[national court of justice]

the state

v

martin sahin terea

buka: cannings j

15-16 & 22 March 2005

Criminal law – Indictable offence – Criminal Code, Division VI.2, Injuries to Property – Section 444, malicious injuries in general: punishment in special cases – Sentence on plea of guilty – Offender a public servant – Arrived at workplace, drunk, armed with screwdriver – Damaged office equipment and fittings with screwdriver – No weapons used or aggravated physical violence against other persons in office – No physical injury – Isolated incident – Offender did not surrender – Cooperated with police – No trouble caused since the incident – Nothing tangible done towards repairing his wrong – Mitigating claims made in allocutus that may be significant mitigating factors for sentence – Claims not addressed in prosecutor's summary of facts to which accused pleaded guilty – Claims not admitted by prosecution – Prosecution permitted to call rebuttal evidence – Partial acceptance of claims in allocutus – Determination of maximum penalty – Expression of remorse – Not a youthful offender – Educated person – Starting point for head sentence – Identification of relevant considerations – Application of relevant considerations – Whether appropriate to suspend whole or part of sentence – Sentence of 1 year, all of which shall be suspended on satisfaction of prescribed conditions.

Facts

The accused pleaded guilty to a charge of willful and unlawful damage to property under s444(1) of the Criminal Code. The accused was a public servant working with the Bougainville Provincial Administration as a graphic artist. He arrived at a work place drunk, armed with a screwdriver which he used to damage office equipment and fittings. 

Held

1.	This was not a case where any of the prescribed circumstances prevailed, so the maximum penalty is that set out in Section 444(1): two years. 

2.	The aggravating factors are, people of Bougainville were directly affected by his actions; causing severe breach of the peace; causing threat; causing risk of injury; failure to give himself up; failed to do anything tangible towards repairing his wrong; and he was not a youthful offender.

3.	The mitigating factors are, the relatively low value of the property damaged; that he acted alone; it was an isolated incident; cooperated with the police in their investigations; has not caused further trouble since the incident; has pleaded guilty; has expressed remorse; and being a first offender.

4.	Whenever a person is punished for a crime of non-physical violence, a Judge should, for the purposes of imposing an effective punishment that will rehabilitate the offender, explore all options before taking what might be regarded as the drastic step of imposing a prison sentence; Doreen Liprin v The State (2001) SC673 (Amet CJ, Kapi DCJ, Los J

5.	Sentenced to one year imprisonment in hard labour all of which is suspended subject to compliance with prescribed conditions.

Papua New Guinea cases cited

Doreen Liprin v The State (2001) SC673
The State v Aaron Lahu (2005) N2798
The State v Eric Vele (2002) N2252

Counsel

L Rangan for the State
L Siminji for the accused

22 March 2005

Cannings j. This is a decision on the sentence for a man who pleaded guilty to the offence of wilful and unlawful damage to property.

Background 

Incident

The incident giving rise to the charge took place at Buka town, Bougainville, on the morning of 14 May 2001. It was alleged that the accused went to his office in the Bougainville Provincial Administration armed with a screwdriver and deliberately damaged office equipment and fittings.

Indictment
On 15 March 2005 he was brought before the National Court and faced the following indictment:

Martin Sahin Terea of Lontis, Buka, Bougainville, stands charged that he … on the 14th day of May 2001 at Buka town … wilfully and unlawfully damaged a photocopying machine, one printing machine, an air-conditioning machine, the main door and reception counter of the office of the Division of Information, Culture and Tourism, Bougainville Provinical Administration, the property of the Bougainville Provincial Administration.

The indictment was presented under s 444(1) of the Criminal Code.

FACTS 

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

The accused works with the Bougainville Provincial Administration as a graphic artist. He works in the Division of Information, Culture and Tourism. About 9.30 am on Monday 14 May 2001 he went to his office, evidently angry with his superiors about something. He was carrying a screwdriver. He used the top of the screwdriver to pierce holes in the photocopier, a printer and the air-conditioning unit and in the main door and the reception counter. He intended to cause that damage. There was no lawful justification or excuse for what he did. 

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the offender.

ANTECEDENTS

The offender has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows. 

