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State v Mani [2004] PGNC 158; N2623 (21 June 2004)

N2623

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 500 of 2004

THE STATE

v.

DAVID DANNY MANI

Kimbe; Sevua, J
2004: 3rd & 21st June

CRIMINAL LAW – Sentence – Stealing – Threats – Aggravating and Mitigating factors – Consideration for probation – Prisoner has attitude problem and no fixed address – Not suitable for probation

Counsel:
F. Popeu for State
O. Oiveka for Prisoner

21st June 2004

SEVUA, J: The prisoner pleaded guilty to a charge of stealing and sentence was reserved to 18th June then today to consider a Pre Sentence Report, which I now have and the Court is grateful to Ms. .Elizabeth Passingan, the Community Correction & Rehabilitation Officer in Kimbe for a report well done.

The accused was indicted with one count of stealing contrary to s. 372 (1) & (5) (a) of the Criminal Code, although he was committed for armed robbery. He admitted the following facts. On 19th February 2004, at Morokea Village Oil Palm settlement near Kimbe, he met the three women victims collecting greens in his father’s palm oil block. At that time he had a hook knife and called out to the three women and demanded that they pay for the greens they were collecting. The three women victims then gave him K3.00, however he was not satisfied with that so he got their bilums and stole another K9.00.

The prisoner said that he is a first offender and had made it easy for police and pleaded guilty in this Court so he asked for a good behaviour bond or a release on probation. His counsel submitted that the Court should accept the prisoner’s plea of guilty. He is single and comes form Soli village, Yangoru, East Sepik Province. He previously resided at Dagi near Kimbe. He was educated up to Grade 8 only. The amount of money stolen is not substantial and the prisoner has spent about 4 months in custody Counsel asked that these be taken into account on sentence.

Because the prisoner asked for a good behaviour bond or probation, I ordered a Pre Sentence Report which I have alluded to. Having read the report I must commend Ms Passingan for a thorough and helpful report. It places the prisoner in his rightful perspective, and it helps this Court in its deliberation on penalty. Simply, in my view, the prisoner is not suitable for probation. He has attitude problem and had spent more time with other people than the foster parents who reared him and tried their best to make him a good citizen. Unfortunately, the efforts by this couple have not been appreciated. The prisoner complains of not being paid enough remuneration for the work he does, but fails to appreciate that the block is only a small one which cannot earn a big income. In any event, his K20-30.00 is spent on alcohol and marijuana and he does not listen to Thomas Mani and his wife, Selestin. Despite numerous warnings to change his bad ways, the prisoner has not listened to advice and had left the foster parents’ home when he committed this offence. They tried their best to help him to upgrade his education but to no avail. It was his attitude that made him leave school.

It is evident form the report that the foster parents do not want the prisoner back as they have had enough of him. It is their wish that the prisoner returns to his natural mother. In the light of that, he cannot be placed on probation under their care. The prisoner was not honest enough to provide accurate information as to the address of his foster parents. In my view, this is the kind of attitude that the foster parents have had enough of. If he is going to be dishonest to the Community Correction & Rehabilitation Officer, there is no guarantee that he will abide by the terms of any Probation Order. That is why I consider that he is not suitable for probation.
His cousin Mathias Nei whom the prisoner seemed to have spent most of his time with at Morokea VOP Double Bridge has not demonstrated that he is mature enough to control and take care of the prisoner and to ensure that the prisoner stays away from mischief. It is my view therefore that the prisoner should be incarcerated in the hope that he will learn a lesson not to offend again.

The Court has also noted from the report that none of his relatives seem concerned about the prisoner. Again this does not assist the prisoner’s rehabilitation if released on probation. They said that the prisoner’s behaviour in the block can no longer be tolerated and that he should be sent to his mother. All these are consistent with the assessment that he is a high risk person in the community and may re-offend if not properly guided. The prisoner may seem to be a suitable candidate for probation, however the Court is concerned at the implication of his relatives’ relatives. The foster parents do not want him back. He is not a good member of the community and with consumption of alcohol and marijuana, there is no guarantee that he will stay out of trouble. Therefore the Court is not prepared to release the prisoner on probation. I am not convinced that he will keep out of trouble.

Whilst stealing may not be a very prevalent offence, there is evidence that the prisoner had threatened the victims with his hook knife. There is also evidence that the prisoner threaten to sodomise the victims. In the report, one of the victims, Sabeth Nelson, said that the prisoner had ordered her three times to bend down so he could have sex with her, however the escape of one of the three victims to get help saved her from a possible rape. This is consistent with her statement given on 20th February 2004 where she said the prisoner had threatened to rape and sodomise her and had actually grabbed her, but as the other victim, Susan Leo, stopped a passing vehicle, the prisoner used his hook knife to cut and tear off her (Sabeth’s) shorts around the thigh then ran away. The threat of sexual intercourse is supported by the evidence of Maria John. I am satisfied that there are aggravating circumstances in this case.

There is no reason why the prisoner cannot return to his natural mother or to his own village. He is unemployed; he cannot listen to his foster parents for advice to change his bad habits, and they do not want him back so back there is no good reason for him to remain in Kimbe. He must be repatriated to East Sepik Province, either by the State or the relatives who are willing to do that. It is up to the relatives and the Commander of Lakiemata jail to arrange this.

Having considered all the submissions for the prisoner and taking everything into account including his personal antecedents and other aggravating factors, it is the opinion of the Court that a custodial sentence is warranted in the circumstances.

The Court therefore orders that the prisoner is sentenced to 3 years imprisonment in hard labour. I also order that 4 months be deducted for time spent in custody awaiting trial leaving the balance of 2 years 8 months to serve. I further order that the prisoner serves his prison term at Boram Correctional Services in Wewak, but in the meantime, he be detained at Lakiemata Correctional Service. Pursuant to s. 600 (2) (a) of the Criminal Code, it is further ordered that the prisoner must not return to Kimbe within 5 years after his release from prison.

Lawyer for State : Public Prosecutor
Lawyer for Prisoner : Public Solicitor