N7461

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 207, 202, 208, 203, 209, 204, OF 2017

THE STATE

V

NIGEL MASO & BENNY PANGURA & KELVIN RUBEN SUKURI

Kimbe: Miviri AJ
2018	  : 15 August,11 September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Unlawful & wilful damage s 444 CCA– Stealing S372 CCA – plea – first offenders – group attack concurrent sentences – Favourable PSR & MAR – good basis alternative to imprisonment – suspended sentence with conditions – payment of compensation – reconciliation – deterrent sentence
Facts
The three prisoners were drunk. They came to the market of the victims and threatened them with weapons, discharged a firearm and destroyed the market stalls and stole what was on sale.

Held
Plea first time offenders
Parity 
Concurrent sentence
Deterrent reformative sentence

Cases:
Acting Public Prosecutor v Haha [1981] PNGLR 205 
Kerua & Kerua v Public Prosecutor [1985] PNGLR 85 
Pakuri-Flabu v Hambakon Sma [1966] PNGLR 348
Tardrew, Public Prosecutor [1986] PNGLR 91 
The State v Cajetan [2016] PGNC 189; N6383 
The State v Goli Golu [1979] PNGLR 653.
The State v Saperus Yalibakut [2006] PGSC 27; SC890 
The State v Terea [2005] PGNC 136; N2816 
The State v Wellington Balewa [1988-89] PNGLR 49

Counsel:

A Bray, for the State
E. Yavisa, for the Defendant
		
SENTENCE
11th September, 2018
 
1.	MIVIRI AJ: This is the sentence of three prisoners Nigel Maso, Benny Pangura and Kelvin Ruben Sukuri who pleaded guilty that on the 29th day of July 2016 at Tamba Section 07, Block 503, Kimbe they stole from one Anna Markus goods to the value of K660.00 and K100 in cash, and from one Abigail David goods to the value of K943.00 and K500.00 in cash, and from one Gabriella Tiona goods to the value of K853.40 and K300 in cash, and from one Luke Watino Daniel goods to the value of K691.90 and K300 in cash all the properties of the said persons.

2.	And further that they Nigel Maso, Benny Pangura and Kelvin Ruben Sukuri on the 29th day of July 2016 at Tamba section 07 Block 503 Kimbe wilfully and unlawfully damaged market stalls the property of the residents of Tamba section 7. Who were the same persons whose goods and cash were stolen by the prisoners.

Background

3.	On the 29th July 2016 at night the three prisoners drunk and accompanied by others came in a bus to the market at the location stated where all the victims were marketing their goods. They got off sat down and were consuming their alcohol also were swearing and behaving disorderly. The owner of the block where the market was instructed for the victims to pack up their market goods and go because of this. As they were packing up to leave Benny Pangura called out, Kaikai Kan if you leave I will burn down the market houses. Nigel Maso joined him and both uttered the same words. Nigel Maso’s father assaulted him and others joined and chased the three prisoners and the others with them who got on the bus and drove away. As they were running away they uttered, “Kisim samting ya Kam bai mi lukim ol” meaning, “Bring that thing I will see them.”

4.	On the same day at about 2.00am to 3.00am accused Benny Pangura, Nigel Maso, and Kelvin Ruben Sukuri with others armed with a bush knife came threatened and assaulted the victims. They got their cash and goods from their market stalls after which Benny Pangura set it alight with his match destroying it completely. Nigel Maso and Kelvin Ruben Sukuri threatened the people, who were there not to stop what they were doing, and also discharged a shotgun there in the course of the assault and damaged the stalls there.

5.	Initially the committals was on armed robbery section 386 and arson section 436 of the Code but were reduced to the pleas to the charges set out above. The court was left open to consider all the material as there was no agreed statement of facts on the basis of which the matter could be determined. There was no restriction on the consideration of the material that was presented in accordance with Saperus Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006). That is as much as possible to interpret facts more favourable to the prisoner. With respect the facts that were against the prisoners were as much as important as were those in their favour. And to arrive at a properly balanced sentence in the matter it was proper and lawful to consider those facts. Justice was according to law and the facts and circumstances whether for or against were relevant admissible and applicable to be considered and given its full impact in the determination of sentence. 

First Charge

6.	The first charge is pursuant to Section 372 of Stealing:

(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.
(2)	If the thing stolen is a testamentary instrument, (whether the testator is living or dead), the offender is liable, subject to Section 19, to imprisonment for life.

(3)	If the thing stolen is anything in course of transmission by post, the offender is liable, subject to Section 19 to imprisonment for life.

(4)	If the thing stolen is an aircraft, the offender is liable to imprisonment for a term not exceeding 14 years.

(5)	If–

(a)	the thing is stolen from the person of another person; or
(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; or
(c)	the thing is stolen from a vessel, vehicle or place of deposit used for the conveyance or custody of goods in transit from one place to another; or
(d)	the thing is stolen from a vessel that is in distress or wrecked or stranded; or
(e)	the thing is stolen from a public office in which it is deposited or kept; or
(f)	 the offender, in order to commit the offence, opens a locked room, box or other receptacle by means of a key or other instrument,
	the offender is liable to imprisonment for a term not exceeding seven years.
(6) 	If the offender is a person employed in the Public Service, and the thing stolen–
(a) 	is the property of the State; or
(b)	came into the possession of the offender by virtue of his employment,
	he is liable to imprisonment for a term not exceeding seven years.
(7) 	If the offender is a clerk or servant, and the thing stolen–

(a) 	is the property of his employer; or

(b) 	came into the possession of the offender on account of his employer,
	he is liable to imprisonment for a term not exceeding seven years.
(8) 	If the offender is a director or officer of a corporation and the thing stolen is the property of the corporation, he is liable to imprisonment for a term not exceeding seven years.
(9)	If the thing stolen is–
(a) 	property that has been received by the offender with a power of attorney for its disposition; or
(b)	 money received by the offender with a direction that it should be applied to any purpose or paid to any person specified in the direction; or
(c) the whole or part of the proceeds of a valuable security that was received by the offender with a direction that the proceeds of it should be applied to a purpose or paid to a person specified in the direction; or
(d) the whole or part of the proceeds arising from a disposition of any property that have been received by the offender by virtue of a power of attorney for such disposition, the power of attorney having been received by the offender with a direction that the proceeds be applied to a purpose or paid to a person specified in the direction,
	the offender is liable to imprisonment for a term not exceeding seven years.
(10) 	If the thing stolen is of the value of K1, 000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.
(11) 	If the thing stolen is a fixture or chattel let to the offender to be used by him with a house or lodging, and its value exceeds K100.00, he is liable to imprisonment for a term not exceeding seven years.
(12) 	If the offender, before committing the offence–
(a) 	had been convicted on indictment of an indictable offence against any provision of this Division; or
(b) 	had been twice previously summarily convicted of an offence against any such provision punishable on summary conviction whether or not each of the convictions was in respect of an offence of the same character,
he is liable to imprisonment for a term not exceeding seven years.

7.	The relevant and applicable provisions are Section 372 (1) (10) because the value of the cash and goods of all the victims put together is K4348.30 which is above K1000 under subsection (10) therefore the maximum sentence prescribed for the offence is imprisonment for a term not exceeding 7 years. This would be the maximum the prisoners would be looking at in respect of the matter. But maximum sentence would be given the worst case: Goli Golu v The State [1979] PNGLR 653. 

Second Charge

8.	The second charge is pursuant to section 444 Malicious Injuries in General; Punishment in special cases. Section reads: 

“(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 penalty is provided by this section-imprisonment for a term not exceeding two years. 
(2)	If an offence against subsection (1) is committed by night, the offender is liable to imprisonment for a term not exceeding three years.
(3)	If the property destroyed or damaged was a dwelling house or a vessel, or an aircraft, and the injury is caused by the explosion of any explosive substance, and
	(a)	any person is in the dwelling house or vessel or aircraft; or
	(b)	the destruction or damage actually endangers the life or any person, 
(4).............................. (10)

9.	The relevant and applicable portion of that law given the present facts and circumstances is set out above. It is a wilful act meaning it is, “intentionally”, deliberately, recklessly, or maliciously but not accidently or negligently. For an offence to be committed under this section it is necessary for the accused to either to intend to do the particular type of harm in fact done, or having reason to foresee that such harm was likely to be done, for the accused recklessly to take the risk of it. Where the accused tossed a bottle out of the window of a moving bus and smashed the windscreen of a parked car, the test of liability is whether the accused intended the damage or had foreseen the risk involved: Pakuri-Flabu v Hambakon Sma [1966] PNGLR 348. It is an act of violence. That would be fitting of the act of Benny Pangura in setting fire to the market stalls in the presence of both Nigel Maso and Kelvin Ruben Sukuri who were there and partook in the crime.
 
10.	The facts here are similar to State v Terea [2005] PGNC 136; N2816 (22 March 2005) which invokes the same provision Section 444 (1) wilful and unlawful damage but in this case of office equipment by the prisoner who believed that these were used by his bosses for illegal and corrupt purposes. He was convicted and sentenced to 1 year IHL wholly suspended. The prisoners here by subsection (2) would be looking at the maximum sentence of 3 years imprisonment because the offence took place in the night.
 
Concurrent Cumulative Sentence

11.	The prisoners have been convicted of Stealing and for wilful and unlawful damage of property. Both were perpetrated upon the same victims on the same date at the same time. And is part of the same transaction, one transaction and therefore would fall into concurrent more than cumulative. They are not separated by time and date or upon different victims at different locations at different times. Both sentences will be treated concurrently: Acting Public Prosecutor v Haha [1981] PNGLR 205 (2 July 1981); Kerua & Kerua, Public Prosecutor v [1985] PNGLR 85 (1 April 1985). The aggregate or totality of the sentences would be considered at the end so that if excessive would be adjusted to give a proportionate sentence in view.

Mitigation	

12.	The prisoners have all pleaded guilty to both offences which is a dramatic change from their respective records of interview where each has not admitted the offences. In my view that is an honest acceptance of their wrong committed against the victims. Particularly in the light of the fact that the offences were committed in the night. Identification would have been in issue. It is therefore in that regard an honest plea of guilty to two serious offences with total sentences respectively of 10 years imprisonment. It must be considered in their favour in the determination of an appropriate sentence. And their respective sentences will reflect.

Allocutus

13.	All three prisoners have expressed sincere remorse and asked for probation on the condition that they would pay back the victims of their cash and goods.

14.	I adjudge that it is realization of the wrong made and expression overt of intention to make right wrong and move on in life, particularly as here where all were youthful and first time offenders who needed supervision and direction for the better. Immediate custodial terms are in order but in the light of these facts it is material to give them an option to work and to change for the better. Alcohol appeared the root of the matter and orders to quell and control its use will be in order. Further the expression by the parents to assist in the undertaking to make right the wrong by payment of compensation to the victims and rebuilding their market stalls was well orientated. Particularly Nigel Maso and Kelvin Ruben Sukuri. For Benny Pangura the parents have not come forward but it is important to give the prisoner a chance to change to use his initiative to make right the wrong and in this regard his sentence will be the same as the other two.

Antecedents

15.	Nigel Maso is 22 years old from Kunjigini,Wosara, East Sepik Province. At the time of the offence he was 20 years old. He was studying electrical trade at the Poinini Catholic Agricultural Technical High School in 2016 but did not graduate because he was arrested by Police for the offence. He had no employment History and is of the Catholic Faith. He is a first offender. The presentence report confirms these particulars. In the means assessment report he is unemployed and helps his mother with gardening. And is dependent on his parents for his upkeep. But has indicated that he is willing to pay compensation to the victims for the wrongs committed. But this would be not from his own source as he does not have. He will be relying on relatives to discharge any such obligation ordered by the Court. And his mother is willing to help with payment of K500.00. 

16.	In law it is his responsibility as he is convicted of both charges not his relatives, nor his mother. His quest to pay compensation is unreal lacking substance in that he does not have the means to pay that money if ordered. But he comes from a family where the mother has risen to support him. Presentence recommendation is for probation with extended period for compensation and rebuilding of the market stalls. This is viable and feasible given the discussion set out above.

17.	  Kelvin Ruben Sukuri was 18 years old at the time of the offence now 20 years. He is of the Catholic faith and is from Kumunbis, Maprik, East Sepik Province. He is a first offender educated to Grade 8 at Tamba Primary School in 2014. He undertook welding course for 6 months in 2015 at Moramora Technical School with no record of formal employment. But is supported by his parents for his upkeep every now and then and works in harvesting oil palm for others who pay him K100 to K200 but is not engaged in a steady employment. Income to sustain the compensation would fluctuate. Presentence report recommends probation with extensive period to compensate the victims and abstaining from alcohol. 

18.	Benny Pangura was 19 years old at the time of the offence and is now 21 years old from Munji, Kubalia, East Sepik Province. He is a first offender educated to grade 8 in 2015 and has not continued further nor does he have record of any formal employment. He is fully dependent and supported by his parents who have not backed his assertions that they would help in the payment of compensation to the victims in the sum of K2000. He is of the PNG Bible Church Tamba but is also a Catholic. Presentence and means assessment reports recommend that he is unsuitable to be placed on probation. 

19.	The presentence and means assessment reports are basis to invoke Section 19 (6) of the Code where suspension of sentence is envisaged but on the following basis; (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of bad health:  Tardrew, Public Prosecutor [1986] PNGLR 91 (2 April 1986). I consider these relevant and applicable given the facts of the present case and will be the basis to impose here. Particularly (1) and (2) because the prisoners are in perfect health.

Aggravation

20.	The offence was committed at night with the use of weapons and a gun was discharged which could have easily killed those who were there at that time. What was stolen was the means by which the victims made their living. Total cash and goods stolen were K 4348.30. There is no value set as to the market stalls that were destroyed. But from these stalls each of the victims made a living to support their lives. The destruction of which no doubt has effected particularly the cash and goods basis from which they made their living from. Both victims and prisoners are resident at the same area and restoration of their relationship would go a long way in that community and the Justice of the case. It was the result of abuse of alcohol now that it has worn off realization has set in on the wrongs committed and intent to start a fresh and to amend relationship. 

Comparative Cases

21.	In the State v Cajetan [2016] PGNC 189; N6383 (15 July 2016) prisoner pleaded guilty to 4 counts of wilful and unlawful damaging of properties belonging to three private individuals and the State. He also pleaded guilty to 3 counts of stealing under Section 372 (1) (5) of the Code. He was retaliating against the victims over an earlier incident. He and others invaded the premises of the complainant and wilfully damaged the properties there. He was accompanied by 9 or 10 others who threw stones, bottles, and pieces of timber at the complainant and others within who feared for their safety and hid in a room within the house.  Windscreen and glass of two vehicles parked in the yard were also damaged. Television screen tables and other household properties were damaged in the rooms in the house. The total cost was K 27, 828. 40. Two welding machines were also stolen and a power drill belonging to one of the persons named. The court imposed 18 months IHL for the wilful damage and 3 years as the value of the goods looted and stolen exceeded K1900. Both sentences were made concurrent as they arose from the same transaction.

22.	This is a similar situation but it is not as serious compared but these were market stalls destroyed by burning them down. And the goods and cash stolen value stands at K4348. 30. Applying Wellington Balewa v The State [1988-89] PNGLR 49 this would fall into the second category where the amount is between K1.00 and K10, 000.00 jail term of up to 2 years is appropriate. The values of the market stalls are not disclosed. Here also gun a dangerous weapon was discharged and may have easily led to death or injury upon those who were there. The prisoners were effected by alcohol. There are others who were with them who have not been brought to justice but only the three prisoners. The matter also arose over an earlier incident climaxing to this offence in retaliation. Each of the prisoners has indicated to pay the sum of K2000 to the victims. That would be a total sum of K6000 which would be beyond the scope of damage they have committed and also in view that others also involved are not before the court. Their sentence will be in proportion in that regard taking into account.

23.	The sentence of the court is therefore 3 years IHL for the crime of Stealing pursuant to Section 372 (1) (10) against Nigel Maso, Kelvin Ruben Sukuri and Benny Pangura. And for the crime of wilful and unlawful damage pursuant to Section 444 (1) the sentence of the court against the prisoners is 2 years IHL. As both arose from the same transaction both sentences will be served concurrently. The Sentence of the court is 3 years IHL upon the prisoners. Time in custody will be deducted as follows:

(i)	     Nigel Maso 1 year 8 months, leaving 1 year 4 months,

(ii)	Benny Pangura is 9 months; leaving 2 years 3 months,

(iii)	Kelvin Ruben Sukuri 9 months leaving 2 years 3 months

(iv)	Further in the exercise of my discretion in the light of all set out above under Section 19 (6) of the Code, I order that the balance of the sentence remaining against each prisoner will be wholly suspended in the case of each prisoner on a Probation order for the same period remaining on conditions as follows:

(a)	You Nigel Maso, shall enter into a probation order for 1 year 4 months on and you both Kelvin Ruben Sikuri and Benny Pangura, shall each individually enter into a probation order for 2 years 3 months on conditions as follows;

(1)	You Nigel Maso and Kelvin Ruben Sukuri shall within 48 hours report to the Probation Officer; and you Benny Pangura upon release after service of your current term within 48 hours to report to the probation office;

(2)	You Nigel Maso shall be resident at Tamba Section 10 Block 1644 Kimbe at all times in the course of your probation period;

(3)	You Kelvin Ruben Sikuri shall be resident at Tamba Section 10 Block 1643 Kimbe at all times in the course of your probation period;

(4)	You Benny Pangura shall be resident at Tamba Section 10 block 1642 Kimbe at all times in the course of your probation period upon release of current term in jail;

(5)	You all Nigel Maso, Kelvin Ruben Sikuri and Benny Pangura shall not leave your place of resident or Kimbe without leave of this court during the course of your probation period;

(6)	You all Nigel Maso, Kelvin Ruben Sikuri and Benny Pangura shall perform 600 hours of community work at a worksite to be approved by the by the Probation Office during the course of your probation;

(7)	You all Nigel Maso, Kelvin Ruben Sikuri and Benny Pangura shall keep the peace and be of good behaviour at all times;

(8)	You all Nigel Maso, Kelvin Ruben Sikuri and Benny Pangura shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;

(9)	You all Nigel Maso, Kelvin Ruben Sikuri and Benny Pangura shall attend your local Catholic Church Tamba every Sunday for Mass whilst on probation;

(10)	You all Nigel Maso, Kelvin Ruben Sikuri and Benny Pangura shall undergo counselling from your local Parish Priest or Catechist  and Michael Maigi chairman of Tamba Catholic Church for number of times as may be determined by the counsellors;

(11)	You Nigel Maso shall within 5 months as of the date of this order make restitution to Anna Marcus, Abigail David, Gabriel Tiona and Luke Watino Daniel in the sum of K 1000.cash and within 2 months as of the date of this order rebuilt their market stalls;

(12)	You Kelvin Ruben Sikuri shall within 5 months as of the date of this order make restitution to Anna Marcus, Abigail David, Gabriel Tiona and Luke Watino Daniel in the sum of K 1000.cash and within 2 months as of the date of this order rebuilt their market stalls;

(13)	You Benny Pangura shall upon release from your current term in jail within 5 months upon release make restitution to Anna Marcus, Abigail David, Gabriel Tiona and Luke Watino Daniel in the sum of K 1000.cash and within 2 months  upon release from jail rebuilt their market stalls;

(14)	The restitution by each prisoner in the sum of K1000 shall be apportioned in equal parts between each of the victims named on the indictment and a total of K3000 will be the sum total from the three prisoners forthwith;

(15)	The restitution subject of this order shall be witnessed by your probation officer, the police informant, Michael Maigi chairman of Tamba Catholic Church and Tamba village court magistrate and peace officers who will also witness the rebuilding of the market stalls for each victim until successful completion;

(16)	The Probation Officer shall file a report on the responses and progress of the probationer every four months and at any other time or interval as the National Court may order upon application;

(17)	In a breach of any of these Probation Orders your Probation Nigel Maso, Kelvin Ruben Sikuri and Benny Pangura shall lapse and you shall be arrested to serve the whole term of your sentence.

Orders Accordingly,
__________________________________________________________________Public Prosecutor: 		 Lawyer for the State	
Public Solicitor: 		Lawyer for the Defendant