N6383
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 1464 OF 2014

BETWEEN
THE STATE

AND
JACOB CAJETAN

Waigani: Salika DCJ
2016: 15 June & 4, 15 July

PRACTICE AND PROCEDURE – CRIMINAL LAW – Sentence – Stealing following an invasion of dwelling house – Number of personal items stolen.

Cases cited:
Kesno Apo v The State (1988-89) PNGLR 182.
Pukari-Flabu v Hambakon-Sma (1965-66) PNGLR 348
State v Eki and others (2005) N3387
State v John Tundubo and 4 others unnumbered and unreported
State v Martin Sahin Terea, unnumbered and unreported
State v Meckpi (2010) N4099
The State v Tio (2002) N2265

Counsel:
Ms L. Jack, for the State
Ms Kasa, for the Prisoner

SENTENCE

15th July, 2016

Introduction
1.	SALIKA DCJ: The prisoner pleaded guilty to 4 counts of wilfully and unlawfully damaging properties belonging to Clifford Zazeng, the State, Bobby Tovi and Fabian Hahut.  These charges were laid under Section 444(1) of the Criminal Code Act.  He also pleaded guilty to 3 counts of stealing under Section 372(1) and (5) of the Criminal Code Act.
Facts
2.	The State alleged that on the 11th of May, 2014 between the hours of 6:30pm and 8:00pm, the prisoner and others invaded the premises of the complainant Mr Bobby Tovi and wilfully damaged and stole properties from therein.

3.	At the material time, the prisoner was the first person to enter the complainant’s premises and started throwing stones at the complainant’s house smashing the glass louver blades.  He then led the group into the yard.  He was followed in by about 9 to 10 other male ‘wantoks’.  They then continued to throw stones, bottles and timber pieces at the complainant’s house smashing more glass louver blades and damaging the outer walls of the house.  At the same time they were demanding compensation for an earlier altercation between Jacob Cajetan and the Complainant.  They also threatened the complainant that they would kill him and the others in the house if their demands were not met.  

4.	The prisoner then got stones and smashed the windscreen and mirrors of two vehicles that were parked in the complainant’s yard.  They then broke down the door of the house and went into the house and continued to break and smash properties in the house such as a TV screen, tables and other household items.  All the while the complainant and the others inside the house feared for their lives and locked themselves in the rooms of the house.

5.	The total cost of the items stolen and damaged is about twenty seven thousand, eight hundred and eighteen kina, forty toea (K27, 828.40).

6.	The State further alleged that after forcefully entering and damaging properties in the house they stole two (2) welding machines and a power drill belonging of one Fabian Hahut. 

7.	The State says that the actions of the prisoner and his wantoks or relatives in wilfully damaging and stealing the properties of Bobby Tovi, the State and Fabian Hahut contravened Sections 444(1) and 372(1)(5)(b)(i)(ii) respectively, of the Criminal Code Act.  The State further invoked Section 7 of the Criminal Code Act.

Allocatus Statement

8.	On allocatus the prisoner apologised for his actions to the complainant and to his family and to the Court.  I accept his apology.  He further said that the complainant is part of family because they are next door neighbours and that they share a lot of things together and requested that he be allowed to pay compensation and make up for the damage he and his relatives caused.

Personal Particulars

9.	The prisoner is about 27 years old and is from Wa village in the Mendi District of the Southern Highlands Province but lives at Gorogo Street, 5 mile.  He is single and has no children.  His parents are still alive and living in the village as subsistence farmers.  He has one sister and 4 other brothers and lives with his elder brother in his house here in Port Moresby.  He was educated up to high school level but due to much tribal fighting in his area he left school and has since not pursued any further education.

10.	He is not formally employed but assists his elder brother as a handyman with little chores his brother tells him to do.  The prisoner however is in good health.  The prisoner does consume alcohol, chews betelnut and has smoked marijuana but he said he has now dropped the habits since spending time in custody awaiting trial of this matter.

Mitigating Factors

11.	The prisoner is a first time offender and has never been in Court before.  He pleaded guilty to all 7 counts for which he is charged and has expressed remorse for his actions.

Aggravating Circumstances

12.	The victim and his family were traumatised by this event.  To invade ones dwelling home is uncivilised and has no place in modern PNG.  To involve his relatives into this problem only fuelled the situation.  Wilful damage to property means intention to cause that damage.  Intention to do anything in my respectful opinion is an aggravating factor because it is deliberate.  Wilful can also mean recklessly or maliciously doing an act.  Intention is what is in the mind of the person committing the act and it is difficult to prove from the outside but may be proved from inferences from other proven facts.  In this case the prisoner pleaded guilty to the charges and this has made the Court’s task easier (See Pukari-Flabu v Hambakon-Sma (1965-66) PNGLR 348).

13.	In this case too there is some evidence that the incident happened while the prisoner was under the influence of alcohol.  The consumption of alcohol may have been the reason for the prisoner acting in the way he did and to some extent goes to the question of culpability.  This is because if he was acting under the influence of alcohol and committed those offences his self control ability to think rationally was impaired by alcohol.  (See Kesno Apo v The State (1988-89) PNGLR 182).

14.	However if he voluntarily consumed alcohol to give himself courage to commit the offences it could be considered as an aggravating factor.  (See State v Abel Airi (2000) N2007).  There is no evidence of this in the depositions and I will give him the benefit of the doubt on this aspect.

15.	The total amount of damage done in monetary terms was K25, 928.40 while value of things stolen was K1, 900.00.  This is a substantial amount.

The law

16.	Section 444(1) says:

“(1)  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.”

Section 372 says;

“(1)  Any person who steals anything capable of being stolen is guilty of a crime.

