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State v Hileiya [2013] PGNC 372; N9047 (25 October 2013)

N9047

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 656 OF 2013

THE STATE

V

JERRY HILEIYA

Alotau: Toliken, AJ
2013: 17^th, 25^th October

CRIMIAL LAW – Sentence – Guilty plea – Unlawful and wilful damage to property – Destruction of fish aggregating device – Public property – Aggravating and mitigating factors considered – Loss to community including prisoner – Degree of participation considered – Appropriate sentence – 14 months imprisonment less time in custody – Criminal Code C. 262, s 44(1).

Cases Cited

The State v Terea (2005) N2816; The State v Telape (2009) N3815
The State v Betty Kaime; CR No. 1793 of 2002
The State v Jan Tundubo & Ors; CR No. 822 of 2008
The State v Ronnie Anoia; CR 654 of 2013 (unreported and unpublished judgement dated 25 October 2013)

Counsel

R. Auka, for the State
M. Arua, for the Prisoner

JUDGMENT OF SENTENCE

25^th October, 2013

1. TOLIKEN, AJ: Jerry Hileiya on 17^th of October 2013, you pleaded guilty to one count of wilful and unlawful damage to property, an offence under Section 444(1) of the Criminal Code Act, Chapter 262 (the Code). The State also invoked Sections 7 and 8 of the Code.

2. You were charged that:

“...On or about the 1^st day of January 2013 at Awaibi, Misima, in Papua New Guinea, [you] wilfully and unlawfully destroyed a Fishing Aggregate Device (FAD) valued at Twenty Thousand Kina (K20,000.00), the property of National Fisheries Authority”.

3. The brief facts put to you on arraignment are that during the month of December 2012, the National Fisheries [Authority] (NFA) staff boarded [a ship] and went around the Milne Bay seas installing Fish Aggregating Devices (FAD). The device is used as a breeding ground for fish and to make it easier for people to catch fish within the area where the device is installed. On Misima Island, the device was installed off the shores of Awaibi on 27^th December 2012 for the benefit of all southern Misima communities.

4. On or about the 1^st of January 2013, you were part of a group that went to the place where the device was. You saw the floater with the device and took it to the side. You, (Jerry Hileiya) took a knife, unscrewed everything and got a solar panel and a bulb. After the device was unscrewed it became dysfunctional and useless. You unlawfully destroyed the device and the State also said that you are equally responsible for the actions of others who also participated in destroying the device.

5. You admitted these facts and I entered a provision guilty plea which I confirmed after I read the District Court depositions and satisfied myself that your plea was safe. I then convicted you.

6. You are 21 years of age and come from Yaritan village on Motorina Island, Misima, Milne Bay Province. You are the second born in a family of six children. You are married with 2 children. You were educated up to Grade 3 only and a simple villager and fisherman. You are a member of the United Church. You have no prior convictions.

7. In your address to the court on allocutus, you apologised to the court and to National Fisheries Authority. You said this was your first time to stand before the court and that you are a simple, village fisherman. You said you had no idea that the thing belonged to the National Fisheries Authority. You thought it belonged to illegal fishermen. You promised not to do such thing again and pleaded for mercy. You asked to be placed on good behaviour bond.

8. Your lawyer, Mr Arua and State lawyer, Ms. Gore made the same submissions as they did in The State v Ronnie Anoia; CR 654 of 2013 which I passed sentence on immediately before yours. There is therefore no need for me to repeat them here except to say that counsel argued that yours is not the worst offence of its type and that an appropriate sentence for you should also be 1 year imprisonment with possible suspension.

9. The offence you were charged with under Section 444(1) is a misdemeanour - a less serious offence than a crime which is the most serious in the classification of offences. The least serious of offences are the simple or summary offences. The maximum penalty under Section 444(1) is two years imprisonment.

10. The law is settled that the maximum penalty for any offence is reserved for the worst sentence of a particular offence. Sentences are also not uniformly imposed but are imposed according to the merits and peculiar circumstances of each case. That is so because offences are committed under all sorts of circumstances and reasons with varying degrees of seriousness and moral blameworthiness or criminal culpability.

11. I find your case (as I did in Ronnie Anoia’s case) not to be the worst type but is serious enough to warrant an appropriate sentence that will reflect the amount of damage you individually caused to the FAD coupled with your degree of participation with others in destroying it and the consequences that resulted ultimately.

12. In deciding what an appropriate sentence should be, sentencing judges find guidance in other sentences imposed by themselves or other judges and any sentencing guidelines laid down by the Supreme Court (or by Parliament as is the case in other jurisdictions) in order to bring about consistency and purity in the sentences they impose.

13. In this regard for the purpose of your case, I adopt the cases that I cited in the case of Ronnie Anoia. There is no need for me to go through those again. They can be gleaned from my judgment in that matter. The sentences in those cases ranged from 6 months – 7 years with partial suspensions. (The State v Betty Kaime; CR No. 1793 of 2002; The State v Terea (2005) N2816; The State v Jan Tundubo & Ors; CR No. 822 of 2008; The State v Telape (2009) N3815)

14. Coming back to your case, I find the following mitigating factors:

• You pleaded guilty to the charge.
• You are a first-time offender.
• You expressed remorse for your offence.
• You co-operated with the police.
• You offered no violence or injured anybody.
• You are a simple villager who is not to say that you are stupid though.
• I accept that you may not have personally known that the device belonged to NFA even though it is evident from the photographs tendered that the words “NFA” were clearly marked on the device.
  

15. Against you, I find the same aggravating factors that I found against Ronnie Anoia; that the device is an expensive one valued at K22,000.00 and the cost of installation would have been high too. The device was installed for the benefit of local communities and individuals like yourself to improving fishing stock in your area, the destruction resulted in direct loss to the local community by impacting negatively on food security and economic benefits because the depositions show the FADs were installed to mitigate or cushion the effects of the closure of the Beche-de-mer industry to the local economy and livelihood of individual island villagers like those on Misima.

16. But unlike Ronnie Anoia, who pretty much acted in isolation and only came upon the device after it has been cannibalized, you were part of the group who caused the most damage rendering the device useless by removing essential equipment like the solar panel and light bulb. In fact, it was you who unscrewed everything, so your degree of participation cannot be said to be trivial.

17. Because you were in a group, the State’s invocation of Sections 7 and 8 of the Code is in order hence you must be held equally responsible for the damage caused to the device by others in the group. You are a principal offender who played a large role at the destruction of the FAD. I do, however, take into your favour the fact that it is not clear from the deposition if the FAD had been rendered completely unserviceable.

18. So, given your participation in the destruction of the device and the consequences of your action to both NFA and the local community there is a higher level of criminal culpability or moral blameworthiness on your part. And this should be reflected appropriately on your sentence.

19. As I said in Ronnie Anoia’s case, there is need for personal and public deterrence here to make people respect public assets which our government and its agencies like NFA and our donor partners put up in rural and urban communities – often at huge costs for the benefit of people in those communities.

20. So, if Ronnie Anoia got 1 year for his part - which was simply to cut the rope anchoring the floaters to which the solar panel and light bulbs itself was mounted, after you and your friends removed the panel and lights – then I think that for your part, which as I found was more serious, you should get a slightly higher sentence. In the circumstances, I think that you should get 14 months. Hence, I sentence you to 14 months imprisonment. You have been in custody for 8 months awaiting your trial so that will be deduced from your sentence leaving a balance of 6 months.

21. Again, for deterrence to have some real effect none of this should be suspended.

22. You shall, therefore, serve 6 months at Giligili Corrective Institution.

Ordered and sentenced accordingly.

__________________________________________________________________
Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Prisoner