N7692

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 957 OF 2015

THE STATE

V

JOE MARA PANDAUN

Kimbe: Miviri AJ
2017: 5th 24th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Civil Aviation Act 2000 – S267 attempting to take dangerous weapon on board aircraft  –S287 trespass onto tarmac ––guilty plea–remorse expressed—serious offence with serious repercussions domestic and international-gateway safe and secure-personal matter spilled into public domain-strong and punitive sentence.
Cases Cited	
Fisherman's Island) [1990] PNGLR 22 
Pelgens Ltd v Mathew [2002] PGNC 28; N2346 
Prosecutor v Kerua and Kerua, [1985] PNGLR 85
Acting Public Prosecutor v Haha [1981] PNGLR 205
Resena, Gaigo and Oala v The Independent State of Papua New Guinea (re Public 
The State v Tumu [2017] PGNC 130; N6768 
The State v Heni [2008] PGNC 206; N3541 
The State v Susure [1999] PGNC 58; N1880 
The State v Kagai, [1987] PNGLR 320 
The State v Norris [1979] PNGLR 605 
 
Counsel:
A. Bray, for the State
D Kari, for the Defendant

SENTENCE
25th October, 2017 
1.	MIVIRI AJ: 	This is the sentence of a man who ran onto the Hoskins airport tarmac armed with a bush knife in haste to stop his wife who was boarding that flight.

Short facts

2.	On the 6th November, 2014 at around 8.00am Prisoner had an argument with his wife Martha, she had purchased an airline ticket to travel to Port Moresby that morning. He went to look for her at Hoskins airport. There he had an argument with his brother Willie. As the passengers were boarding the Air Niugini flight the last person was his wife Martha. Upon seeing this he went and picked up a bush knife from his vehicle, rushed past the securities in the terminal, and ran onto tarmac passed the security guards where he was asked by Wesley Taito, the airport manager not to enter the gate into the tarmac area where plane was parked. He did and ran onto the tarmac followed by airport security. He ran up the stairs but was stopped there and disarmed and brought out of the tarmac area. His wife was removed and accused handed himself to the police and was charged.  

Charges

3.	The state indicted the accused under the Civil Aviation Act 2000 Section 287 trespassing onto tarmac and Section 267 (2) (b) attempted to take a dangerous weapon aboard the aircraft. Both counts were presented together and accused pleaded guilty to both counts. Having also arisen from the same set of facts at the same time.

4.	Section 267 was headed TAKING FIREARMS, EXPLOSIVES, ETC., ON TO AIRCRAFT, and read, -
(1) 	For the purposes of this Act, the term “firearm” means any gun, rifle or pistol, whether acting by force of explosives or not, and includes any such gun, rifle or pistol which for the time being is not capable of discharging any shot, bullet or other missile, but which by its completion or the replacement of any component part or parts or the correction or repair of any defect or defects, would be so capable, and also includes any such gun, rifle or pistol which is for the time being dismantled.

(2) 	A person who, without lawful authority or reasonable excuse, or without the permission of the owner or operator of the aircraft or of a person duly authorized by either of them to give such permission, takes or attempts to take on board any aircraft –

(a) 	any firearm; or 

(b) 	any other dangerous or offensive weapon or instrument of any
	 kind whatsoever; or 

(c) 	any ammunition; or

(d) 	any explosive substance or device, or any other injurious substance or device of any kind whatsoever which could be used to endanger the safety of the aircraft or of persons on board the aircraft,
is guilty of an offence.
Penalty: Imprisonment for a term not exceeding 7 years.
Here the State had pursued that the prisoner was armed with a bush knife a dangerous weapon invoking section 2 (b) of that section which had the sentence of imprisonment not exceeding 7 years. And that he had trespassed onto the airport tarmac without the authority and the permission of the airport manager committing the next offence under Section 287.

5.	Section 287 was headed TRESPASS and read:
	A person who, without reasonable excuse, enters or remains within an aerodrome or any building or area in which are operated technical facilities or services for civil aviation, when directed not to enter or not to remain by:

(a)	a person duly authorized in writing for that purpose by the Minister, the Departmental Head or the Director or by a member of the Police Force or an aviation security officer; or
(b)	notice posted by any of the persons referred to in Paragraph (a), is guilty of an offence.
	Penalty: 	A fine not exceeding K10, 000.00 or imprisonment for a term not exceeding three months, or both.
6.	Given the facts and the circumstances depicted by the evidence here the maximum fine was not called for nor the term of imprisonment of not exceeding three months.
7.	The accused admitted both charges and counsel defending made an application for presentence to be furnished to assist sentence. Accordingly adjournment was granted to Thursday the 12th October 2017 to allow the Pre- sentence and the means assessment report to be filed in court. This was done and submissions were made by both the Public Solicitor and the Prosecutor basing upon.
Allocutus

8.	“This is my first time and I want to apologies to court my wife left me in 2015 and I am left with the kids. I want the court to have mercy on me.”

Aggravation

9.	What was glaring at the outset was that, this was really an unfortunate incident of a family matter that spilled into the public domain the wife was getting on the plane and the prisoner was reacting with a bush knife to try to stop her from getting on that plane. It was fortunate that there were no injuries that emanated from the bush knife except that it was carried brandished in a threatening manner in a public airport tarmac and onto the plane parked loading in preparation to take off. There was that danger of injury present in view of the emotional status of the prisoner at that time.

10.	It ought to have stayed confined between them and not come into the public. A bush knife is a dangerous weapon and has on the occasion that it has been used; it has been done so with some of the most violent recorded cases of very serious offences known to the law emanating from its use. Crimes such as Manslaughter, murder, wilful murder grievous bodily harm, attempted murder, unlawful wounding, and armed robbery to name a few that come to mind. Therefore when it was in the hands of the prisoner in that state of mind at that time anything was foreseeable from it. A security guard or the crew in the aircraft or other passengers could have been hurt. An airport is a public facility accessed by all manner of people and it is the frontier into Kimbe, West New Britain and out of it. It should be safe secure and not a security threat on it as here. The image of the Province and the country is imprinted on that airport and the tarmac because not only local domestic travellers use it but foreign tourists, international business people with money being pumped into the province from the businesses that they venture here through that point of entry the airport. It is not a simple matter of Joe Mara Pandaun used a bush knife to get his wife off the plane. It’s not a light matter when you were told by the airport manager not to enter the tarmac as you were with a dangerous weapon your persistence past the securities right up the stairs into the aircraft, and to be disarmed there was terrifying for passengers inside at your sight. Part of the blame lies with your wife she should have seen out the problem with you before getting out into a public domain where it was surely going to follow suit as it did here. You are a good person with no prior conviction but were overcome by the emotion here.

11.	But you have pleaded guilty and even before that you gave yourself immediately to the police straight after the act making full admissions. You are a 32 year old self- employed man with five children the eldest of whom is 15 years old. Martha the wife who is at the heart of this matter is no longer with the Prisoner. He is therefore for all intent and purposes the mother and the father for the children. He is a first offender and did not persist with the offence after securing the release of his wife from the aircraft.

12.	It must be stressed that the process of law must be followed to settle disputes not taking the law into one’s own hands as was the case here. Public properties must be protected; the prisoner must be deterred from taking the law into his own hands including any like minded persons. Concession must be made that he has pleaded guilty and that there has been no major injury emanating and he voluntarily submitted him to the law and has maintained by his guilty plea. It is realization of the wrong that he has made and preparation to amend his ways for better. In his favour is that he has no further injury done as soon as he attained the discharge of his wife from that flight and he gave himself to the law. And the probation report sets this out in detail I need not repeat. It recommends probation for the prisoner.

13.	No other injuries or damage to property have emanated as result of the trespass that he committed. Pelgens Ltd v Mathew [2002] PGNC 28; N2346 (30 December 2002); Resena, Gaigo and Oala v The Independent State of Papua New Guinea (re Fisherman's Island) [1990] PNGLR 22 (9 January 1990) and therefore warranting a higher sentence. It was an offence committed to effect the offence under section 267. Both are related in time and date analogous to unlawfully on premises and of breaking entering and stealing, and in that regard cannot be treated differently for the purposes of sentencing, cumulative to each other. Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85 (1 April 1985). As both offences arises from the same set of facts I order that the sentences be served concurrently Acting Public Prosecutor v Haha [1981] PNGLR 205 (2 July 1981) 
		
14.	Further analogy can be drawn with grievous bodily harm under section 319 where the maximum sentence is 7 years IHL State v Tumu [2017] PGNC 130; N6768 (23 May 2017); State v Heni [2008] PGNC 206; N3541 (11 December 2008) where the bush knife is used to cause serious permanent and life threatening injury the sentence is between 3 and 4 years for very serious cases. Here the bush knife was carried brandished and did not go further than that therefore the sentence would be lower compared. The maximum sentence is the same in both instances. And the underlying principle is the same. Even under Section 315 the more serious of the two makes that point well State v Susure [1999] PGNC 58; N1880 (17 June 1999).  

15.	The maximum sentence is 7 years under section 267; in view of the factors pointed out above he is sentenced to 2 years IHL.

16.	In respect of section 287 he is sentenced to 1 month IHL.

17.	Both sentences will be served concurrently which means he will serve 2 years IHL. In the exercise of my discretion based upon the facts set out above invoking section 19 of the code, I order that the 2 years IHL be suspended and that he enter into a 2 year GBB. I do not consider probation appropriate as he has demonstrated evidence set out above compatible without so imposing. And for the same reason I impose no conditions upon the suspension made. The purpose of sentencing and alternatives must be considered in any case and it must be settled by the facts and circumstances of a given case as to one that best fits given. The purposes include retribution, rehabilitation, reformation and the application of each would be depended on the facts of each case. Kagai, The State v [1987] PNGLR 320 (12 October 1987). To over emphasize one or the other may lead to disproportionality of the sentence. It is therefore a delicate balance and must be towed by the facts and the circumstances. Norris v The State [1979] PNGLR 605 (7 December 1979) 

18.	I order any time in custody to be deducted forthwith.

19.	I order that his bail money of K1000 be refunded forthwith.

Orders Accordingly,

Public Prosecutor:  Lawyer for the State	
Public Solicitor: Lawyer for the Defendant