State v Moli [2022] PGNC 309; N9786 (13 July 2022)

N9786

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1372 OF 2016

THE STATE

V

TONGU MOLI

Madang: Miviri J
2022 : 04^th & 13^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Piracy Section 81 CCA – Plea – Sea Piracy – first offender – PSR not favourable to prisoner – serious offence – Dingy & Outboard Likened Dwelling – Man Land Creature – Life Seriously at Risk on Water – Stern & Deterrent Sentence.

Facts
Accused was part of a group of men who were armed with homemade guns and knives who held up the victim and others on the sea as they were travelling on their dingy powered by outboard motor to Madang and stole off them the dingy & outboard motor with their properties.

Held
Early Guilty plea.
First offender.
Serious and prevalent offence.
Deterrent sentence
13 years IHL

Cases Cited:
Passingan v Beaton [1971-72] PNGLR 206
Golu v The State [1979] PNGLR 653
Hagena v State [2017] PGSC 55; SC1659
Gimble v The State [1988-89] PNGLR 271
Thress Kumbamong v The State (2008) SC1017.
State v Kevin [2011] PGNC 214; N4675
Public Prosecutor v Don Hale [1998] SC564
Anis v The State [2000] PGSC 12; SC642
State v Malo [2006] PGNC 231; N4520
Marase v The State [1994] PNGLR 415
Meaoa v The State [1996] PNGLR 280

Counsel:

D. Ambuk, for the State
N. Katosingkalara, for the Defendant

SENTENCE

13^th July, 2022

1. MIVIRI J: Tongu Moli of Marakum village, Rai Coast district, Madang Province is charged with Sea Piracy that he on the 27^th January 2016 at Tabalip Point Kul Village stole from the victims money and their properties whilst they were in their dingy enroute by sea to Madang. He was accompanied by others and armed with homemade guns and knives, threatened them with the weapons and stole K 33, 300.00 worth of properties, which included the dingy and the outboard motor and then they escaped.
   
2. The charge is contrary to Section 81 (1) (2) Criminal Code Act prescribing a maximum penalty of life imprisonment. Which is in the following terms:
   

“ Section 81. PUNISHMENT OF PIRACY.

(1) A person who, within the territorial jurisdiction of Papua New Guinea, commits piracy is guilty of a crime.

Penalty: Subject to Subsection (2) and to Section 19, imprisonment for life.

(2) If piracy is committed with respect to a ship, and if at or immediately before or immediately after the time of committing the crime the offender–

(a) assaults any person on board of or belonging to the ship, with intent to kill him or to kill any other person; or
(b) wounds any such person; or
(c) unlawfully does any act by which the life of any such person is endangered,

the offender is liable to be sentenced to life imprisonment and is eligible for parole after 30 years.”

3. The maximum penalty that can befall the prisoner is life imprisonment with eligibility for parole after 30 years. Which is by the Criminal Code Amendment Act No. 10 of 2022 certified of the 12^th April 2022 amending the penalty provision to life imprisonment as set out above. That is by the facts and circumstances due the worst case of piracy. In my view the present case is not the worst case of piracy. And so, it will draw a determinate term of imprisonment and not the maximum penalty of life imprisonment. Because it is undisputed that the maximum penalty is reserved for the worst case, Passingan v Beaton [1971-72] PNGLR 206 which was reaffirmed in Golu v The State [1979] PNGLR 653. In his favour at the outset is the fact that he has pleaded guilty to the matter. The section makes it clear that if there is any violence that is offered over and above endangering the life of those within, it increases the penalty due the offender. The evidence depicts that is the case here with the victim and others within taken to a remote location where they were tied up and their properties taken including the subject dingy and outboard motor. It is not a light matter given.
   
4. They were simply minding their own business going about their own lives seeking to come to Madang when they were held up at open sea with the guns and bush knifes that the prisoner and accomplices had. And the facts upon which you pleaded guilty are that on the 27^th of July 2016, you were one of the persons on the Dingy that was powered by a Yamaha 60 horsepower outboard motor that approached the dingy and Yamaha 40 horsepower of Darius Ponda the complainant with others. He was on that dingy with others who were going to Madang. You and accomplices approached them at Tabalip Point between Kul village and Marakum village. Realizing who you were Darius Ponda and others who were in that dingy jumped off the boat into the sea and attempted to swim to the shore. But you went after them with your accomplices and forced them back into the boat. And once all were on board you told them at gun point to lie flat on the bottom of the dingy. You took them to a place between Garim village and the Gogol bridge. There you forced the skipper and his passengers onto the beach where you tied them up with ropes before leaving with the outboard motor and dingy of Darius Ponda together with cash and other personal properties all to the combined valued of K 33, 300.00 all the property of Darius Ponda and others.
   
5. You did not have any lawful excuse for what you did. And your actions breached section 81 (1) (2) of the Criminal Code Act. Upon the tender of your depositions, it was confirmed that you had made very detailed admissions to Police in your record of interview conducted on the 15^th February 2016. You were an active participant in the crime. Your admissions in that record of interview were hand in hand with the eyewitnesses account of the offence committed upon them. And these were the accounts by Darius Ponda, Jerry Kelly, Betina Misob, Sakai Gawek, Amos Moli, Barang Ori, Elizah Tangi all confirming in all material particulars that they were on route to Madang on their dingy powered by 40 horsepower Yamaha outboard motor, when they were run down and set upon with all that were on them including what properties they had with the dingy and the outboard motor. This confirms that they were travelling on the sea. They were chased in their dingy by your dingy powered by 60 horsepower Yamaha outboard motor overpowered with the guns and weapons you and accomplices held. And from them were stolen their personal properties including cash. That evidence confirms your guilty plea and your conviction is firm in law following. Accordingly, you are convicted of the crime of piracy pursuant to section 81 (1) (2) of the Criminal Code Act.
   
6. In allocutus when you were asked whether you had anything to say, you stated; “The dingy and the motor with the K300.00 the police got it from me. I say sorry to them and gave it back to them. I ask for mercy on me. The person who planned is still outside and around.”
   
7. Counsel made application for a presentence and a means assessment report to be filed in accordance with the Probation Act. That was granted and the matter was adjourned to Thursday 07^th July 2022 for both reports to be filed. The presentence report has been filed now 12^th July 2022. It does not recommend probation. The prisoner was then a first offender aged 18 years old according to his record of interview. There is no other evidence to verify this fact.
   
8. In the way it was executed it was a very well-planned offence. And no doubt prisoner was in that planning as can be seen from his record of interview. But he shifts the blame to his co accused who are not before the court. The allegations facts to which he entered the plea to are set out above. That is the basis of the sentence that will be drawn against him. It is a crime of violence in this particular case the prisoner accompanied others who were armed with homemade guns and bush knives all dangerous weapons. His accompaniment of the group gave it numbers to be able to commit the crime. It is not a light matter to say that he simply followed them. He played a very important part in the piracy because his participation gave his accomplices numbers over and above to do what they did, to go in threaten and to steal the properties including the outboard motor and dingy. Had he not participated as he did, he would not be in possession of the outboard motor and dingy retrieved.
   
9. The immediate area of the piracy is in the open sea. Man is land bound and not of the sea or rivers like fish and all others that live within. He cannot survive if he is exposed or made to be in the sea or rivers. Because he will succumb to either his muscles and body getting tired and he will drown because that is what will happen if the lungs are filled with water. He cannot breathe with underwater. He will draw water into his lungs and drown. The outboard motor and the dingy are his survival at sea or on a river or mass of water as is the case here. His safety security is the dingy that he is on powered in this case by the 40-horsepower engine. Without that he is left to the current in the sea and the wind and weather. Therefore, in my view it is not a simple matter of one dingy chasing the other and committing the crime of piracy. Tying up the victims and leaving them at the Gogol bridge. Taking away the only means of transport in their discretion. It may have been that being on the dingy powered by the 40-horsepower outboard motor was their only transport to Madang. Many of them were intent to getting life’s supplies in Madang because where they lived was denied of what was available and offered in Madang. The actions of the Prisoner and Accomplices denied them that fact by the commission of the crime.
   
10. The dangers posed to the victims can be seen in Hagena v State [2017] PGSC 55; SC1659 (11 December 2017) eight persons were killed at sea in the course of a piracy but the convictions were for wilful murder. It was wilful murder committed in the course of an armed robbery at sea. Really it was piracy. All prisoners there were sentenced to the maximum sentence of the death penalty. That is how serious the action of the prisoner is viewed. There is really no escape from the crime of piracy, either the victim is caught by the pirates or the elements if as here the dingy and outboard motor are stolen and removed. Guns are lethal and dangerous weapons and have in many instances killed in the course of crime. It is even more lethal with homemade guns that do not have safety in the weapons as in the case of factory-made ones. The production are with anticipation that there will be resistance it is therefore well planned to time to execute with as little resistance and in the event of to have weapons ready as demonstrated here. And the role of the prisoner is important in this regard.
    
11. Lawlessness in this way drives business and economic activities to the brink of disaster. Development is chained if left unchecked when the country is now 42 years old going 43, it is important by the sentences imposed to put in bold that criminality and lawless has no place and must be stopped with strong deterrent denouncing and punitive sentences. And here that is what the court will do in its sentence.
    
12. Because the offence is also now getting more daring and prevalent. Society must be protected human life must be protected from harm. Prisoner contends that he did not benefit from the proceeds which are even more so of the victim who has not recovered any of the money stolen. It does not mitigate that he did not benefit, he might as well have got the whole sum stolen it is therefore of no significance in the determination of an appropriate sentence in his case.
    
13. In his favour is his early guilty plea made to Police in the record of interview 15^th February 2016 which he has maintained in court. It is overt of his intent to change and be a better person. In allocutus, He expressed remorse stating that the subject properties have been recovered by Police. Coupled with his credibility in the community depicted out in the presentence reports which I accept in his favour. But he is not recommended by the presentence for probation. No doubt because of the seriousness of the offence. But at the time that he committed the offence he was a first offender aged 18 years old. That will be accorded in his favour in the determination of the sentence upon him. He is now aged 24 years old with no record of any formal employment. Originally from Rai-Coast Madang, he is from Marakum village resident with his parents there. He is the sixth born in a family 10 siblings. He is a single man and left school at grade 7 at Jamad Primary School. He lives in the village and does not have any employment history. He sustains himself making gardens, selling betel nut and cocoa.
    
14. His role in the crime is set out above. And what the Supreme Said in Gimble v The State [1988-89] PNGLR 271 at 273 is applicable here. “The general rule is that all active participants in the crime shall be sentenced on the same basis The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.” That is applicable given the facts and circumstances here, which I apply in the determination of an appropriate sentence for the prisoner.
    
15. But each case must be determined and sentence passed based on its own facts and circumstances, Thress Kumbamong v The State (2008) SC 1017. In my view piracy is likened to robbery which is the observation that have been made in Hagena and also in State v Kevin [2011] PGNC 214; N4675 (18 November 2011). This was an armed robbery committed upon a boat with its passenger who were moored and the prisoners boarded on the pretext that they were passengers and security men. Then held up the passengers and made of with the properties and valuables. They pleaded guilty to charges of armed robbery. They were sentenced to 8 years in hard labour. The court in so passing likened it to a robbery of a dwelling house and imposed 8 years imprisonment. But specifically acknowledged that it was akin to piracy under section 81. The observation of the Court there in sentencing are relevant here and applicable. Because the outboard motor powered dingy that the victims were in is akin to their home. It sheltered them from the sea and the weather. It provided them the security against the elements and nature. By the intrusion that was committed by the Prisoner it was a serious invasion of privacy. And the observation of the Supreme Court are relevant in Public Prosecutor v Don Hale [1998] SC564 because 10 years imprisonment signifies that a man’s home must be protected. The dingy and outboard that is depended on by the victims and any others similar must be protected from criminals as is the case with the prisoner from piracy.
    
16. In making this assessment I am conscious of the case of Anis v The State [2000] PGSC 12 SC642 (25 May 2000) where the sentence of 10 years was reduced upon first offenders who had robbed a factory. In reducing the court held that the youthfulness of the offenders were not given due consideration and so reduced to 5 years. I take due consideration and adjudge that the prisoner was 18 years old at the time of the piracy, 24 years old now at sentence today. The seriousness of the offence by its prevalence warrants that sentence imposed must take account of the changing times and circumstances.
    
17. I am mindful that the properties have been recovered. And as in State v Malo [2006] PGNC 231; N4520 (19 December 2006) a store was robbed of K165,924.17 with use of guns and firearms a vehicle was also stolen in that robbery. Police pursued and apprehended the prisoner who was slashed with a knife when apprehended. He pleaded guilty and was sentenced to 8 years IHL. The difference is that it was an armed robbery and committed on land. This offence is piracy committed at sea. It is a lot more serious because the dingy and outboard are the source of survival for the victims, without which they will succumb to the elements and the sea. They will perish stemming from the actions of the prisoner. So, whether the properties are recovered or not is insignificant compared. And comparably the way the offence is committed is of material relevance in the determination of the sentence which view is consistent Marase v The State [1994] PNGLR 415 where the appeal was dismissed and the 19 and half year IHL was confirmed for rape and robbery.
    
18. In my view that is applicable here considering Meaoa v The State [1996] PNGLR 280. The facts in that case are relevant and applicable here in the determination of an appropriate sentence. There the court observed:
    

“ The evidence shows that the appellant was the operator of a dinghy travelling from Port Moresby to Lavare in the Gulf Province on 24th September 1994. Among others on board were his co-accused; the prosecutrix then aged about 12 years and members of her village. The prosecutrix and her fellow villagers were from the inland mountainous area, they could not swim. The appellant was not the usual operator of the boat; this led to some initial confusion when the matter was reported to the police as they did not know the appellant’s name and the normal operator’s name was mistakenly entered. That confusion was resolved at the trial and has never formed part of the defence case either on trial or before us.

The learned trial judge considered that there was some suggestion that the appellant was under the influence of liquor or drugs whilst in control of the boat. The boat capsized, there is some suggestion this was due to his condition coupled with high waves as the boat approached the mouth of the Lakikamu river. The prosecutrix and her fellow villagers could not swim and clung to the upturned boat. The appellant helped the prosecutrix to get on shore. At that point the prosecutrix was the only female passenger. There is no evidence to suggest that the appellant returned to assist other passengers either from his evidence or the State evidence.

The prosecutrix’s evidence shows that the appellant “grabbed me and swam with me to the sand bank than he said something like this” if you let go of me I will kill you.” Then he pushed me down on the sand and he had intercourse with me ... I felt pain”. As she struggled to get up and replace her clothes the co-accused came and also raped her followed by the third man. She describes the pain and injury, she was left naked on the ground and a relative, who had got on shore, covered her with a coat. They remained on the sand bank until the next day when they made their way to Kerema.”

19. Consistent here is the fact that it is a serious and violent offence which must be sternly punished. It is committed on the sea where men is vulnerable to perish either by the weapons held by the assailants as here or by nature, the sea and the elements surrounding. And the sentence is for piracy not armed robbery. Both are separate offences known to the law. And which will reflect that this is a guilty plea together with all that I have set out above.
    
20. The prevalence of the offence warrants stern deterrent and punitive sentence to be imposed. The fair and proportionate sentence given is 13 years IHL which I so impose upon the prisoner. The time that you have spent in custody will be deducted forthwith. The remaining time will be served in jail.
    

Orders Accordingly

________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant