State v Dar [2015] PGNC 212; N6106 (21 October 2015)

N6106

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1229 OF 2014

BETWEEN

THE STATE

AND

JAMES DAR

Minj: Makail, J
2015: 19th & 21st October

CRIMINAL LAW – Sentence – Wilful damage to property – Damage to fuel pumps of fuel service station – Offence aggravated by mob attack – Raid by tribesmen – Prisoner was ring leader – Retaliatory attack – One of tribesmen assaulted – Substantial property loss – Loss in excess of K140,000.00 – No restitution made – Prevalence of offence – Matters in favour of prisoner included being a first offender – Remorseful – Presence of de facto provocation – Suspended sentence imposed with conditions – Criminal Code – Sections 19 & 444(1) – Criminal Law (Compensation Act, 1991 – Section 5(3)(b) – Probation Act – Sections 16, 17(1)(c) & 18(1)(b).

Cases cited:

The State v. Balthazar Basan & Herman Sarea (2012) N4896
The State v. Betty Kaime: CR No 1973 of 2002 (Unnumbered & Unreported Judgment of 13th November 2008)
The State v. Jackson Nimai (2008) N3355
The State v. Jan Tundobo & 4 Ors: CR Nos 822-825 & 950 of 2008 (Unnumbered & Unreported Judgment of 10th December 2008)
The State v. Lucy Kaman & Another: CR Nos 815 & 816 of 2013, a decision by Poole J of November 2014
The State v. Steven Molu Minji: The State v Didi Gelwak Sakol (No 2) (2009) N3794

Counsel:

Mr. P. Tengdui, for State
Mr. P. Moses, for Prisoner

SENTENCE

21st October, 2015

1. MAKAIL, J: After a trial, the prisoner was found guilty of wilfully damaging property, an offence under Section 444(1) of the Criminal Code. He was the ring leader of a group of men and incited them to damage fuel pumps of FM service station owned by Jimi Valley Trading ("JVT") at Banz town on Saturday 04th January 2014 which made him a principal offender under Sections 7 and 8 of the Criminal Code.

2. He led his tribesmen from the Kapankuk, Anskuk and Kumunka clans or in short KNK tribe as is commonly referred to by locals in the Banz area to FM service station on the given date and damaged the fuel pumps. The total value of damage is said to be over K140,000.00.

3. This offence carries a maximum penalty of a term of 2 years imprisonment. The maximum penalty is usually reserved for the worst case. Depending on the facts of a given case, the Court has discretion under Section 19 of the Criminal Code to impose a lesser sentence.

4. On his allocutus, the prisoner apologised to the Court and the victim Mr Robert Mundi for what he did and accepted full responsibility for his actions. He pleaded for leniency and asked for a non-custodial sentence because of his three children who needed his support. The eldest son is attending Grade 9 and will need his support to pay his school fee of K670.00 and other expenses. Likewise his second son who is attending Grade 5 will need his support so as his daughter who is doing Grade 4.

5. The other reason he gave was that the living conditions at the prison facilities are unfit for human habitation. There is a rise in diseases such as malaria, typhoid and pneumonia. The rise of these diseases is exacerbated by the long dry spell experienced by the country at this point in time and poses a real threat to his health. He also blamed the police for the damage.

6. His counsel Mr Moses first gave his personal details. He is married with three children. He does not have a formal employment but prior to the commission of the offence, was a police reservist on a voluntary basis. He is the last of two siblings. His father is dead and his mother is still alive but very old. He is a member of the Prayer Tower Ministry Church. He has been in pre-trial custody for 6 months, 3 weeks and 3 days.

7. Secondly, his counsel submitted that the matters favouring him are that he is a first offender, is remorseful and that there was presence of de facto provocation. The prisoner and his tribesmen were provoked when one of their tribesmen was assaulted the night before by Mr Mundi, the proprietor of the fuel service station and retaliated in the way they did after they did not find him to settle the dispute. This is a strong mitigating factor which significantly reduces the seriousness of the offence and would attract a lesser penalty than the maximum. Finally, restitution is not appropriate because police were also involved in the raid of the property and the proprietor Mr Mundi has sued the police and the State for the loss. If the claim is successful, it would amount to unjust enrichment on the part of Mr Mundi if the Court were to also order the prisoner to make restitution to Mr Mundi.

8. Thirdly, counsel referred to past decided cases such as 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); and The State v. Steven Molu Minji: The State v Didi Gelwak Sakol (No 2) (2009) N3794 and submitted that the Court imposed sentences ranging from a term of 6 months to one year imprisonment and except for Steven Molu Minji & Ors, in the other two cases, the Court suspended wholly the sentences on strict conditions one of them being for the offenders to make restitution.

9. Counsel also referred to a recent case of The State v. Lucy Kaman & Another: CR Nos 815 & 816 of 2013, a decision by Poole J of November 2014 during a court circuit to Minj where he submitted his Honour sentenced one offender to 18 months and the other to 20 months imprisonment respectively for wilful damage to property. His Honour suspended wholly the sentences with no order for restitution. That was a case where the female offenders were part of a group of men who raided a block of land with coffee trees and food crops. Livestock were also poisoned with insecticide. An independent valuation put the loss at over K200,000.00.

10. Taking all the matters favouring the prisoner and the sentences imposed by the Court in those past decided cases into account, counsel submitted that an appropriate sentence would be a term of one year imprisonment. Time spent in pre-trial custody of 6 months, 2 weeks and 3 days should be deducted and the balance of the term should be suspended and the prisoner be placed on good behaviour bond.

11. Counsel for the State Mr Tengdui submitted that the offence is aggravated by a number of factors. First, it was a mob attack. It was a raid by the prisoner's tribesmen and he led them. Secondly, the prisoner was the ring leader. Thirdly, it was a retaliatory attack after one of their tribesmen was assaulted. Fourthly, their actions resulted in substantial property loss. The monetary loss is in excess of K140,000.00. The damaging of the fuel pumps has crippled the business operations of the victim. Fifthly, no restitution was made by the prisoner and his tribesmen and finally, the Court must note the prevalence of the offence. In the context of damage to a business property, it hinders and undermines the economic development and progress of the newly established Jiwaka Province.

12. Counsel further submitted that the presence of aggravating factors outweighed the mitigating factors and supported a custodial sentence of a term of 18 months imprisonment.

13. I agree with Mr Tengdui's submission that the aggravating factors outweigh the mitigating factors. This was a case of a mob attack on a property. The fuel pumps that were damaged generated money for the victim's business. Mr Mundi's business is now crippled or worse still, over unless it is insured and the insurer may come to his rescue, to resuscitate his business or if he is able to find money elsewhere, to start it all over again.

14. Mr Moses asked me to find that the prisoner and his tribesmen were provoked because one of their tribesmen was assaulted by Mr Mundi and they reacted in the way they did. I reject this submission. What they did was totally irresponsible and uncalled for. It was also a cowardly act. They felt strong and intimating when in a group so that they could force the other side to submit to their demand. That is not how a conflict should be resolved.

15. If they were genuine, they would have reported the assault to the police and left it to the police to deal with it. Taking the law into their own hands only leads to more trouble. As the saying goes "violence breeds violence." As a consequence, the victim has lost the fuel pumps. He cannot operate his fuel service station business. The flow on effect is his staff members are rendered jobless and he generates no income. As to the general public and motor vehicle owners, unless there is an alternative fuel service station nearby, there will be none in Banz town for them to refill their motor vehicles and other use and will have to travel further to get fuel. So the impact of his actions is enormous.

16. The submission made by Mr Tengdui about such unlawful actions hindering and undermining economic development and growth in this province is a significant point and worthy of further comment. If Jiwaka Province is to be truly independent politically, economically and socially and experience economic growth, such unlawful actions by tribes within it must cease. There must be a change in the mind set of the people. That resorting to violence will not bring economic and social prosperity. That they must stop these unlawful activities and resolve conflicts in an amicable way for their common good.

17. There is so much this province can offer. There is abundance of coffee, tea and fertile land for growing food crops to generate income for all. Not to mention tourism. I once commented in The State v. Jackson Nimai (2008) N3355, an armed robbery case which I dealt with in the first circuit to Kundiawa in 2008 that tourism in our country is like a gold mine waiting to be mined. There is so much money in tourism. The cultural diversity and the beautiful sceneries from the coast to the highlands, the beaches, rivers, mountains, swamp lands and rainforests this country has are truly magnificent. No doubt, we have a beautiful country and the natural beauties are the catalysts for tourism.

18. Yet we do not take advantage of them; only a handful does and when there is lawlessness, it makes the task harder for them to bring in tourists. So when there is a rampage by chanting armed tribesmen through Banz town one morning, does one expect tourists to flock into Banz town in great numbers for holidays and sightseeing? They would be out of their mind if they did or anyone for that matter. This is how serious the actions of the prisoner and his tribesmen can have on the economy of the province.

19. In my view the cases of Betty Kaime (supra) and Jan Tundobo & Ors (supra) are destruction of property on a smaller scale. The former case was a case of the offender smashing a windscreen of a police vehicle due to a domestic dispute between the offender and her policeman husband. In the latter case the offenders damaged computers, printers and scanner including cables lines at a school in Southern Highlands Province. The damage in this case is on a grand scale because first, it was a rampage by chanting armed tribesmen through town one morning and secondly, the damage was substantial. Even though the attack was early in the morning, I am pretty sure it must have left many residents and visitors to the town shocked and terrified that morning. The replacing of the damaged pumps will cost Mr Mundi a sum in excess of K140,000.00. This is a substantial amount of money.