Penalty:  Subject to this section, imprisonment for a term not exceeding three years.

(5)-
	(b) the thing is stolen in a dwelling-house, and-
		(i) 	its value exceeds K10.00; or
	(ii)	the offender at or immediately before or after the time 	of stealing uses or threatens to use violence to any 	person in the dwelling-house;

The offender is liable to imprisonment for a term not exceeding seven years.”

Issue

17.	What is the appropriate sentence to impose on this prisoner?

Case Precedents – Wilful damage

18.	Counsel alluded to the following case precedents to assist the Court in coming to an appropriate sentence:-

a)	State v Meckpi (2010) N4099

“The prisoner pleaded guilty to one count of wilfully and unlawfully damaging the glasses of a vehicle owned by one Robert Tukondo, He used an iron rod to smash the glass.  The monetary value of the damage was assessed at K10, 924.34.  A Pre-Sentence Report and a Means Assessment report were provided.

Justice Kawi imposed a sentence of 10 months but had it wholly suspended with strict conditions including restitution”.

b)	State v John Tundubo and 4 others unnumbered and unreported judgement of Makail J dated 10 December 2008

“In that case, the offenders armed themselves with axes and knives and went into a primary school and entered the office of the school principal.  They destroyed the computer, the printer and printer cables, scanner and the photocopier.  The costs of all these damaged school items stood at K16, 442.80.  
Makail J imposed a head sentence of 1 year but then had it wholly suspended with strict conditions including restitution.”

c)	State v Martin Sahin Terea, unnumbered and unreported decision of Cannings J 22 March 2005.  

The prisoner pleaded guilty to a charge of wilful and unlawful damage to property under Section 444(1) of Criminal Code.  Prisoner is a public servant working in the Bougainville Administration working as a graphic artist.  He arrived at work drunk, armed with a screw driver which he used to damage office equipment and fittings.  The mitigating factors in that case were that the value of the properties damaged low, he acted alone, it was an isolated incident and he co-operated with police.

Case Precedents – Stealing
 
19.	The following case precedents on stealing charges were cited by counsel:-

a)	The State v Eki and others (2005) N3387 Kandakasi J

“This is case which involved 3 co-accused, who were charged separately with three charges, all arising out of the same set of facts.  Both Fabian and Aisi Eki were part of a group of people that marched into the Works Compound and broke into and looted and burnt the complainant’s house.  They acted in retaliation of an alleged assault on one of their villagers.  They all pleaded guilty to the charges, all are first time offenders.  However the aggravating factors in this case far outweighed the mitigating factors.  In His Honour’s ruling he considered that a custodial sentence is appropriate to send a strong deterrent message to like-minded people who intend to commit such offences.”

b)	The State v Tio (2002) N2265 Kandakasi J
“The accused pleaded guilty to one charge of stealing pursuant to Section 372(1) (10) Criminal Code Act, a chain saw from Steamships Hardware in Wewak.  He was employed as a security guard, guarding the Hardware at that time.  Whilst on duty, he stole the brand new chain saw valued at K8, 000 and later sold it to one Benedict for K3, 000 to which he received K1, 000 as first payment.
His Honour pointed out the value of the property stolen which was seven times more than the amount received.  He was sentenced to 5 years imprisonment in hard labour less pre-trial custody period.  This is to reflect the need to deter an important consideration in sentencing.”

Sentence
20.	The factual circumstances in this case are rather quite serious.  The prisoner and his relatives got weapons and hurled them at the dwelling house of the complainant.  Glass window louver blades were smashed and destroyed.  The prisoner went and got 9 or 10 other of his relatives to commit the crime.  He did not commit the crime alone.  It is wonder no one in the house was hurt or injured because by 6.30 in PNG in May it gets dark and by 7.00 pm it is dark and one cannot see things thrown in the dark by this time.

21.	The prisoner and his relatives broke down the door of the complainant’s house and went inside and did some more further damage and then looted the house of some of the properties in the house.  Their actions amounted to an invasion of the complainant’s house.  The complainant and his family’s privacy was invaded and violated and their safety was threatened by the actions of the prisoner and his wantoks.  This kind of attitude must stop.  The factual circumstances in this case are distinguishable from the case of Martin Sahin Terea.  In Terea’s case the property destroyed was valued at K2, 000 and the Court considered it as property of low value.  In this case the property destroyed was valued at K25, 900 which is of significant value in PNG terms.  In Terea, the prisoner acted alone.  In this case the prisoner got 9 or 10 of his relatives and they all joined in to attack the complainant.  In the Terea case the incident was an isolated one.  In this case this was not an isolated event.  Other events earlier had led to this.  Terea’s case was also considered by the Court as a non violent one.  I consider this case as a violent one.  There was physical violence and threats of violence issued and people’s lives were put at greater risk.

22.	The maximum penalty for wilful and unlawful damage is 2 years imprisonment.  I consider the damage in this case to be of a serious nature for reasons stated above.  I consider that I must impose a sentence that will serve as an effective punishment on the prisoner himself that will not only rehabilitate him but also serve as a deterrence to him from reoffending and deterrence to others as well.

23.	In the circumstances I impose a term of imprisonment for a period of 18 months on the charge of wilful and unlawful damage to property.

24.	In relation to the charge of stealing I impose a sentence of 3 years as the value of goods looted or stolen are only K1, 900.

25.	The sentences for the 2 counts will be served concurrently as the offences arose out of the same facts and happened that same time.

26.	In conclusion I add that Section 7 of the Criminal Code is invoked.       

27.	He has served 2 years, 1 month and two weeks.  That will be deducted from the three years.  He has a balance of 10 months 2 weeks to serve.

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