I stand here for being honest. I was frustrated because of my honesty. I knew there were suspicious things going on in the office. It was some form of corruption. It had a big impact on the office I worked in. Firstly the machines, computers and printers were being used to make money to go into a trust account that the office had. The purpose of the trust account was to defray the costs of newsletters and campaign materials etc. It was known in the office that money we made for the trust account was being used by my superiors for travelling allowances, airline tickets and accommodation out of the province. This was not proper expenditure. The second thing that contributed to my frustration was that some officers were using one of the printing machines to make money for themselves. These were private jobs. The money was not put into the trust account but into their own pockets. I mentioned these things to my superior, the Assistant Secretary. But things never improved. I suggested to my superior in three staff meetings that the officers should reimburse funds they had used to travel and for other unauthorised purposes. Another source of frustration was that my privileges to commute on the administration bus were revoked. This had a great effect on my job. It affected my family and me considerably. It meant I had to travel on a PMV to get to and from work. To travel from my village to town is a cost of K10.00. So every day I travelled to and from work I had to pay my own transport of K20.00. From my salary I was left with K97.00 for the family to live on. This made it impractical for me to work effectively. It forced me to come to work only a couple of days each week. This led to my suspension for two months. This was unfair and it really affected me. I have also disputed the cost of the damage I am alleged to have caused from the very beginning. They have calculated the cost at more than K12,000.00, based on the replacement value of the equipment. But much of the equipment was in a poor state of repair or had no economic value. This is my first time to do such a thing and my first time to appear before the court. I honestly apologise to the State for acting in such a way. If I am to be convicted I trust that, given what I have said, I will help the court make a favourable decision. I am still employed as a graphic artist and I want to continue to be employed. As to the items I damaged, the air-conditioning unit was not the property of the State. It came from Arawa in 1991. It was actually the property of Bougainville Copper Limited. Considering its depreciation and that it was not the property of the State, it was not worth anything to the Administration. In any event it has been repaired. It has been tested OK and it is back in the office. It cost K506.00 to repair but only K219.00 of that related to the damage I caused. The rest would be labour. So I do not agree with the cost of the damage to the air-conditioning, which others have estimated to be K1,700.00. As for the two printers, the printer I actually damaged was purchased in 1995. It is Macintosh compatible. It was only used for three years. After that it was incompatible and of no use. Since 1998 it has sat idle in my office. Microsoft has been dominating the market and the printer is practically useless. The photocopier was given to the office by AusAID. The only part I damaged was the display screen. The remaining items I damaged – the door and the counter – suffered very, very minimal damage. The estimates provided are for replacement of the door and the counter, ie brand new items. That is unfair.

DEALING WITH CLAIMS IN ALLOCUTUS THAT WERE NOT IN PROSECUTOR'S SUMMARY

Claims in mitigation

Before I heard submissions from counsel I pointed out that the offender had made claims in his allocutus which, if accepted, may be significant mitigating factors to take into account on sentence. He gave reasons for his frustration, alleged that there was corrupt conduct happening in the office and challenged the costs on the damages that he caused.

How should the court deal with those claims. Ignore them? Accept them at face value? Or give the prosecution the chance to rebut them? In a recent Kimbe case a similar issue arose in an armed robbery case. A man pleaded guilty but in his allocutus made a number of claims (that he was only involved in the robbery by accident and he played only a small role in the gang that robbed a house and store and he got little out of it) which, if accepted, would mitigate the sentence (The State v Aaron Lahu (2005) N2798, National Court, Cannings J). As I could find no rule of law appropriate I formulated a rule as part of the underlying law. It applies when a person makes a claim in their allocutus that might be a mitigating factor, when the claim has not been addressed in the prosecutor's summary of facts, to which the person has pleaded guilty. The rule is:

·	The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.

·	Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.

·	If the judge detects any significant mitigating matters in the allocutus that were not put to the accused in the prosecutor's summary of facts, the judge should ascertain whether there is agreement between the prosecution and the defence on those matters.

·	If there is agreement, the judge should work on the basis of what has been agreed to unless the claims made in the allocutus are so beyond the bounds of possibility as to be unbelievable.

·	If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.

·	If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.

Application of rule

I applied the above rule to the present case. The prosecution did not agree with the claims made in the offender's allocutus. Therefore I allowed the prosecution to present rebuttal evidence. 

Rebuttal evidence

The offender's divisional head, Mr Simon Garana was called to the witness box. He is the Assistant Secretary, Information and Communication, within the Bougainville Administration. He is answerable to the Provincial Administrator, Mr Peter Tsiamalili. The offender is his officer. He remembers well the incident of 14 May 2001. Mr Rangan asked for the witness's comments on the matters raised in the offender's allocutus. 

Mr Garana said that as boss of the division he is not aware of any corrupt activities in his office. If these things were going on, the officer should have discussed the matter with him. But he has not done so. Mr Garana has not heard of any trust account money being applied to unauthorised purposes. He has never heard of officers using office equipment for themselves. He has never been told about these problems. He is aware that there was some problems about the administration bus. But the bus is not under his control. The privileges of some officers were revoked because there was apparently some misbehaviour on the bus. He is not aware of the real problems underlying the difficulties Martin Terea has coming to work. As to the cost of the damage, he organised quotes which showed it was more than K12,000.00. The equipment was in excellent condition. The printer has been functioning all the time. The photocopying machine was purchased courtesy of AusAID. Mr Garana said that he travelled to and from Port Moresby to get this piece of machinery operating. It is a heavy-duty digital photocopier. It was only one year old. It is true that the offender only damaged the control panel. But it is the main problem with the machine. It had to be packed up and sent to PNG Printing. The door and the counter that the offender damaged were in very good condition and the cost of replacement is reasonable. At the time of the incident the offender was very drunk. He cannot recall the offender raising in any staff meetings the problems he is now talking about.

In cross-examination Mr Garana said that the offender has a diploma of creative arts. Mr Garana and the offender are the only qualified people in the office. He repeated that he was not aware of the frustrations the offender brought out on 14 May 2001. He is not aware of any suggestions that the offender had made for improving work practices in the office. The trust account is his responsibility. He is not aware of any problems with its management or control. He did not get a valuer or technician to value the damage to the property. He provided quotes to the police for repair of the items. 

Conclusion

Mr Garana's evidence varied substantially from that of the offender. According to him, there are no corrupt or improper practices going on in the Division of Information; the office equipment is being used properly; no allegations have ever been put to him by the offender; and the equipment that was damaged was very valuable.

In these circumstances, I am not prepared to make a finding either way on all the matters raised in the offender's allocutus. Clearly something is drastically wrong in that office. The working environment is not conducive to productive output. But it is not the role of the court in this case to solve the industrial problems of the Bougainville Administration or to address allegations of corruption. I will, however, make a finding of fact regarding the value of the damage caused by the offender. I will, consistently with the rule outlined above, give him the benefit of a reasonable doubt on that issue. I conclude that the value of the equipment and fittings he damaged was K2,000.00.

SUBMISSIONS BY DEFENCE COUNSEL

Personal particulars

The offender is married with three children, aged 14, 8 and 7. He was educated to Grade 10 at Rigu High School and for Grades 11 and 12 at Kerevat National High School. He studied at the National Arts School from 1985 to 1988. He has worked for the Bougainville Administration since 1988. He is still employed there.

Mitigating factors

Mr Siminji referred to a number of mitigating factors. The offender has pleaded guilty, saving the trouble and expense of a trial. He admitted to the police at the outset what he had done. He accepts responsibility for his actions. He is a first offender. It was his frustration with various things happening in the office which compelled him to react as he did. He felt he was not been listened to. There was little communication between the offender and his superior. He has waited for more than three years since he was committed to stand trial. That is punishment in itself. Given all the circumstances a non-custodial sentence is appropriate.

SUBMISSIONS BY THE STATE

Mr Rangan offered no assistance to the court.

RELEVANT LAW

Section 444

Section 444(1) (malicious injuries in general: punishment in special cases) of the Criminal Code states:
A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated, is a misdemeanour.

Penalty: If no other punishment is provided by this section—imprisonment for a term not exceeding two years.

There are nine other subsections in s444, which prescribe various aggravating circumstances. For example:

·	if an offence under s444(1) is committed by night, the maximum penalty is three years;
·	if the property damaged was a document kept in a public office, the maximum penalty is seven years;
·	if the property damaged was a dwelling house and the injury to the property was caused by an explosion and a person's life was endangered, the maximum penalty is life imprisonment.

This was not a case where any of the prescribed circumstances prevailed, so the maximum penalty is that set out in s444(1): two years. 

Discretion 

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of s19 of the Criminal Code. For example:

·	a shorter term of imprisonment may be imposed (s19(1)(a)); or
·	a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the offender can be imprisoned until the fine is paid (s 19(1)(b), 19(1)(c)); or
·	the offender may be given a 'good behaviour bond' (s19(1)(d)); or 
·	the offender can be discharged and the sentence postponed 
(s 19(1)(f)); or
·	the court can suspend all or any portion of the sentence imposed, subject to conditions (s 19(6)).

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process: 

·	step 1: what is the appropriate head sentence, in terms of years? 
·	step 2: should all or part of the sentence be suspended? 
·	step 3: if all or part of the sentence is suspended, what conditions should be imposed? 

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE? 

Approach

In setting an appropriate head sentence I will take this approach:

·	first, I will identify an appropriate starting point or reference point;
·	secondly, I will set out the considerations that should be taken into account in deciding what sentence to impose; and
·	thirdly, I will apply those considerations to the facts of the present case.

Starting point

Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point – a sentence in a previous case – against which the case being dealt with can be assessed. The judge assesses whether the case being dealt with is more, or less, serious than the starting point case. If it is, to what extent is it more serious or less serious?

In the present case I have been unable to locate a suitable precedent, so I will use the maximum penalty of two years as the starting point.

Relevant considerations

I will now set out the things I consider should be taken into account when determining whether to increase or decrease the sentence or leave it at the starting point.

1	Did the offender cause damage of a relatively low value?
2	Was there no person or class of persons directly affected by the damage or destruction of the property?
3	Did the offender not breach the peace or cause alarm or affront to other people when the property was damaged or 	destroyed? 
4	Was there only one offender?
5	Did the offender not use a threatening weapon and not threaten physical violence against any person?
6	Was there no risk of injury to any person as a result of the offender's actions? 
7	Was it an isolated incident?
8	Did the offender give himself up after the incident?
9	Did the offender cooperate with the police in their investigations?
10	Has the offender done anything tangible towards repairing 	his wrong, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly 	apologising for what he did?
11	Has the offender not caused further trouble since the incident?
12	Has the offender pleaded guilty?
13	Has the offender genuinely expressed remorse?
14	Is this his first offence?
15	Can the offender be regarded as a youthful offender?
16	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?

Rationale

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be at or near the starting point.

However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be 'strongly mitigating'. Others may be 'mildly mitigating'. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

Application of considerations

I apply the above considerations as follows:

1	Yes the property damaged was of a relatively low value. I have given the benefit of the doubt to the offender by finding that he caused only K2,000.00 worth of damage to the property of the Bougainville Provinical Administration.

2	No the people of Bougainville were directly affected by his actions as the damage to the property interfered with the smooth running of the Division of Information, Culture and Tourism.

3	No the offender was guilty of a severe breach of the peace. It is ironic that this incident occurred in 2001 when the Bougainville peace process was reaching its zenith. It must have been very distressing and frightening for the offender's colleagues in the office to be confronted with this sort of behaviour. 

4	Yes the offender acted alone.

5	No although the offender did not threaten any person with physical violence, he was carrying a large screwdriver and any person seeing him would have felt alarmed. 

6	No there was a risk of injury as long as he was drunk, and brandishing the screwdriver. 

7	Yes it was an isolated incident.

8	No the offender did not give himself up after the incident.

9	Yes the offender cooperated with the police in their investigations.

10	No the offender has not done anything tangible towards repairing his wrong. 

11	Yes he has not caused further trouble since the incident.

12	Yes he has pleaded guilty.

13	Yes the offender has expressed remorse. He appreciates that he did the wrong thing and has said that he is sorry about what happened, though he maintains that there was an underlying cause for his actions, ie his frustrations with what was happening in the office.

14	Yes this is his first offence.

15	No the offender cannot be regarded as a youthful offender.

16	No there are no other circumstances of the incident or the offender that warrant mitigation of the head sentence. Even if all his claims about the bad things happening in the office are accepted, it was incumbent on him to find a more mature and peaceful way to vent his frustrations. 

Conclusion

I have weighed all the above considerations carefully and fix a head sentence of one year imprisonment.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED? 

Sentencing trends

In making this decision I have been guided by the Supreme Court's decision in Doreen Liprin v The State (2001) SC673 (Amet CJ, Kapi DCJ, Los J). It is a leading case which examines the conflicting interests to be balanced whenever a person is punished for a crime of non-physical violence. A Judge should, for the purposes of imposing an effective punishment that will rehabilitate the offender, explore all options before taking what might be regarded as the drastic step of imposing a prison sentence. 

I have decided to regard the present case as a 'non-violent' case as nobody was injured. In categorising the case in that way I consider I am giving a considerable benefit of the doubt to the offender. I have already found that he did put people at risk and he must surely have frightened anyone near what happened. Ultimately, however, I am persuaded by the fact that though he was drunk he had enough sense of judgment not to harm any person physically.

Given that the case is categorised as 'non-violent' I have to take account of the trend, exemplified by cases such as Liprin, against sending offenders to gaol for such offences. A prison sentence costs the State money and exposes the offender to what can be not a conducive environment for rehabilitation. It does not involve the community very much in the sentencing process, compared with the direct community involvement that happens when, for example, an offender is obliged to do community work as part of his or her punishment.

Kandakasi J stated in The State v Eric Vele (2002) N2252, National Court:

It might be argued that such an approach to criminal sentencing might let offenders off the hook or that they might be made to avoid the full weight of their wrongs by reason of it being shared. The argument might be extended to say that … offenders might force their family or communities to bear the penalty and they themselves avoid it. The simple response to that is, prior to Independence and even before that, the coming of the white man our people lived and continue to live in their respective societies without prisons and a police force to maintain law and order. Collective community or family responsibility prevailed. The situation is still the same throughout the country today. Even at the international scene, though not strictly in relation to the subject under discussion, countries are desperately trying to form into bigger unions or communities because of the strength or the force collective responsibility brings as opposed to working alone. The chances of success at the community level are far greater than going through the prison system, because it becomes personalised as opposed to an imposed system and people just doing a job under the current criminal law justice system. 

Only an effective sentence can bring about a real achievement of the aims or purposes of criminal sentencing. It is now well accepted that an offender may be better reformed through community participation. As I already stated, my previous community-based sentence orders are doing well and were having a positive impact on the offenders. When placed with such information, it is far better to get the community involved than not, if to do so will keep reformed offenders whilst at the same time make them pay for their wrongs by rendering free service to the community rather than become a strain in the public purse. The onus is on a sentencing judge to devise a sentence that will meet the interests of society in punishing offenders and at the same time the interest of the offender to be treated fairly and to be given a chance to reform and become a better law-abiding citizen.

Discretion

I will therefore suspend the sentence in this case in light of the recent trend towards imposition of non-custodial sentences in non-violent crime cases. I have considered whether I should suspend all but a part of the sentence so that the offender should spend some time in prison. But I have ultimately elected not to exercise that discretion. There is at the moment no proper correctional facility on Bougainville. Convicted prisoners and remandees are being detained at the Buka Police Lock-up. I inspected it last week and it is extremely overcrowded. 

The whole of the sentence will therefore be suspended, subject to certain conditions.

STEP 3 - WHAT CONDITIONS SHOULD BE IMPOSED? 

The seriousness of the offence requires the imposition of strict conditions, as follows:

1	Immediately after the handing down of this decision, the offender, Martin Sahin Terea, shall meet with and attend upon the Provincial Welfare Officer to negotiate a detailed plan of action for the service of his period of probation, which will be one year. This plan must include at least six hours community work for each week of the probation period, eg providing cleaning services at Buka Hospital. This will be unpaid and must be done outside the offender's normal working hours. The plan of action shall nominate a responsible person to verify that work has been done. 

2	The Provincial Welfare Officer shall within one month after today file that detailed plan of action with the Clerk of the Court in Buka.

3	The Clerk of the Court shall then forward copies of that plan of action to the presiding Judge and to the lawyers involved in this case.

4	The presiding Judge shall consider the detailed plan of action then notify the Provincial Welfare Officer and the lawyers involved in this case whether that plan of action is acceptable. That will be done within 14 days after receiving it. If it is not acceptable to the Court, then the prison sentence will crystallise, which means that the offender will have to go to prison.

5	There shall be a probation report submitted by the Provincial Welfare Officer to the National Court every three months after today.

6	The offender must pay the sum of K2,000.00 to the Bougainville Provincial Administration as compensation for the damage that he wrought and all of this sum must be paid within 6 months after the date of this decision. Failure to adhere to this condition will result in the imprisonment of Martin Sahin Terea for the balance of the term of imprisonment.

7	The offender shall refrain from consuming alcohol for the whole of the period of probation.

8	The offender shall not leave Papua New Guinea without the leave of the National Court. If there is to be an application for leave it shall be submitted through the Provincial Welfare Officer.

SENTENCE

The Court makes the following order:

1	Martin Sahin Terea, having been convicted of the crime of wilful and unlawful damage to property, is sentenced to one year imprisonment in hard labour, all of which is suspended subject to compliance with eight prescribed conditions.

2 	For the avoidance of doubt there shall be deducted from the term of imprisonment any period in custody that the offender has already spent in relation to this offence.

Sentenced accordingly.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.