DC777

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
IN IT’S GRADE FIVE JURISDICTION]

CCA 212-213 of 2007

BETWEEN

POLICE
Informant

AND

POLAPOI CHOKAL
First Defendant

DEBOU MAIAH
Second Defendant

Lorengau: G. Madu, PM

2007: November 20

CRIMINAL - Maliciously damaging properties - Plea sentence - Criminal Code s 444 (1) Chapter 262

CRIMINAL  - Sentence - Matter for consideration - Aggravating factors given prominence - Sentence suspended - Compensation order under s5 of Criminal Code (compensation) Act with time frame. 

Cases Cited

1. The State -v- Frank Kagai [1987] PNGLR 320
2. John Elipa Kalabus -v- The State [1988] PNGLR 193

Counsel

For the Prosecution - Sergeant Lawrence Senais, Lorengau Police Station 
For the Defendants - In persons

20 November 2007

G Madu, PM:The two (2) accused pleaded guilty to maliciously damaging a school teacher’s house.

1.	The accused Polapoi Chokal and Debou Maiah were together with the other three (3) accomplice namely Matawai Suluan, Selan Polapoi and or Manoi Kumalau at Pere Primary School area on 12 of May 2007 between 8.00pm and 9.00pm on Saturday.

2.	Accused Debou Maiah went to Mr Manoi Chawan’s house to see a female namely Nialin Kiapin but she refused to see the accused. The argument broke out between the accused and the teacher. The accused then swore at the teacher. The other accused Polapoi Chokal ran and bumped the female down whilst the other accomplice Matawai Suluan ran towards the teacher and tried to put up a fight.

3.	The teacher in retaliation fought with the said accomplice and during that fight the teacher’s thumb was bitten. Realising the danger that he might be seriously injured, he ran away with the female. The two (2) accused and their three (3) other accomplice realising that the teacher had escaped, went to the teacher’s house and took turn in breaking the fibro walls, fly wires, lourve blades, door and other things. The damage was estimated at K869.90.

4.	The Court noted from the Record of Interview conducted between the accused and the Investigator Senior Constable Margaret Kumasi and Corroborator Sergeant Gabriel Loan and Chief Sergeant Robert Pondikou on 25 of June 2007 and 8 of August 2007 respectively, the accused Polapoi Chokal said the teacher is a married man but goes around with the girlfriend of one of the youth namely Debou Maiah. He went to get his (Debou’s) girlfriend but the teacher argued and tried to have a fight. The other accused Debou Maiah said the teacher took my girlfriend.

5.	The house is a permanent building which belongs to the Pere Primary School and come under the care of the Pere Primary School Board of Management. The accused used their hands however by looking at the photograph of the extent of damage. I would assume that some object or implement could have been used as well. The damages that was caused included broken walls, lourve blades, fly wire and doors and was estimated at K867.90.

6.	On allocutus, the both accused said that this was their first time to appear in Court and don’t normally do this. They appeal to the Court to have mercy on them. 

7.	From evidence, it is not clear whether you used an object or implemented to break parts of the building but one thing that is clear is that you both supported and encouraged each other to damage the house. Your other three (3) accomplice presence was a moral boosting for you to damage the house.

8.	The task of sentencing a person to imprisonment is a difficult task because it involves weighing the aggravating and mitigating factors.

9.	The protection of the community must be considered first and fore most, judicial consideration on the prisoner, the prisoner’s circumstances and background, his future opportunities, the demeanour, remorse and precipitating factor causing the offence are relevant considerations. I am mindful of the principles of sentencing discussion in The State -v- Frank Kangai [1987] PNGLR 320.

10.	On the other hand, the Court cannot and will not rule out the seriousness of the crime you have committed. You have embarked on a life in engaging in the commotion of a serious crime. Public facilities such as schools and hospitals/clinics must not be subject to destruction, sabotaging by action of hooligan who have no regard for such institution who are providing valuable service to the future leaders. 

11.	The actions do not offer anything good but does make the life miserable for the law abiding majority. Gang of young youths who do go about destroying properties of individuals and government instrumetalities, private business do very much intrude into their privacy for their own self-gratification are undesirablements of the community. You both do fail and have lowered yourself into that category.

12.	You failed to realize and see that what you did would very much deny your young brothers and sisters and even your children who would be enrolled at the school. It clearly showed that it was not an accident, you meant to do the damage which I consider is intentional act when the female refused to response positive to your request. You could not hold your temper. This Court also took into account that you pleaded guilty to the change. You have save the Courts time to run a trial which could have cost State a lot of money.

13.	I consider that where crime committed is less serious an accused is entitled to credit for plea of guilty John Elipa Kalabus -v- The State [1988] PNGLR 193 at 197.

14.	You both had the reason to foresee that such damage was likely to be done and so you took that risk. You knew what would be the consequences of your action held in Pukari- Flabu -v- Hambukon Saia [1965-1966] PNGLR 348.

15.	Having considered the mitigating and aggravating factors, I consider that the aggravating facts outweigh the mitigating factors 

16.	I sentence the both accused to six (6) months I.H.L. Thirty-three (33) days spent in custody is deducted from the head sentence and both accused are to serve five (5) months eight (8) days each and severally.

17.	I suspend the five (5) months eight (8) days on the condition that both accused pay the sum of K867.90 as compensation to the Chairman Pere Primary School Board of Management within a period of thirty (30) days from the date of this order.

18.	Further ordered that both accused to do community work of thirty (30) days to be suspended by Ward Member for Pere Village.

For the Prosecution - Sergeant Lawrence Senais, Lorengau Police Station 
For the Defendants - In Persons