20. Mr Moses did not supply a copy of the judgment in the case of Lucy Kaman & Anor (supra) and so I do not have the benefit of the reasons of the Court to impose a wholly suspended sentence in that case. I would only note that the offenders were sentenced to 18 and 20 months imprisonment respectively which is more than the sentences I have imposed so far in a wilful damage to property case and support the State's call for a sentence of 18 months imprisonment to be imposed in this case.

21. However, the present case reminds me of the case of Steven Molu Minji & Ors (supra) because it was also a group attack on a property. The five offenders were convicted of the offence under consideration following a trial. On the morning of 31st 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. A custodial sentence of 1 year imprisonment in hard labour was imposed on each offender.

22. Taking all these matters into account and following my decision in Steven Molu Minji & Ors (supra), the prisoner is sentenced to a term of one year imprisonment in hard labour. The time spent in pre-trial custody of 6 months, 3 weeks and 3 days shall be deducted and he shall serve the balance of 5 months and 4 days in prison.

23. I have thought long and hard whether the balance of the term should be suspended. Mr Tengdui submitted that there should not be any suspension of the sentence because the prisoner has not provided a pre-sentence report and also a means assessment report to assist the Court to objectively assess whether the prisoner is a suitable candidate for a suspended sentence. I agree with this submission.

24. However, the Court still has discretion to suspend a sentence if the circumstances justify it. The factor that sways me to the prisoner's side is not his plea for his children's welfare which I find is a common excuse offenders give to avoid imprisonment or his plea for his health due to the unhygienic conditions at the prison facilities and rise in diseases which I find, is another one of those excuses offenders give to avoid incarceration but the need to make restitution.

25. He and his counsel did not mention anything about restitution in their plea for leniency. However, the prisoner must be told in no uncertain terms that because of him and his tribesmen's actions, the proprietor of the fuel service station has lost a business operation and he and his tribesmen are responsible for it. The victim of their unlawful actions has suffered substantial property loss. The loss is in excess of K140,000.00. Yet he has no inclination to make restitution nor has this Court being informed that he has made restitution or has agreed to make restitution at some future date.

26. His counsel submitted that he has no means to make restitution. I find it quite surprising to hear this submission, especially where in this region of the country, a conflict of this magnitude would result in substantial compensation made to the victim of the conflict right away to restore peace and order between the conflicting parties or if not, some undertaking that compensation will be made at some future date.

27. He can't be that serious if he is asking for a suspended sentence and yet doesn't want to pay compensation. So I consider that he must shoulder some of the responsibility for the damage. There are two parts to the issue of compensation and I agree with the view expressed by Cannings J in The State v. Balthazar Basan & Herman Sarea (2012) N4896 where he held that in setting conditions of a probation order under the Probation Act, the Court is not constrained by the monetary limit of K5,000.00 imposed on compensation orders under Section 5(3)(b) of the Criminal Law (Compensation) Act, 1991.

28. As so while I do not have the benefit of a pre-sentence report and also a means assessment report to know whether the prisoner has the means to pay compensation and what the victim thinks about a suspended sentence on condition that restitution be made, I believe a probation order to pay a sum of money as a condition of probation and suspended sentence under Sections 16, 17(1)(c) and 18(1)(b) of the Probation Act will go a long way to assisting the victim to rebuild his business. At the same time, it will hold the prisoner accountable for his unlawful actions. As to the claim by Mr Mundi against the police and the State, that is another matter relevant to the other losses suffered by Mr Mundi at the hands of the police, and if proven in Court.

29. According to the letter from the Managing Director of FM Service Station Mr Michael Semgar undated and Quotation dated 16th January 2014 – Exhibit "P4", the total cost for the damaged fuel pumps is K148,080.14. I consider that a reasonable sum for the prisoner to pay, as a condition of probation is K50,000.00. How he finds this money is his responsibility but as the leader of the KNK tribe who led the mob attack at that time, this is the time he will need the KNK tribe to back him up.

30. He will have to pay this sum within one year of this order. That is by Friday 21st October 2016. The balance of his term of sentence shall be suspended on this condition and if he fails to meet this and other conditions, the suspended sentence will be revoked and he will serve the balance of his term of sentence in prison. The second condition is that he will be of good behaviour for the balance of the term of sentence. Finally, these conditions will be reviewed by the Court in six months time and the Probation Officer is directed to prepare a report to present to the Court on that date. This date is Thursday 21st April 2016 at 9:30 am at Mt Hagen National Court. The prisoner shall also appear on this date and time.

Sentenced accordingly.

_______________________________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner