State v Wesley [2019] PGNC 495; 13 November 2019 (13 November 2019)

N9262

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 206 - 210, 212 OF 2017

THE STATE

V
JACK BAMUA WESLEY, CAPTAIN NORMAN TORRES,
ERIC CHAPMAN, HENRY WESLEY, TENCY MAIKE,
JOSHUA NELSON & WILLY ANDY

Alotau: Toliken J
2019: 13^th November

CRIMINAL LAW – Sentence - Stealing – Guilty plea – Multiple offenders – Properties including unprocessed sea cucumbers impounded by State authorities from impounded illegal foreign vessel and awaiting clearance and further investigation – Properties removed on instructions from local member of Parliament – Action an upfront to law enforcement – Properties either fully returned or full restitution of value made – No benefit from the crime – Mitigating and aggravating factors considered – Appropriate sentence – Pecuniary fine of K2000.00 – Criminal Code Ch. 262, ss 7, 19(1)(b), 372(1)(5)(c)(10).

Cases Cited

Belawa v The State [1988-89] PNGLR 496
The State v Max Bruno (2016) N6292
The State v Melvin Kalamak (2017) N6739
The State v Augustine Kinbenem (2019) N7891

Counsel

A Kupmain, for the State
N Wallis, for the Prisoners

SENTENCE

13^th November, 2019

1. TOLIKEN J: The prisoners pleaded guilty to an indictment which alleged that on the 5^th day of October 2016, they stole 17 x 200 drums of wet or unprocessed sea cucumbers valued at K1,009,330.64, and K12,000 worth of fuel, the property of National Fisheries Authority (NFA) and the Independent State of Papua New Guinea from an impounded Vietnamese vessel described as QNG 90181TS, and in so doing contravened Section 372(1)(5)(c)(10) of the Criminal Code Ch. 262 (the Code).
   
2. I gave an ex tempore judgment and undertook to provide a written one. This I now do.
   
3. The brief supporting facts which were put to the prisoners on arraignment and upon which I am going to sentence them are these. On the 5^th of October 2016, a Vietnamese Fishing Vessel was captured and impounded by Samarai Police and was anchored offshore from the main wharf at Samarai Island. On Thursday 6^th of October 2016, the then Member for Samarai-Murua, the Honourable Gordon Wesley MP, instructed the prisoners to unload the sea cucumbers from the vessel, and loaded them onto MV Tama, a vessel owned by prisoner Jack Bamua Wesley. He further instructed them to transport the sea cucumbers to his (Honourable Gordon Wesley) village at Tewala on Skeleton Island. They did exactly that.
   
4. The sea cucumbers were packed in 17 x 200-liter drums and were in the custody of the State Authorities awaiting normal clearance and investigations to take place. The Authorities such as Immigration, Customs, NFA and the Police were involved. The NFA valued the sea cucumbers at K1,009,330.64. Apart from the sea cucumbers the prisoners also took and carried away K12,000 worth of fuel.
   
5. The State invoked Section 7 of the Criminal Code in that while the prisoners were the main perpetrators, they aided and abetted the Honourable Gordon Wesley.
   
6. The prisoners were charged under Section 372(1)(5((c)(10), of the Criminal Code which relevantly provides:
   

372. STEALING.

(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

...

(5) If–

(a) ...

(b) ...

(c) the thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; or

the offender is liable to imprisonment for a term not exceeding seven years.

...

(10) If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.

...

7. The prisoners here are therefore liable to be imprisoned for a term not exceeding 7 years. The law is, however, settled that the maximum penalty for any offence is always reserved for the worst type of cases. The law is also settled that each case must be treated on its own facts and circumstances. (Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 92)
   
8. My task then is to decide what an appropriate sentence for each prisoner ought to be.
   
9. The prisoners have each addressed the Court on sentence. Norman Torres apologized to the Court for what he did. He said that he was instructed to pick up and drop off the properties in question which was what he did. He asked the Court for mercy. Tency Maike also apologized to the State for his mistake and promised not to re-offend and he asked for the Court’s leniency. Henry Wesley, also apologized to the Court, to the police and NFA for his actions and asked the Court to show him mercy. Eric Chapman, also apologized to the Court, to the Alotau Police, the NFA Enforcement Officers and he said he regretted his actions. He promised to ensure he does not re-offend in the future. Joshua Nelson also said sorry for his actions and asked for the Court’s understanding and forgiveness. He said he is sincerely sorry and apologized to the Police Officers in Alotau and NFA for his actions. He also promised not to repeat the same mistake. Jack Bamua Wesley apologized to the Court and to NFA. He asked for forgiveness. He also apologized to his captain, that is Norman Torres and his crew on the MV Tama for the distress and hardship he caused them and their families. He also undertook not to re-offend. Finally, he thanked the State agencies for helping them to stop the Blue Boats, that is the illegal foreign fishing boats.
   
10. Moving on to the personal particulars of the prisoners, the prisoner Norman Torres is from Magai Kalona Village on Sariba island in the Bwanabwana Rural Local Government in the Samarai District of Milne Bay Province. He is 45 years old now. He is a single father of 4 children. He is the first born in the family of 6 siblings. His parents are still alive but old and are living in the village. He is a member of the Kwato Church and was formally educated up to Grade 8 at Cameron High School in 1988. After leaving school he attended a Small Craft Captain’s Course and did some practical work on local boats. He was first employed by Samarai Pearl Company as a ship captain from 2003 up to 2006. In 2012 he got employment on the MV Tama as captain and was working in that capacity when arrest. He is a first-time offender.
    
11. Tency Maike is from Bedauna Village at Basilaki Island, Bwanabwana Local Government area in the Samarai Murua District. He is 33 years old now. He is married but has no children. He is the 5^th born in a family of 6 siblings. His parents are both still alive and living in the village. He is an adherent of the United Church and was educated up to Grade 4 at Bedauna Primary School. He was first employed on the MV Ackno as a crew member in 2012. He left and joined MV Tama in 2015 and was working as a crew on the Tama at the time of his arrest. He is also a first-time offender.
    
12. Henry Wesley is from Tewalai Village on Skeleton Island. He is 36 years old. He is a single father of 3. His wife deserted him after he was charged with this offence. The prisoner is the first born in the family of 4 siblings. His parents are old and are living in the village. He is a follower of the United Church. He has no formal education and he is illiterate. He started working as crew boy on MV Tama in 2012 and was working there up until his arrest. He is also first-time offender.
    
13. Eric Chapman is from Lagesube village, Tubetube Island and he is 32 years old. He is a single father with a child of 2 years from his de facto relationship. He is the 3^rd in a family of 5 siblings. Both his parents are still alive. His father is residing in Alotau town while the mother is residing in the village. He is a member of the United Church and completed grade 10 at Wesley High in 2004. He started working on MV Tama as a Second Engineer in 2012 and in was still employed in that capacity when he was arrested for this offence. He is also a first-time offender.
    
14. Joshua Nelson is from Wagifa on Goodenough Island, in the Kiriwina/Goodenough District. He is 33 years old and married with 2 children. He is an only child. Both his parents are still alive and living in the village. He is a member of the United Church and was educated up to grade 8 at Wagifa Primary School in 2001. He started work as a crew member on the MV Tama in 2012 and was later promoted to Engineer after he attended an engineering course at Pacific Maritime College in Port Moresby in 2014. He was still working on the Tama when arrested. He was also a first-time offender.
    
15. Jack Bamua Wesley is from Tewalai Village on Skeleton Island. He is 46 years old. He is a single father of 5 children who are all under his care. He is the first born in the family of 3 males from the same mother. Both his parents are still alive and living in Alotau town. He is a member of the Anglican Church. He has tertiary level of education having completed a Diploma course at Divine Word University. He was first employed by the Milne Bay Estate as a Debt Collector in 1996. He resigned to manage his father’s business up until 2012. He then left to run his own business - MV Tama Shipping Services up until time of his arrest. The prisoner is also a first-time offender.
    
16. So, as I alluded to at the outset, the issue is - what should be an appropriate sentence for the prisoners.
    
17. Mr. Wallis submitted in his written submission that this is not a worst case of stealing. He cited several cases to assist the Court in arriving at an appropriate sentence for the prisoners. He also cited factors which he said mitigate each of the prisoners’ offence and submitted therefore that an appropriate sentence ought to be a fine of K1,000.00. But if the Court is mindful of imposing a term of imprisonment, then, an appropriate term would be 3 - 4 years imprisonment.
    
18. There is a Pre-Sentence Report (PSR) for each prisoner. The Reports are well balanced. They captured the views of the prisoners, their leader Gordon Wesley, and the NFA Compliance Officer Mr. Steven Klembassa. The author of the Pre-Sentence report assessed each prisoner as being suitable for probation supervision but recommended that they be placed on good behavior, or penalty the Court deems appropriate.
    
19. Mr. Kupmain, for the State, conceded that the prisoners are not the major perpetrators and did not play a major role in the planning of this offence. They were merely carrying out instructions from their local Member of Parliament. However, counsel urged the court to consider what the international community would think of Papua New Guinea in the light of this type of behavior. Mr. Kupmain also said that by their actions, the prisoners put the citizens of Papua New Guinea and Milne Bay in danger in that they prevented State authorities such as Customs, Quarantine, Immigration and the NFA from conducting their lawful duties. And he finally said that the State reserves the right to prosecute the main perpetrator Mr. Gordon Wesley in due course.
    
20. At this juncture I would say that this is not a worst case of stealing and if a starting point is to be fixed it can be fixed at the 3 ½ years.
    
21. I accept most of the mitigating factors Mr. Wallis cited to the Court. The prisoners pleaded guilty to the offence and in doing so they saved time and money for the State had it been forced to run a trial. Each prisoner is a first-time offender or has no prior convictions. Prior to their offending, they were all of good character. Each prisoner has also shown what I take to be genuine remorse for his action. They individually co-operated with the police by voluntarily surrendering themselves and freely answering questions in their respective records of interview. I also accept that they assisted in the capture of the fishing vessel with their own resources and cost. And finally, no physical injuries or assaults were committed on officers of the State who were in lawful custody of the properties that were stolen.
    
22. I further accept that the prisoners were not the main perpetrators in the commission of this offence. The prisoners were merely following instructions from Mr. Gordon Wesley and I accept that they did not in any way benefit from the proceeds of their offence. All properties that were taken - fuel and sea cucumbers - were all recovered and returned to the NFA and other relevant authorities. The sea cucumbers were in fact processed and sold by the State.
    
23. Furthermore, the prisoners suffered loss of business, loss employment and income after the MV Tama was detained, firstly by the NFA and later by the District Court which ordered that the MV Tama be impounded and kept out on Bay where it was subjected to and exposed to the elements. That situation subsisted until the National Court ordered the release of the MV Tama several months later by which time Mr. Henry Bamua Wesley suffered substantially from loss of business.
    
24. Against the prisoners, however, are the following mitigating factors - first, the prisoners defied lawful orders from State authorities, and second, the offence of stealing is a prevalent offence, though it cannot be said that this particular type of stealing is a very prevalent one. This may be the first time that something like this had happened but stealing generally is a very prevalent offence right across the country.
    
25. What then should be an appropriate sentence for the prisoners?
    
26. The leading case for offenses of dishonesty is that of Belawa v The State [1988-89] PNGLR 496. The Supreme Court there set some guidelines to assist the sentencing court in determining appropriate sentences for offences of dishonesty including stealing. The Supreme Court said that factors to be considered include the amount or value of the property taken, the degree and quality of trust reposed in the prisoner, the period over which the offence was committed, the impact of the offence on public confidence, the purpose for which the money stolen was put, whether there was restitution, the nature of the plea and whether it was an early one and the effect of the offence on the victim and the offender himself.
    
27. The court then suggested some tariffs. Where the amount dishonestly applied is between K1.00 to K1000.00, a jail term should not be imposed. For amounts between K1000.00 to K10,000.00, 2 years imprisonment, amounts between K10,000.00 to K40,000.00, 2 to 3 years imprisonment and where the amount is K40,000.00 to K150,000.00, 3 to 5 years. And of course, the maximum penalty will be imposed in worst cases.
    
28. In the instant case, the sea cucumbers were valued at K1,009,330.64 and K12000.00 worth of fuel. There was no trust involved here and the offence was committed or perpetrated over 2 days only. We can say with some confidence that this offence impacted on public confidence in law enforcement in that the prisoners treated law enforcement officers with total contempt when they chose to listen to instructions from Mr. Gordon Wesley instead of complying with lawful directions. And it also set a bad precedent in that people will think that it is alright for them to defy State authorities with impunity.
    
29. The prisoners benefited very little, if at all, from their illegal acts. While the State may have suffered because of the upfront to its law enforcement authorities, I would say that the effect to it would be quite minimal. Everything that was taken from the Vietnamese boat had been either fully restituted or returned or things like petrol were reimbursed. The prisoners also expressed genuine remorse.
    
30. Their guilty pleas were not early ones, but neither were they very late. And the prisoners are all first-time offenders.
    
31. The prisoners’ actions did not come without cost to them personally and individually though. We have seen that the prisoners, i.e., Norman Torres and others were employed by co-prisoner Henry Bamua Wesley on the MV Tama in various capacities. They have all suffered due to loss of employment and income. They also suffered emotional stress. Their innocent families also suffered.
    
32. Applying the Belawa tariffs – which are by the way now out of date to say the least – the prisoners are looking at sentences between 3 – 5 years.
    
33. Mr. Wallis cited several cases of stealing which he said are similar to the current case. In The State v Max Bruno (2016) N6292 (Lenalia J), the prisoner and his accomplices went to a logging camp in Pomio, East New Britain Province. They gained access into a 23-foot container by cutting the lock with a hacksaw and stole 7 chainsaws. The court considered a non-custodial sentence was most appropriate and ordered the offender to pay a fine of K2,000.00 in default 12 months imprisonment.
    
34. In The State v Melvin Kalamak (2017) N6739 (Bona J) the offender there pleaded guilty to one count of stealing K98,000.00 in cash and 2 gold bars valued at K10,274.00 from two expatriate gold buyers who had engaged him to assist them. While the expatriates were out having lunch, the offender entered a room used by one of them. He took two boxes containing the cash and gold bars and left Arawa for Buka. He bought an airline ticket and was about to fly to Rabaul when he was apprehended by the police. The gold and much of the money was recovered. The offender was sentenced to 3 years imprisonment less the time spend in custody. The balance was wholly suspended on condition.
    
35. In The State v Augustine Kinbenem (2019) N7891 (Koeget J) the prisoner pleaded guilty to one count of stealing 2 sample parcels of dried gold concentrate valued at K2,287.00 from his employer Ok Tedi Limited in the course of his employment as a Gravity Operator at the mine’s processing mill. He took the gold out of the mill after his night shift but was caught later in town (Tabubil) when mine security were alerted. The gold was recovered hence the offender did not benefit from his offence. He also lost his employment as well as his employment benefits. The court was of the view that the offender’s mitigating factors outweighed his aggravating factors. The offender had also spent about 8 months in pre-sentence detention. For those reasons he was sentenced to the rising of the court.
    
36. Unlike the above cases where offenders were the main perpetrators, the prisoners in the current case were not. They were acting under the instructions of Mr. Gordon Wesley. Notwithstanding that, the State invoked section 7 of the Code because they aided and abetted Mr. Gordon Wesley and therefore ought to be treated as principal offenders as well.
    
37. I have heard the submissions and the prisoners’ pleas in mitigation and considered the relevant sentencing principles and precedents. The prisoners ought to be given appropriate sentences that must reflect their participation in this offence. To a non-lawyer they may not be considered principal offenders, but in law they are, because they physically and willingly assisted in carrying out Mr. Gordon Wesley’s instructions and stole the properties in question which neither them nor Mr. Gordon Wesley owned.
    
38. This type of offences is, as I said, an upfront to law enforcement. I consider their culpability to be relatively low because they were acting on instructions by Mr. Gordon Wesley who at that time was the sitting member for Samarai-Murua. So much so that they felt more compelled to listen to him than to respect the lawful authorities that had impounded the Vietnamese boat and its contraband cargo.
    
39. I agree with Mr. Kupmain that this action has endangered the health and safety of citizens of Milne Bay, especially the Samarai islands where the prisoners come from. The boats were awaiting clearance, firstly by Quarantine Officers, who by law, are the very first people to board and inspect foreign vessels. By failing to allow the Quarantine Officers to do their job, the prisoners put at risk the life and health of themselves and other resident of Samarai islands and the larger Milne Bay. Customs Officers were also not able to perform their legal duties. The National Fisheries Authorities were also impeded in the performance of their lawful duties. This willful contempt for the authority of the State cannot be countenanced by this court.
    
40. However, they have significant mitigating factors which outweigh the aggravating factors. I should think therefore that an appropriate sentence should be one that is similar to that imposed by Lenalia J in The State v Max Bruno (supra.). There the value of property stolen was only K49,000.00 whereas in the instant case we are talking about properties valued over K112,000,000, most of which were either restituted or returned to the State authorities. Hence aside from the obvious affront to its authority, the State through NFA did not lose financially or in any significant way for that matter.
    
41. That said, this kind of behavior should stop or be discouraged and condemned. I am sure, though, that the prisoners here have learned a hard lesson. Mr. Bamua Wesley has lost business as a direct result of his offending and Mr. Torres and his crew have lost employment - they have lost incomes and their families have suffered emotional distress as well as financial losses. The prisoners no doubt have learned a hard lesson, well before their conviction, that you and loved ones will suffer serious consequences if you decide to unlawfully frustrate and impede State authorities from exercising their lawful duties - duties which are imposed by law for the benefit of the State and its citizens.
    
42. From the time of their arrest up until now, they have frequented the courts wasting valuable time which they could have better utilized for their benefit and the benefit of their families and businesses. While they were on bail, their bail conditions impeded their free movement. The lesson again is that you should not impede State authorities from performing their lawful duties.
    
43. So, should I sentence the prisoners to a term of imprisonment?
    
44. I said earlier that if I were to consider a term of imprisonment, the starting point would be 3 ½ years. Ideally the prisoners ought to be sentenced to 3 ½ to 5 years imprisonment. I am, however, of the view that a pecuniary sentence or penalty would be more appropriate in the circumstances.
    
45. And so, pursuant to the Court’s power under Section 19 (1)(b) of the Code, I therefore order that each prisoner shall, within 1 week from today, pay a fine of K2000.00 in default 12 months imprisonment with hard labor. I further order that the prisoners’ bail and any sureties paid by their guarantors be refunded forthwith.
    
46. This is the sentence of the court and I order accordingly.

________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoners