State v Noel [2016] PGNC 379; N6623 (17 August 2016)

N6623

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 218 OF 2016

THE STATE

V

NOLAI NOEL

Kokopo: Lenalia, J.
2016:28^th July, 8^th10^th, 12^th, 15^th&17^thAugust

CRIMINAL LAW – Carrying explosive substance on board Air Niugini Dash 8 Aircraft–Plea of guilty – Civil Aviation Act s.267 (2) (a).

CRIMINAL LAW – Having in possession 500ml bottle of acidic liquid containing explosive substance without notice to aircraft operators at Lihir airport.

No cases cited.

The State v Jim Kas & 3 Others

Counsel:

Mr. L. Rangan, for State
Ms. J. Ainui, for the two Accused

17^th August, 2016

1. LENALIA J: The prisoner pleaded guilty to one count of having in his possession a bottle of explosive substance containing 500ml being mercury liquid while on board an Air Niugini Dash 8 Aircraft from Lihir airport N. I. Province to Tokua airport in E. N. B. Province. This is an offence against s.267 (2) (e) of the Civil Aviation Act of 2000. This section states:
   

“267. Taking firearms, explosives, etc. on to aircraft.

(1) For the purposes of this Act, the term “firearm” means any gun, rifle, or pistol, whether acting by force of explosives or not, and includes any such gun, rifle, pistol which for the time being is not capable of discharging any shot, bullet or other missile, but which by its completion or the replacement of any component part of parts of the correction of repair of any defect or defects, would be so capable, and also includes any such gun, rifle, or pistol which is for the time being dismantled.

(2) A person who, without lawful authority or reasonable excuse, or without the permission of the owner or operator of the aircraft or of a person duly authorized by either of them to give such permission, takes or attempts to take on board any aircraft –

• (a) any firearm; or
• (b) any other dangerous or offensive weapon or instrument of any kind whatsoever; or
• (c) any communication; or
• (d) any explosive substance or device, or any other injurious substance or device of any kind whatsoever which could be used to endanger the safety of the aircraft or of persons on board the aircraft,
  

is guilty of an offence.

Penalty: Imprisonment for a term not exceeding seven years.

Facts in Brief

2. The prisoner boarded an Air Niugini Dash 8 aircraft on flight PX 187 from Lihir Island on New Ireland Province destined to Tokua airport, Kokopo then was to connect on PNG Air flight number CG1 703 to Hoskins. He had one piece of cargo only and it was a bag. He checked out at Tokua airport and he then checked in for the Hoskins flight. He gave his PNG Air ticket to the staff at the counter and his bag.

3. While his ticket was being checked for boarding details, his bag was lifted up by one of the staff to be put on the convoy belt. While the bag was on the convoy belt, the officer lifting cargo onto the convoy belt saw liquid licking from the bag.

4. The staff quickly lifted up the bag and noticed that the substance was acid. They opened the bag and found a 500ml bottle containing explosive substance namely mercury whilst in that flight from Lihir airport to Tokua airport. The matter was reported to both PNG Air and Air Niugini officers on the ground and the Police was called and he was arrested.

Addresses on Sentence

5. On the address on his last say, the offender said, he is sorry for what he did. He asked for mercy. He asked the court to consider, he has children attending school and he wants to bring his children up by providing for their education.

6. The defence counsel gave a brief address on the prisoner’s antecedent and made submission on the following mitigations on behalf of the offender:

➢ offender’s guilty plea,
➢ no previous criminal record,
➢ his cooperation with police,
➢ for purpose of sentence,
➢ the offender’s standing in the community,
➢ and the fact that no injuries or accident was caused.

7. Counsel submitted that the court should consider a non-custodial penalty as this case was not a worst type case.

8. Mr. Rangan submitted that, the life of passengers who boarded the Dash 8 Aircraft was put at great risk and the court should consider a term of imprisonment as the appropriate penalty. Counsel referred to the case of The State v Jim Kas & 3 Others ( ) Nowhere the offenders were charged for interfering with safety of the Air Niugini Aircraft at the airport in Madang. They were found guilty and sentence to 4 years.

Appropriate Law.

9. Under s.267 of the Civil Aviation Act of 2000, the offender can be sentenced to 7 year imprisonment. No case law authority was cited by counsels on this particular section of the law. The imprisonment term under Subsection (2) of the section above is less than 10 years prescribed under the Schedule 2 offences. This can also be prosecuted in the District Court.

10. I distinguish this case from the case cited by counsel for the prosecution. That case was the one where a vehicle was driven right up to the plane near one of its propellers while it was going on where they stopped.

11. In any event, he offender pleaded guilty. I consider the prisoner’s expression of remorse in his allocutus. I consider counsel’s submissions on sentence. I consider the fact that, no damage was caused and no one was injured. This is one of those crimes rarely committed.

12. Pursuant to the provision charged any explosive substance or any device or anything that may be injurious in the form of liquid of any kind or device of any sort that could endanger the safety of an aircraft and its passengers on board the aircraft is prohibited for people to carry them both in hand luggage or by carriage in cargo.

13. The court has read the comments of those contacted by the Community Base Correction Officer at the Probation office here in town. The court considers the prisoner’s guilty plea. I consider a fine should be an appropriate penalty. He is ordered to pay K1, 000.00 fine in default of payment12 months imprisonment. If he does not pay the fine, the 8 months custody period shall be deducted and he shall serve the balance.
____________________________________________

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