N9705

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 10 OF 2021

BETWEEN:
THE STATE

AND:
CYRIL PRABON

Vanimo:  Rei, AJ
2021: 8th, 10th & 12th November
2022:  4th, 8th & 11th April

CRIMINAL LAW – Practice and Procedure - plea of guilty on charge of wilful damage to property in the night – extenuating circumstances – 1 year imprisonment wholly suspended on conditions.

Cases Cited:

Goli Golu -v- The State [1979] PNGLR 653v-
The State -v- Dipsy (2017) N8007
The State -v- Meckpi [2010] PGNC 99; N4079
The State -v- Michael Tele [2014] PGNC 341 N5802
The State -v- Gwanden; CR. No. 1508/2017
The State -v- Mathew Yaka (2021) N9051
The State -v- Samban (2007) N4998
The State -v- Meckpi (2010) N4079
The State -v- Nolbert Noho CR No. 101 of 2022

Legislation:

Section 444(1) & (2) of the Criminal Code 
Section 2(1), 4, 5(2) & (3)(b) and Section 7(2) of the Criminal Law Compensation Act 1991 (No. 26 of 1991)
Section 19 of the Criminal Code

Counsel:
		
Ms. T. Aihi, for the State
Mr. P. Moses, for the Defence

11th April, 2022

1.	The accused was charged with the offence of wilful damage to property pursuant to Section 444(1) & (2) of the Criminal Code (“C.C.”) being a motor vehicle registration number ZGU 334, property belonging to West Sepik Province Health Authority on the night of 8th October 2020 by the accused Cyril Prabon which property was being used by the complainant Adrian Lohumbo an officer of the West Sepik Health Authority on 24-hour basis.

2.	An indictment was presented on the 10th of November relating to the charge whereupon its’ contents and the brief facts were read out to the accused in open Court.

3.	The accused was asked whether he understood the charge and the facts.  He said he did.

4.	He was asked to plead to the charge whereupon he said he pleads guilty to the charge of wilful damage to property.

5.	Mr. Moses submitted that the plea was consistent with his instructions which was confirmed upon my perusal of the committal file.

6.	The accused was found guilty of the charge of wilful damage to property in the night pursuant to Section 444(1) & (2) of the Criminal Code and was convicted of the offence of wilful damage to property in the night.

7.	Ms. Aihi for the State submitted the prisoner does not have any prior conviction and that this is his first encounter with the law.

8.	An allocutus was administered in which the prisoner stated that there were extenuating circumstances which caused him to break the law by wilfully causing extensive damage to the vehicle ZGU 334.

9.	He stated that his wife has been a patient with mental illness and asthma and frequently goes to the Vanimo General Hospital for treatments.

10.	He also stated that the complainant Adrian Lohumbo has the custody and use of the vehicle ZGU 334 who used that official vehicle on previous occasions by picking up his sick wife and having sexual intercourse with her without her consent, the complainant knowing very well that the wife (of the prisoner) suffers from mental disorder and asthma as he himself is an officer of the West Sepik Health Authority as the Chief Executive Officer, he knew very well of these conditions.

11.	The prisoner also stated that a few days before he committed the crime, the complainant drove the official vehicle to his residence and picked up his sick wife and tried to drive her out to have sexual intercourse.

12.	After being picked up and along the way, the sick wife begged the complainant to take her back to her house as she had left her baby without a guardian.

13.	This request was refused by the complainant who drove her to the CIS Compound at Vanimo along the Vanimo Beach and sexually penetrated her without her consent.  After the ordeal, the complainant Adrian Lohumbo took her to her house and left her like an animal.

14.	These facts were confirmed by Ms. Marilyn Binjari the Probation Officer in her Pre-Sentence Report dated 12th November 2021.

15.	The sick wife related these information to the prisoner a few days prior to the 8th of October 2020 and on the 8th of October 2020 the prisoner went to the premises of the complainant looking for him but was told that he was away on duty travel and instead caused extensive damages to the vehicle estimated by Ela Motors in its quotation at K23,014.40.

16.	As a direct result of his actions, the prisoner stated in allocutus that he was immediately suspended by the West Sepik Province Health Authority without notice and without pay until to date.  This is confirmed by Dr. Stanley Bita in the PSR.

17.	His suspension without pay and without any written notice has directly affected the well-being of his family, especially the children who have not attended classes since his unilateral termination because of lack of funds.

18.	The prisoner says he has five (5) children the eldest being 16 years of age.

19.	He said sorry for what he did and asked that the Court be lenient in imposing sentence.
	
20.	The PSR also states that the prisoner looks after his wife and his second born sister who were both mentally affected who have been given treatment by the complainant himself until they recovered.

21.	It also states that the complainant is married to the cousin sister of the prisoner.

DECISION ON SENTENCE

22.	I have considered the mitigating factors which are that the prisoner entered an early plea thereby saving time and costs, a first time offender and that he is genuinely remorseful for what he did.

23.	I have also considered the (extenuating) circumstances which led to the commission of this offence which involves allegations of sexual penetration of a married but sick women suffering from mental disorder and asthma without her consent.

24.	These mitigating factors far outweigh the aggravating factors which is that he used a dangerous weapon to damage the motor vehicle to dissipate his frustration and anger as to the behaviour and conduct of the complainant who is a superior officer to the prisoner within the administrative set up of the West Sepik Province Health Authority.  He is the Chief Executive Officer.

25.	The Pre-Sentence Report which was compiled by Marilyn Binjari and dated the 12th day of November 2021 speaks favourably for the prisoner.

26.	The Means Assessment Report says that the damages done to the vehicle were paid for by the West Sepik Provincial Health Authority but Dr. Stanley Bita could not disclose how much was paid for by the West Sepik Provincial Health Authority except a “quotation” given by Ela Motors to the tune of K23,014.40 which has not been settled by the prisoner.

27.	In sentencing the prisoner, I am mindful of the serious allegations of sexual penetration of a sick woman by a generally elite person who must be taken to have known the medical conditions of the sick woman at all material times since he is a senior officer of the West Sepik Provincial Health Authority and yet he used undue influence to sexually penetrate her without her consent.

28.	These allegations are very serious and I recommend that the prisoner lays a complainant with the Police to arrest the complainant and charge him according to law if there is sufficient evidence to do so.

29.	Section 444(1) & (2) of the Criminal Code provides that a person who wilfully causes damages to a property in the night is liable to be imprisoned for a term of 7 years subject always to the provisions of Section 19 of the Criminal Code.

30.	In sentencing, each case must be considered on its own peculiar facts and circumstances – that the maximum penalty be reserved for the worst case Goli Golu -v- The State [1979] PNGLR 653.  The following cases were cited to me by Mr. Moses:

•	The State -v- Dipsy (2017) N8007 – the offender pleaded guilty to throwing a stone which cracked the windscreen of a Toyota Landcruiser.  The offender was drunk and in the company of others.  He was angry over the manner the complainant drove the motor vehicle.  The cost of the damage was K71,781.00.  The offender was only responsible for damaging the windscreen whilst other people damaged the vehicle by throwing sticks and stones at it.  The offender was sentenced to time spent in custody of 1 year 12 days.  There was no Pre-Sentence Report and it was the offender’s first offence.

•	The State -v- Meckpi (2010) PGNC 99; N4079 – the offender pleaded guilty to using an iron bar to damage the glasses of a Toyota Camry.  On arraignment the offender explained that he was frustrated over the delay in his court case.  The cost of the damage was K10,924.34.  The offender was sentenced to 10 months imprisonment which was wholly suspended on conditions including restitution.  There was pre-sentence report prepared to assist the court.  This was the first offence. 

•	The State -v- Michael Tele (2014) PGNC 341 N5802 – the offender pleaded guilty to damaging a truck by spearing its front tyre and breaking the window with the same spear.  The cost of the damage was K2,674.43.  He had an argument with the driver of the truck over the driver not collecting his oil palm fruit.  The offender was sentenced to 1 year 3 months.  Time spent in custody was deducted and the balance was suspended on the condition that the offender comply with strict conditions.  There was a pre-sentence report prepared to assist the court.  This was the first offence.

•	The State -v- Gwanden; CR. No. 1508/2017 – the offender pleaded guilty to damaging a Toyota Land cruiser.  The vehicle was completely damaged when the offender and others threw stones at the complainant and his supporters.  This was an election related grievance.  The offender was sentenced to 2 years imprisonment which was wholly suspended on condition that the offender restitute the complainant and comply with other conditions.  The value of the damage was not stated.  There was a pre-sentence report, and this was the offender’s first offence.

•	The State -v- Mathew Yaka (2021) N9051 – the offender demanded K20,000 from his sister-in-law.  She refused his demand.  Her failure to accede infuriated him.  He insulted her and walked off in a fit of rage.  Sometime later, he returned intoxicated and armed with a bush knife.  This time his brother was present.  He hurled obscene and vulgar words at his brother and sister-in-law.  A confrontation ensued.  The offender came out on the losing end with a somewhat bruised ego.  He took it out on his brother’s food garden and vehicle.  The offender was sentenced to 10 months imprisonment.  The Pre-sentence custody of 10 months was deducted.  He was released.

31.	Ms. Maru who appeared in the place of Ms. T. Aihi referred me to the following cases:	
	
•	The State -v- Samban (2007) N4998 – Prisoner pleaded guilty to two counts of wilful and unlawful damage to property and also pleaded guilty to two counts of arson.  In this case the Prisoner destroyed household properties and also burnt down two semi permanent houses.  In this case, the Court sentenced the Prisoner as follows:

Count 1:  Wilful and unlawful damage to Property:  2 years
Count 2:  Wilful and unlawful damage to Property: 1 year
Count 3:  Arson: 3 years
Count 4:  Arson: 4 years

The two sentences for wilful and unlawful damage to property were to be served concurrently ie 2 years and the sentence for arson were to be served concurrently which the Prisoner served 4 years.  In total the Prisoner served a total of 6 year term in custody.

•	The State -v- Meckpi (2010) N4079 – In this matter, Prisoner pleaded guilty to one count of wilful and unlawful damage to property.  In this case the Prisoner damaged the glasses of a vehicle by using an iron rod.  The cost of the damage was K10,924.34.

The Court imposed a term of 10 months in hard labour but the sentence was wholly suspended with strict condition that the Prisoner pay the cost of the damage to the Victim within 5 months from the date of the order and his cash bail of K200 was converted into a surety amount to ensure his compliance.  The prisoner was to be supervised by a Probation officer and a monthly report of his progress was to be filed in Court by the Probation Officer.

•	The State -v- Nolbert Noho CR No. 101 of 2022 – It was alleged that on the 7th of August 2021 at about 10pm at Mushu Village, the Prisoner Norlbert Noho was assaulting his wife at the gate to the log pond area of DD Investment Limited.  He was stopped by other members of the community and advised to leave whilst his wife escaped into the company premises.

It was alleged that the Prisoner returned some minutes later armed with a bush knife and entered the company premises.  He was advised to leave but he refused and with that started smashing the windscreen and side windows of the company Hilux vehicle Reg No. VAB 360 with the bush knife.  The cost of the damage to the company was a total of K7,289.15.

In this case, Thoke AJ sentenced the Prisoner to 10 months IHL-6 months pre-trial custody period.  The balance of 4 months period is wholly suspended on strict condition that the Prisoner pays the sum of K7,285.15 being the cost of the repair of the vehicle to DD Investment Ltd within 6 months from the date of the Court order failing which he serves the 4 months period in jail.

32.	Both Counsels submitted that the sentence to be imposed should range between 10 months and 12 months.
			
33.	This case poses a situation were damages were caused because of extenuating circumstances involving serious allegations of rape of a very sick married woman by a senior officer of the West Sepik Province Health Authority which resulted in the suspension of the prisoner without notice and without pay, causing real and serious financial hardship to the prisoner, his sick wife and children who have not attended school for almost two (2) academic years.  His daughter, Esmeralda Prabon, states in the PSR that her mother is sometimes not herself and her father is the only one looking after her and the whole family.

34.	A Means Assessment Report (“MAR”) was also compiled by Ms. Marilyn Binjari which states that the prisoner is presently unemployed but does free-lance jobs by compiling tax returns for local businesses in Vanimo from which he receives payment of K700.00 to K900.00 per month.

35.	The MAR suggests that if the prisoner is placed on probation because he is a potential candidate for probation, he is capable of paying damages caused to the vehicle within a period of 3 years by monthly instalments of K693.30 per month.  A monthly payment schedule was annexed to the MAR.

36.	I, however, note from the PSR the remarks made by Dr. Stanley Bita in the place of the complainant whom he said was then in Port Moresby on duty travel that “he contacted his boss CEO, Mr. Adrian Lohumbo who says that, because they had used government funds to repair the vehicle, they now leave it to the Court’s discretion to decide on the punishment for the offender for his unlawful actions.”

37.	I am of the understanding that the complainant Adrian Lohumbo is not keen to have the prisoner repay the costs of damages done to the vehicle 5th Element Hilux ZGU 334 but to see that the prisoner is punished.

38.	This is not a proper attitude of a senior officer of the Government of Papua New Guinea who holds the highest office of Chief Executive Officer within the West Sepik Provincial Health Authority who oversees all affairs of that organisation including personnel, finances and other related duties associated thereto.  He has the attitude that the Court must only satisfy him by imposing punishment on the prisoner and does not care one bit as to the loss incurred by the Government of Papua New Guinea regarding damages caused to its vehicle by the prisoner.

39.	Neither the PSR nor the MAR discloses any information as to the exact or specific amount that was paid for the repairs done to the vehicle by the West Sepik Provincial Health Authority by producing payment receipts.

40.	Whilst the MAR says that the prisoner is prepared to repay damages he caused to the vehicle, no exact figure was given.  The MAR only relied on the quotation of Ela Motors Limited which may be less or more than the exact amount paid out.

41.	I was left with no exact or specific figure to determine whether an Order be made for the prisoner to pay compensation to the West Sepik Provincial Health Authority.

42.	Given this dilemma, I consider that an Order should be made applying the provisions of Sections 2 & 5(2)(b) of the Criminal Compensation Act 1991 (No.26 of 1991) which provide that “in addition to any other punishments imposed, (a Court) may order an offender to pay compensation ….. whether in the form of cash, goods, services or any other kind or method of compensation which shall not exceed K5,000.00…..”

43.	Considering these factors, I impose a custodial sentence of 1 year.

44.	But in the exercise of my discretion under Section 19 of the Criminal Code, I make an order that the sentence of 1 year is wholly suspended on the following terms and conditions:

•	that the prisoner shall pay compensation to the West Sepik Provincial Health Authority in the sum of K5,000.00 in accordance with the provisions of the Criminal Law (Compensation) Act 1991 within 12 months;
•	that the prisoner shall be of good behaviour for the period of 1 year;
•	that the prisoner shall not cause any further damages to the property belonging to the complainant and the West Sepik Provincial Health Authority;
•	that the prisoner shall keep away from the complainant and shall not harass or intimidate the complainant; 
•	should the prisoner breach any of the above orders, he shall be imprisoned for 1 year from the date of his arrest; and
•	the prisoner is at liberty to institute proceedings for dismissal from office. 
________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants