoner of between 6 to 12 months and the sentences be suspended in their entirety subject to prescribed conditions.

14. In aggravation, Mr. Thomas of counsel for the prosecution submitted that:

1. the prisoners were part of a group of youths who attacked the victim;
2. the victim was attacked in the presence of his wife and children causing them to be traumatised;
3. the prisoners and the others were armed with implements of sorts and used abusive language;
4. substantial damage between K16,000.00 to K24,000.00 was caused to the victim's vehicle;
5. they assaulted a relative which was disrespectful;
6. the victim was a Police Chaplain;
7. both prisoners absconded bail; and
8. the victim was inconvenienced without the use of his vehicle.
   

15. The prosecution did not seriously contest the defence submission on sentence.

16. What is the appropriate sentence for the prisoner?

17. The prescribed penalty for the offence under Section 444(1) of the Code is imprisonment for a term not exceeding 2 years. None of the circumstances of aggravation under Section 444(2) to (10) of the Code were indentified and pleaded in both the indictment and the brief facts to warrant a consideration of any sentence beyond 2 years.

18. The participation of both prisoners in the commissioning of the offence as a matter of fact and degree are similar therefore the factors of mitigation and aggravation affecting each of them will be addressed jointly.

19. The factors which mitigate the offence are:

1. both prisoners pleaded guilty which saved the State the time and money for it to establish their guilt and also saved the Court the time and money it would have incurred in conducting a trial to determine their guilt or otherwise;
2. both prisoners cooperated with the police by making early admissions in their respective Records of Interview;
3. both prisoners were first offenders;
4. both prisoners expressed genuine remorse having pleaded guilty at their trial consistent with their early admissions (Public Prosecutor v Tom Ake [1978] PNGLR 469 and John Elipa Kalabus v the State [1988] PNGLR 193) and demonstrated by payment of compensation of K2,500.00 to the victim several days after the incident;
5. Compensation of K2,500.00 was paid to the victim;
6. there was de facto provocation;
7. both prisoners had prior good records;
8. both prisoners were doing their last term of Grade 11 studies this year when they were arrested and incarcerated for absconding bail and a jail term will jeopardise their education;
9. the victim was a relative.
   

20. I note that in Kuri Willie v The State (1987) PNGLR 298 Hinchliffe, J discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first offenders and imprisonment ought to be used as the last resort. However, in the present case, both prisoners were over the age of 18 years when they committed the offence so they cannot be regarded as youthful offenders.

21. The factors which aggravate the offence are:

1. the victim suffered substantial damage to his motor vehicle;
2. both prisoners participated in a gang attack involving intoxicated persons;
3. stones, iron bars and a piece of wood were used in the attack to cause destruction and abusive language was used;
4. the attack was perpetrated in front of the victim's wife and children and they were traumatised by it;
5. the victim was a Police Officer or regarded as one being a Chaplain of the Royal Papua New Guinea Constabulary;
6. the victim was pastor;
7. both prisoners are reasonably educated and sophisticated persons to be able to tell what was right from wrong;
8. both prisoners absconded bail and were on the bench warrant list for over a month before being apprehended and detained on the 17th of October 2014; and
9. the offence was prevalent.
   

22. I have considered the following cases.

23. In The State v Martin Sahin Terea (2005) N2816, the offender was employed with the Bougainville Provincial Administration in Buka as a graphic artist attached to the Division of Information, Culture and Tourism. On the morning of the 14th of May 2001, he went to his office, obviously angry with his superiors about something armed with a screwdriver. He deliberately used the screwdriver to pierce holes in a photocopier, a printer and the air-conditioning unit and in the main door and the reception counter. On a plea of guilty to the offence under consideration, Cannings, J imposed a head sentence of one year imprisonment in hard labour, all of which was suspended subject to compliance with certain prescribed conditions including payment of compensation of K2,000.00 within 6 months of sentence.

24. In The State v Steven Molu Minji; The State v Didi Gelwak Sakol (No 2) (2009) N3794, five offenders were convicted of the offence under consideration following a trial. On the morning of the 31st of October 2007, the offenders in the company of 40 to 50 others and armed with bush knives and axes entered a coffee plantation belonging to the Banz Catholic Church in Banz town and chopped down a total of 2,230 coffee trees valued at K45,658.80. Makail, J imposed custodial sentences of 1 year imprisonment in hard labour on all offenders.

25. In The State v Roger Meckpi (2010) N4079, the offender went to the office of the National Judicial Staff Services (NJSS) at Gordons on the 28th of September 2008, grabbed an iron bar and smashed all the glasses of a private vehicle, a Toyota Camry parked at the car park belonging to a Robert Tukondo who was an Internal Auditor with the NJSS. The damage caused was assessed at K10,924.34. The reason for the offender damaging the vehicle was that he was frustrated over the delay in dealing with a case involving himself and other parties which was then pending in the Supreme Court. Kawi, J imposed a sentence of 10 months imprisonment in hard labour all of which was suspended subject to compliance with certain prescribed conditions including payment of restitution of a total amount of K12,262.83 within 5 months of sentence.

26. It is a settled principle of law on sentencing in our criminal jurisdiction that the maximum penalty for the offence is usually reserved for the worst case of a particular offence under consideration: Goli Golu v The State (1979) PNGLR 653, Avia Aihi (No.3) v The State (1982) PNGLR 92, Ure Hane v The State (1984) PNGLR 105 and Aloises Peter Irobo Kovei v The State (2001) SC676. I do not consider that this case falls within the worst category for this particular offence.

27. In the exercise of my sentencing discretion, I am also guided by the trite legal principle that each case must be sentenced on its own set of facts and circumstances: Lawrence Simbe v The State (1994) PNGLR 38. Comparatively, I think this case is far more serious than Martin Sahin Terea and Roger Meckpi, but less serious than Steven Molu Minji.

28. Thus, taking into account all the peculiar facts and circumstances of the present case, I consider that a sentence of 1 year imprisonment in hard labour for each prisoner will be appropriate.

29. The time each prisoner has spent in custody which is a total period of 2 months shall be deducted in accordance with Section 3(2) of the Criminal Justice (Sentences) Act 1986.

30. The resultant length of sentence to be served by each prisoner will be 10 months (the remaining term).

31. Incarceration will be at the Baisu Correctional Institution.

32. Should I suspend all or any part of the remaining term? Section 19(1)(d) of the Code confers power on a court a discretion to suspend either a part or the whole of a sentence. This discretion must be exercised on some proper basis: Public Prosecutor v Don Hale (1998) SC564, Edmund Gima and Siune Arnold v The State (2003) SC730, Richard Liri v The State (2007) SC883. A pre-sentence report or community report from the community to which the offender belongs is required for the court's consideration: Don Hale, Edmund Gima and Siune Arnold and Richard Liri. There can be no suspension without the imposition of conditions: Edmund Gima and Siune Arnold. The pre-sentence reports of both prisoners recommend non-custodial sentences and that is something that favours the exercise of the discretion in the prisoners' favour. I have considered the principles of suspending sentences propounded in Public Prosecutor v Thomas Vola (1981) PNGLR 41, Public Prosecutor v William Bruce Tardrew (1986) PNGLR 91 and The State v Frank Kagai (1987) PNGLR 320 and I propose to suspend all of the remaining term each prisoner will serve subject to conditions which I will set out later as I am of the view that it will promote personal deterrence, reformation or rehabilitation of each prisoner.

33. The following conditions shall apply:

1. Each prisoner shall enter into his own recognizance without any surety and keep the peace and be of good behaviour for the duration of the remaining term.
2. Each prisoner shall not leave the Western Highlands Province for the duration of the remaining term without the leave of the Court.
3. Each prisoner shall not consume alcohol or any intoxicating substance including illicit drugs for the duration of the remaining term.
4. Each prisoner shall pay a fine of K500.00 and this fine shall be paid before each of them is released from prison.
5. Any further period of detention accumulated prior to the release of each prisoner will be deducted from the remaining term each prisoner will serve.

6. If any of the prisoners breaches any one or more of conditions numbers 1 to 3, he shall be brought before the National Court to show cause why he should not be detained in custody and serve the remaining term or the balance of the remaining term as the case may be.

34. Both prisoners are students and have no means to settle any compensation order so I have not made such an order.

35. A warrant shall issue for the execution of the sentence.

Sentenced accordingly.

______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner