DC135

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 301 OF 2003

BETWEEN

BATA MANO
Informant

AND

STEVEN NIKENGU GEEJI
Defendant

Vanimo

Malcolm Samala
9 February 2004

Judgment on Sentence

Criminal Law - Wilful damage of property, stone thrown on vehicle windscreen, Guilty Plea, Sentencing, Consideration given to Section 47 (3) of SOA for compensation, Discretion in awarding compensation, Adultery by custom form basis of Mitigation in any consideration in assessing penalty and compensation.

Plea Matter - The defendant pleaded guilty to the charge for having wilfully damaged property namely the vehicle windscreen by throwing stone at it contravening Section 47 (2) of the Summary Offences Act Ch. No. 264.

No case cited

Counsel
First Constable Douglas Setepano for the Police
Defendant in person Unrepresented

09th February 2004

Malcolm Samala: The accused pleaded guilty to the charge that on the 15th November 2003 he did damage to the windscreen of a vehicle Registration No: LAO 380 owned by UMW Company at Waromo Village, Vanimo West Coast.

The Facts of the Offence

It is alleged on the evening of 15th November, between 6:00 pm at Waromo Village, Vanimo West Coast the defendant was at the roadside and upon sighting the police informants - the male informant an employee of UMW Company and the female informant who is defendants own wife employee of Coca Cola Company. He confronted them in the parked vehicle with a stone and hit the vehicles left windscreen causing damage to it.

The Evidence

The main evidence, which formed the basis of conviction, is the admission of the defendant in the commission of the offence. I am satisfied over the guilt of the defendant beyond reasonable doubt in his admission. The admission was the same in the defendant's out of Court written defence statements of himself and two independent witnesses tendered on consent.

The defendant alleges that it is a customary insult on his person upon seeing his wife the female occupant in the said vehicle driven by the male occupant who is an employee of UMW Company a Branch Manager in Vanimo when both were drunk and that both previously have had adultery proceedings and orders made against them. This was confirmed by Registry Records of DIC 138/2003 action for adultery Joyce Kembu v Martha Geeji Nikengu and DIC 185/2003 action for adultery Steven Geeji Nikengu v Michael Kembu & Martha Geeji of which compensation orders were respectively made.

The defendant stated that the past conduct of the pair in the vehicle and their presence being together drunk at that material time compelled him to act the way he did as he was angry and deprived of the power of self-control. Adultery by parties is the contributing factor forcing him to damage the vehicle.

Legally it is well established in this jurisdiction that the defence of provocation only exist in assault cases as stipulated under ss 266 and 267 of the Criminal Code and Section 6 of the Summary Offences Act. There is in fact no legal or statutory basis for provocation in itself a defence in wilful damage. 

Mitigation

In the instant case there was evidence in the brief facts that the vehicle was on a drop-off run to Waromo Village. The damage was caused to the vehicle simply because the pair using the vehicle at the material time was adulterous pair. It was so unfortunate that the vehicle belongs to UMW Company but used by the male occupant who is its employee.

I am of the view that it is perfectly proper for this Court to take adultery as the mitigating factor being that the defendant naturally reacted in seeing his very wife associating with the employee of UMW in which both have been implicated of adultery. Further factor in defendants favour is his guilty plea.

Section 16 of the Underlying Law Act stipulates custom is a question of law and not fact. As such, in view of the discretion I have as the decider of facts and law and applying the law to the facts in the circumstances of the offence, I am of the view that it is perfectly proper for this Court to consider serious implications custom of PNG has on matrimonial offence such as adultery. Adultery by custom can lead to murder, fights and destruction of property, such as, in this case.

And so, in view of the discretion I have in award of compensation pursuant to Section 47 (3) of the S.D.A, custom would in this case form the basis of mitigation in favour of the defendant over penalty and compensation the Court intent to make relying on Section 4 (e) of the Customs Recognition Act which states in Criminal cases custom can be taken into account for purposes of mitigation in determining the penalty against the guilty party.

Sentence

The penalty for this offence carries a fine not exceeding K400.00 or imprisonment for a term not exceeding two years.

In considering sentence I take due regard over cost of the vehicles windscreen totalling K1, 268.40. Although the cost is substantial, the damage was caused simply because of
the misconduct of the vehicles occupants and so, it is only considered proper that the occupants, the users of the vehicle at that time should also be made to see that they are also equally at fault as the damage was the direct result of their misbehaviours as its not nobody's business.

Having considered all these factors, I am of the view that a fine of K100.00 with default imprisonment term of three months be appropriate. In compensation I am also of the view that the sum of K400.00 with default imprisonment term of three months be also appropriate in the circumstances of the instant case.

I therefore ordered that the defendant be fined the sum of K100.00 to be paid forthwith in default to be sentenced to three months imprisonment in hard labour at CIS Vanimo. I further ordered that the defendant to pay the sum of K400.00 towards the costs of repair as compensation within eight weeks in default to be imprisoned for a period of three months in hard labour at CIS Vanimo. Sentence be served concurrently and all monies in compensation be paid to Vanimo District Court Registry for the UMW Company to collect.

Douglas Setepano: Complainant
In Person: Defendant