N5531
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 651 OF 2013

THE STATE

V

SAILEBO POATE

CR NO. 653 OF 2013

THE STATE

V

HENRY BONOBI

CR NO. 655 OF 2013

THE STATE

V

TANI ROBINSON

Misima: Toliken, AJ.
2014: 07th and 11th March

CRIMINAL LAW – Sentence – Wilful and unlawful damage to property – Destruction of Fish Aggregating Devise (FAD) installed by National Fisheries Authority – Guilty pleas – Mitigating Factors - First time offenders – Simple illiterate villagers – Properties surrendered and returned – Mistaken belief that FAD belonged to illegal fishing vessels – Lack of proper and adequate public awareness before devices were installed - Aggravating factors – Substantial damage – Deprivation of community of economic benefit to community – Negative impact on food security in affected community – Need for respect of public property that are provided for benefit of community – Appropriate sentence – Deterrent and punitive Sentence –Need for parity with other offenders – Sentenced to rising of the Court – Criminal Code Act Ch. 262, s 444(1). 

Cases Cited

Avia Aihi v The State (No.3) [1982] PNGLR 92)
The State v Betty Kaime CR No. 1793 of 2002, (unnumbered and unreported judgment dated 13th November 2008)
Goli Golu v The State [1979] PNGLR 653
The State v Jan Tundobo & Ors CR No. 822 of 2008, (unreported and unnumbered
The State v Jerry Hileya, CR 656 OF 2013 (unreported and unnumbered judgment dated 25th October 2013 delivered at Alotau)
The State v Minji; The State v Sakol (2009) N3794
The State v Ronnie Anoia, CR 654 of 2013 (unreported and unnumbered judgment dated 25th October 2013 delivered at Alotau)
Saperus Yalibakut v The State (2006) SC 890
The State v Telape (2009) N3815 
The State v Terea (2005) N2816, 
The State v Michael Warangu (2007) N3265 
unnumbered judgment dated 10th December 2008)

Counsel

R. Christensen and H. Raolakona, for the State
P. Palek, for the prisoners

JUDGMENT ON SENTENCE

11th March, 2014

1.	TOLIKEN, AJ. Sailebo Paote, Henry Bonobi and Tani Robinson, on 07th of March 2014, you all pleaded guilty to an indictment charging you each and severally with one count of wilful and unlawful damage to property in contravention of Section 444(1) of the Criminal Code Act Ch. 262. (The Code) You were each and severally charged that:

" ... [o]n a date unknown between the 24th December 2012 and 01st January 2013 at Awaibi, in Milne Bay Province, Papua New Guinea, [you] wilfully and unlawfully damaged property namely one Fisheries Aggregating Device, belonging to the National Fisheries Authority."

2.	The State further invoked Section 7 (1)(a) of the Code basically saying that because you acted as group you are principal offenders and are responsible or liable for the actions of each other.

3.	The following facts were put to you on arraignment. During the month of December 2012 the National Fisheries Authority (NFA) were in the Milne Bay Province installing Fisheries Aggregating Devices (FADs) out at sea to be used as feeding grounds for fish. Two such FADs were installed in the waters of Misima, one at Siagara and the other at Awaibi on the 25th of December 2012. 
Sometime between the 25th December 2012 and 01st January 2013 the three of you went to the FAD that was installed at Awaibi. You removed a solar panel and light bulbs from the device and in doing so you wilfully and unlawfully damaged the FAD.

4.	I confirmed you pleas and convicted each of you after perusing the Committal Court depositions.

ISSUES

5.	The sentencing issues for me to determine are:

•	Are your cases the worst of this kind of offence?
•	What would be appropriate sentence for each of you?

ANTECEDENTS

6.	Sailebo Poate you are 30 years old, single and come from Boiam Village here on Misima Island. You are the 3rd born in a family of 6 children. Both your parents are still alive and you are an adherent of the United Church faith. You only have a Grade 6 education and hence a simple villager. This is your first offence.

7.	Henry Bonobi you are 19 years old, single and also come from Boiam Village here on Misima Island. You are the 4th born in a family of four children. Both your parents are also still alive. You have never gone to school and an adherent of the United Church faith. You are also a first time offender and this also your first offence.
 
8.	Tani Robinson you are 24 years old, married with one child and also come from Boiam Villge here on Misima Island. You are the first born in a family of four children. Your parents are still alive. You have been educated up to Grade 4 only hence you would basically be illiterate. You are also a member of the United Church. You are simple villager and are a first time offender also.

ADDRESSES TO THE COURT 

9.	Each of you addressed the Court as did your lawyer and the State.

10.	Sailebo Poate, you apologised to the court, God, the people of Misima and the Awaibi community for what you did. You said you did not know that that the FAD was installed by the State (NFA). You thought that it was just floating around hence you did what you did. Had you known that it was installed by NFA you would not have damaged the device. Because of what you did you said you have not been able to help your people and your family. 

11.	Henry Bonobi, you admitted damaging the FAD but like Sailebo you also said that you did not know that it was installed by NFA. If you had known you would not have damaged it. You apologised to the Court and the State and asked the Court to have mercy on you and release you back to your village so that you may be able to help your family and community.

12.	Tani Robinson you also admitted damaging the FAD but was only because you did not know who had installed it. You said you thought that it was a Taiwanese FAD floating around so you damaged it. You apologised to the God, the Queen, the State and NFA for what you did. You asked the Court to be merciful on you.

13.	 Your lawyer Mr. Palek submitted in your behalf that this was a crime of opportunity and not pre-meditated. As ordinary villagers you had over the years witnessed sightings of numerous fishing devices from illegal fishing vessels in your coastal waters and when you saw the lights from the FAD after it was installed you became curious thinking that it was one of those devices from illegal fishing vessels. You were not aware that the device was installed by NFA as no public awareness was carried out and it appears that the majority of people were not aware of the installation of the FADs in the area. Mr. Palek submitted that all the items that you removed were surrendered to the police and returned to NFA. 

14.	Mr. Palek submitted the following factors in mitigation: you pleaded guilty early to the charge saving time and money for the State; you co-operated with the police and NFA and have each expressed remorse; you are all first time offenders; you did not offer violence to anybody; you are all simple villagers who acted under the mistaken belief that the device belonged to illegal fishing vessels and that yours was an offence of opportunity and not pre-meditated at all.

15.	Counsel conceded though that your offending is aggravated by the fact that your destruction of the FAD (State property) inconvenienced the whole community, that NFA spent K22,000 in installing the device and may have to spend another K22000 install an replacement.

16.	Mr. Palek submitted also that an appropriate sentence for you should be 1 -2 years but since you have spent 1 year and 10 days in pre-trial/sentence custody you should be sentenced to the rising of the Court. Counsel brought to the Court's attention that your co-accused Jerry Hileya was sentenced to 14 months imprisonment by this Court in the Alotau sittings in October last year.

17.	Counsel cited three cases which he said may assist the Court in arriving at an appropriate sentence for you. These are The State v Terea (2005) N2816, The State v Michael Warangu (2007) N3265 and The State v Minji; The State v Sakol (2009) N3794. I will come back to these cases presently.

18.	Ms. Raolakona in behalf of the State conceded that this is not the worst instance of this offence but nonetheless said that an appropriate sentence should be 1 year imprisonment. 

THE OFFENCE

19.	The offence of wilful and unlawful damage to property under Section 444 (1) of the Code is a misdemeanour and carries a maximum penalty of 2 years imprisonment. However, if the offence is committed in the night an offender may be liable 3 years imprisonment. (subs. (2)). The State did not allege in the indictment that you committed the offence in the night which it must do if it had wished to invoke Subsection (2) hence you liable to imprisonment terms of 2 years each only.

20.	It is, however, well established in our jurisdiction (and elsewhere) that the maximum penalty is always reserved for the worst instances of a particular offence. While there is need for parity in sentencing so that cases displaying the same characteristics attract similar (not uniform) sentences, each case must be treated on its own set of facts and circumstances. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92)

SENTENCES IN SIMILAR CASES

21.	Let me just briefly consider a few cases - some of which were cited by your lawyer - to see what sentences this court has imposed over the recent past.

22.	 The State v Betty Kaime CR No. 1793 of 2002, (unnumbered and unreported judgment dated 13th November 2008) ( Makail J.): There the prisoner damaged a police vehicle by smashing its wind screen with a rock when she found her policeman husband in the vehicle with his girl friend. Considering the factors in her favour, His Honour sentenced the prisoner to six months with conditions including restitution to the value of the damage done to the vehicle.

23.	The State v Terea (supra)(Cannings J.): There, the offender, an officer of the Bougainville Administration damaged a photocopier, a printer and an air conditioning unit by piecing holes in them with a screw driver. He was angry with his superiors over what he saw as corrupt practices in the office. His Honour found that the cost of the damage would have been K2,000.00 and not K12,000.00 as stated in the prosecutor's summary of the facts.

24.	The offender was a first time offender, pleaded guilty and expressed remorse and co-operated with the police. These were some of the mitigating factors found in his favour. But against him the court found that the property he destroyed direct benefitted the people of Bougainville, the offender was drunk and brandishing a screw driver and had not done any tangible thing to make reparation for the damage. He was sentenced to one year imprisonment which was wholly suspended with conditions.

25.	The State v Waragu (supra) (Lenalia J.): The prisoner pleaded guilty to a charge of attempted murder and to one count of wilful and unlawful damage to a company vehicle which he and 11 friends of his had commandeered outside of Rabaul Town. The prisoner and his accomplices viciously attacked the driver of the vehicle and his two friends including the victim to these charges. In the process the gang cut the vehicle's bonnet with a bush knife and smashed the windscreen and set upon attacking the three men killing two of them and stabbing the current victim in the neck. For the charge of damaging property the prisoner was sentenced to 1 year imprisonment.

26.	The State v Jan Tundobo & Ors CR No. 822 of 2008, (unreported and unnumbered judgment dated 10th December 2008)(Makail J.): There the prisoners had entered the office of a school principal armed with knives and axes. They destroyed a computer, printer and printer cables, a scanner and photo-copier. The loss to the school was K16,442.80. His Honour sentenced the prisoners to 1 year imprisonment which he wholly suspended with conditions.

27.	In The State v Telape (2009) N3815 (Ellis J.): The prisoner pleaded guilty to a charge of unlawfully damaging property contravening to Section 444(1) and 444(9)(i) of the Code. The offender owned land on which a power pylon supplying electricity to Porgera Gold Mine was installed. He did not receive payments for the use of his land for some 10 years so in an attempt to rectify the situation and get the authorities' attention, he chopped down 2 power pylons. It cost the Mine K394,842.00 to re-erect the pylons and 7 days during which the Mine had to run on diesel generated power. His Honour considered this to be the worst kind of case for this offence and sentenced the prisoner to 7 years holding that the appropriate sentence should not only be determined by the conduct of the offender but also by the consequences of that conduct. 

28.	The State v Minji; The State v Sakol (supra)(Makail J.): The five prisoners there were found guilty after trial for the wilful damage of a substantial number of coffee trees owned by the Banz Catholic Church, the total value of which was in excess of K45000. They were members of a clan which formerly owned the land on which the coffee plantation and the Mission Station were on. Having successfully negotiated with Church Authorities for the return of the land the prisoners were frustrated about slow progress of the transfer of title to them and set about to chopping down the coffee trees on the land. Four of the prisoners were sentenced to 1 year imprisonment while the fifth was sentenced to the rising of the court having spent 1 year and 9 months in pre-trial custody.

29.	What is implicit from all the above cases is that there was some degree of pre-meditation and determination on the part of offenders in each case quite apart from the fact that in The State v Jan Tundobo & Ors (supra), The State v Telape (supra) and The State v Minji; The State v Sakol (supra) the cost of damage were very substantial as we have seen. However, like the present case, all except the latter, involved destruction to public property. Three of these matters attracted sentences of 1 year whilst Telape who was charged under Section 444(9) (i), a crime and not a misdemeanour, was sentenced to the maximum under that proviso which is 7 years. So what about your cases?

YOUR CASES

30.	Viewed objectively your cases are serious but I do agree with the State they may not be the worst instances of this type offence despite the huge loss to the NFA and your community. The objective seriousness of your offence would therefore lie somewhere in the mid-range.
 
31.	Let me now consider the subjective circumstances of your individual cases which include your respective personal circumstances, the circumstances surrounding the offence and the effect of the offence to the State and the community.

32.	I find the following mitigating factors common to all three of you. You all pleaded guilty early and this saved time and money for the State. You are all first time offenders and you cooperated with the police and NFA officers. You are all simple villagers who are at the most illiterate or functionally literate. You showed genuine remorse for what you did even though that may not have been accompanied by anything tangible such as payment of or offer for compensation which would have been impossible any way given your obvious lack of financial capacity. You did not injure or cause violence on anyone in course of committing the offence. I accept that this was indeed an offence of opportunity in that there was no premeditation by any of you. I accept that you surrendered solar panel and lights bulbs that you dismantled and removed from the FAD almost immediately to the police and these have all been returned NFA. I accept also, without evidence to the contrary, that you acted under the mistakenly belief that the device might have belonged to illegal fishing vessels that are often sighted in the coastal waters around the island. I also accept that there might not have been sufficient awareness by NFA of its installation of FADs on the island. (Saperus Yalibakut v The State (2006) SC 890).

33.	On the other hand the one thing that comes up immediately in your case is that the damage you caused to the FAD was substantial and the collateral loss of economic benefit and negative impact on food security to the community cannot be overstated. The value and the cost of installing the device to NFA was K22000. These I find to be significant aggravating factors against you. So while this may not be a worst case, what nonetheless should be an appropriate sentence for you and what should such sentence seek to achieve? 

34.	The purpose of a sentence in this case is two-fold. First, to punish you personally and second, to deter you personally as well as others who may be similarly inclined or disposed. As I said in the case of The State v Ronnie Anoia, CR 654 of 2013 (unreported and unnumbered judgment dated 25th October 2013 delivered at Alotau) where the prisoner merely had chanced upon the disabled FAD and cut the rope anchoring the device after you and your accomplices had removed and carried away the solar panel and light bulbs:

"26.	... [T]he device was an expensive one which cost NFA some K22,000.00 and would have cost a lot more in installing considering that they had used a ship or vessel to do that. Further, the device was installed for the benefit of locals including [yourselves] to improve fish stock by concentrating fish in one area to make it easier for fishermen like you to catch fish. The destruction of the device resulted in a direct loss to the local community by negatively impacting on food security and the economic benefits to them through fishing. The material in the depositions shows that the FADs were installed to mitigate the loss of income [in island communities such as yours] from Beche de mer when the moratorium on that fishery was imposed.

27.	It is clear, therefore, that the consequences of the destruction of the FAD had a very negative impact on your island community. To that end I agree entirely with what His Honour Ellis, J. said in The State v Telape (supra), that a sentence must not only take into account the offender's conduct but also the consequences of that conduct.

28.	The consequences of the FAD's destruction are as I have alluded to above is far reaching. While it is a loss to NFA, it is a greater loss to the local people for whose benefit the device was installed in the first place. 

29.	... [T]he offence is ... serious enough to warrant a sentence that must serve to deter you and exact upon you respect for valuable State assets that are provided [at great cost] by the State and its agencies such as NFA or our donor partners which every member of the recipient communities must also protect.
...
31.	The fact that the device may have seemed suspicious to you was not a reason for you to destroy it. I have seen the photographs of the device from the file and it does look a little odd but why quickly conclude that just because it looks suspicious it has to be destroyed? Should not curiosity lead one to enquire a little bit more? Being a simple uneducated villager does not equate to being stupid because we are all endowed with the faculty to reason things out before we take action. So, your behaviour, even if it was driven by suspicion that the device belonged to illegal fishing vessels, should not [excuse your subsequent actions] for how would you know for a fact that it was? On the contrary the letters "NFA" and "FAD would have been clearly written in big bold letters on the damaged device. This is apparent from photographs on file of the FAD that was installed at Siagara where these acronyms are clearly shown together with the number of the device."

35.	And I must add here that the State relied on the same material to prosecute all these matters including your own cases. I must also venture to say that the damage to the FAD and resultant loss to the community was totally unnecessary and whilst your actions cannot be condoned or excused NFA's apparent failure to conduct extensive awareness for its programme also contributed to the eventual destruction of the FAD at Awaibi. It is perhaps not too much to ask that in the future adequate awareness should be conducted in island communities before such devices are installed to prevent legitimate suspicion that these may belong to illegal fishing vessels which are known to frequent our coastal waters because of lack of surveillance by State authorities. But what should be appropriate sentences for the three of you?

36.	I sentenced Ronnie Anoia for his part to 1 year imprisonment. He had been in pre-sentence custody for 8 months. This was deducted from the head sentence. However, I also sentenced an accomplice of yours Jerry Hileya to 14 months imprisonment for his part in actually damaging the FAD in concert with you three. I deducted 8 months from his sentence leaving a balance of 6 months. None of this was suspended. (See The State v Jerry Hileya, CR 656 OF 2013 (unreported and unnumbered judgment dated 25th October 2013 delivered at Alotau). There I also reiterated what I said in Ronnie Anoia's case.

ORDERS

37.	An appropriate sentence for you then naturally ought to be similar to that of Jerry Hileya. In all fairness I ought therefore to sentence each of you to 14 months imprisonment. You have been in pre-sentence custody for a period of 1 year and 10 days which must be deducted from your head sentence. That should leave a balance of 1 month and 20 days. 

38.	However, seeing that the application of a one third remission by Correction Service will more or less cancel out the balance of the resultant sentence I am of the opinion that you should instead be sentenced to the rising of the Court. The period you have already spent in custody should be adequate punishment for you. I therefore sentence you to the rising of the Court on Friday 17th March 2014 or earlier if the Court sooner rises.

Orders accordingly.

___________________________________________________________________________
Public Prosecutor:	 Lawyer for the State
Public Solicitor:	 Lawyer for the Prisoners