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State v Tom [2023] PGNC 144; N10252 (12 May 2023)

N10252

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 234 OF 2023

THE STATE

V

SAMMY MIKE TOM

Ialibu: Miviri J
2023: 10^th 11^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Extortion Section 390A CCA – Plea – Motor Vehicle of Hospital Detained – K 50, 000.00 – Allegation Injury Sustained Vehicle Accident of Hospital – Threats Violence – Leader of Offence – Prevalent Offence – Hospital Denied Vehicle – Administration Duties of Hospital Forfeited Unnecessarily – Prevalence – Deterrent Sentence.

Facts:

Accused was injured in a vehicle accident that involved a hospital vehicle. He saw the subject vehicle on this day belonging to that hospital. He accompanied by others threaten the occupants of the vehicle with bush knives and stones forcing them out. He took possession of the vehicle and stated it will be returned to upon payment of K50, 000.00 to him.

Held:

Early Guilty plea.
First offender.
Serious and prevalent offence.
Deterrent sentence
3 years IHL

Cases Cited:
Golu v The State [1979] PNGLR 653
State v Mailen [2007] PGNC 233; N5036
State v Kep [2004] PGNC 151; N2616
Tardrew, Public Prosecutor v [1986] PNGLR 91

Counsel:

P. Tengdui, for the State
J. John, for the Defendant

SENTENCE

12^th May, 2023

1. MIVIRI J: This the sentence of Sammy Mike Tom of Kware 1 village, Nipa, Southern Highlands Province.
   
2. He was charged that, he on the 18^th November 2021 at Huripe Bridge in Nipa Southern Highlands whilst in the company of others and armed with Bush Knives and other implements and using actual violence, punched and dragged the driver of a motor vehicle, brown in colour Toyota Land cruiser Troop Carrier registered number HAX 904 valued at K250, 000.00 and stole the said motor vehicle the property of the Magarima District Hospital. The charge was pursuant to section 390A of the Criminal Code.
   
3. That section is in the following terms:
   

390A. DEMANDS FOR COMPENSATION OR OTHER PAYMENT.

A person who, with intent to extort or gain any thing, payment, or compensation from any person–
(a) demands the thing, payment or compensation; and
(b) in order to obtain compliance with the demand–

(i) causes or threatens to cause injury to any person or damage to any property; or
(ii) does or threatens to do any act which renders, or is likely to render any public road, bridge, navigable river or navigable channel, natural or artificial, impassable or less safe for travelling or conveying property; or
(iii) otherwise unlawfully threatens or intimidates any person,

is guilty of a crime.
Penalty: Imprisonment for a term not exceeding seven years.

4. Really if it is glossed out it is an offence of armed robbery. But that is not the subject of this sentence as a declaration has been filed by the Public Prosecutor effectively taking out the canvass of the discretion of sentence. There is life imprisonment whereas the offence here is a maximum of seven years imprisonment. Thus, my discretion is called by section 390A, not 386 of the Criminal Code against the Prisoner.
   
5. Given the Prisoner is likely to be sentenced to the maximum sentence of seven (7) years imprisonment prescribed. But as with all cases that is reserved for the worst case of extortion: Golu v The State [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979). His case is not the worst case of extortion by its facts and circumstances so a determinate term of years will be imposed upon him. A proportionate of which will be the sum total of all aggravating as well as mitigating, including any extenuating circumstances peculiar to his case. Ultimately that will give the measure of his criminal conduct.
   
6. He has taken the initiative to plead guilty to the arraignment that on the 18^th November 2021, he was part of a group of men who were armed with bush knives and stones. The hospital vehicle of Magarima District Hospital Toyota Land cruiser brown troop carrier registered number HAX 904 came to the Huripa Bridge where it was stopped by the accused with these men. They threatened the occupants, Doctor Laiam Kirau and others in the vehicle to get out. And they forcefully removed them from the vehicle and drove the vehicle away with their properties. And that the Accused who was involved in an accident in one of the hospital vehicles wanted compensation for the injury that he sustained in the sum of K50, 000. 00 before the vehicle would be returned. Hospital Staff contributed K5000 took it to the defendant who refused and demanded K 50, 000.00 be paid as compensation before he releases the vehicle. Again K 10, 000.00 was raised and brought to the defendant who again refused that amount. On the 28^th of January 2022 he surrendered to Police highway Patrol and was brought in and charged for the offence.
   
7. That is accepting responsibility for an offence carrying the maximum penalty of seven (7) years. Initially the state indicted him with a charge of Armed Robbery, but a declaration was filed in respect of it. It related to the same matter. He was discharged of that charge. So, his sentence will solely be of extortion not anymore, any less. He is a first offender aged 42 years old originally from Kware 1 in Nipa in the Southern Highlands. He has no record of any prior convictions and comes before the court with an unblemished good character. He has eight kids and is a villager educated to grade 6 in Nipa Administration Primary School. That may have contributed to the offence, education will instil knowledge to avoid criminal conduct. But this is 12^th May 2023. And the offence was committed 18^th November 2021, two years ago from today. And the immediate area part of Southern Highlands is accessible to the world outside. Knowledge no doubt is widespread that criminal conduct has not place in civilized society. A wrong cannot be made right with another wrong, as is the case here.
   
8. In allocutus he stated; “Yes, I was at Home waiting for PMV the bus fare is K15 for Mendi. The brown ten-seater I got on got into an accident at Wara Lai Bridge and I was hospitalized. The tribes demanded for K 50, 000.00 compensation six times to the Magarima Administration. They delayed time. I was angry so I stood on the middle of the road and the vehicle came. I got accident from Komo Magarima District. I didn’t block road. My hand was injured so I stood in the middle of the road. I told them to bring compensation and I will release the vehicle. Because I got the accident from the Magarima District. They got two (2) innocent persons to the police. I was inside custody. I released the vehicle back.”
   
9. Defence counsel urged that it was in the discretion of the Court to suspend the sentence. And the prisoner was a first offender. He had threatened to use violence but then the vehicle was recovered. He had pleaded guilty and expressed genuine remorse for his actions. He had young children who depended on him as their father. Counsel sighted and relied comparatively on State v Mailen [2007] PGNC 233; N5036 (11 December 2007). That respectfully, in my view was also armed robbery, grievous bodily harm and demanding and committing extortion. It was given its facts a lot serious than the present. Because the offences led to conviction in each case. Totality was considered because of the multiple convictions. And there were two prisoners convicted. It is therefore a serious case. And by its facts and circumstances would not tie in with the present which is a case of its own by its own facts. State v Kep [2004] PGNC 151; N2616 (8 June 2004) would fall into the same as then, the offence was not so prevalent. And the court passed the sentence it did because there were multiple offenders charged. And the demand made was for half a million kina within seven days. And as a consequence, plant and equipment were forcefully taken and kept enticing the realization of the demand made. Again, in my view that is more serious than the present case.
   
10. In my view the facts and circumstances of the present case would not draw that penalty. But it was a demand over deaths as a result of the accident involving the said company. As is the present case. But there is no death here, it is the prisoner who suffers with a broken arm as a result of the accident. He has carried that into court as at the date of this sentence. He has a sling effecting and it would appear that it is permanent prima facie. It appears also that the particular arm is disfigured at the palm and the fingers. He has the fingers pointing rather than bended as normal. So, it is a suffering pain and disfigurement. And no doubt given the basis for his behaviour. He is a man of good character prior.
    
11. The State basically left the matter to the discretion of the Court. And in so doing it urged that it was a prevalent offence, be it for injury as was the case here, or instances where vehicles broken down on the roadside were left in the care of those immediately there to care. Compensation was demanded. Similarly, kids who patched roads demanded money if not given road blocked instituted. It was therefore a conduct that was spreading. There was immediate need to stamp it out with strong sentences. Its effect was causing development of the Country coming to grasp for air so to speak. It was a chock that was really unnecessarily hindering development as the roads were frequently used for many developmental purposes. People were using it as free hand to foster illegal attainments. It was prevalent and becoming the norm. It must be stopped.
    
12. Both submissions by Counsel addresses both sides of this offence which must be taken into consideration in the passing of sentence upon the prisoner. I do so, taking serious account of both into account in the sentence now considered against the prisoner. It is my view that there is a process of law to be followed always where a wrong is made. So that it is corrected properly without any consequences to anyone. The process of this section under the criminal code curbs against those who seek to address through this means perpetrated against, drawing a common circle of culpability and vindictiveness against a group, as here all vehicles of the Magarima District health Services. That is a government service for the People of Magarima Nipa and all the rest of the Southern Highlands. This is reflected in the passengers who were on that vehicle that day. They were not Health workers but students at the teacher’s college. Their education upon completion would have benefited the rest of Southern Highlands including Papua New Guinea as a whole. As a government it was being used to transport them back home for Christmas only to have them exit unceremoniously leaving their belongings at the mercy of the prisoner and his cohorts.
    
13. It is most unbecoming when Papua New Guinea is now 48 years old. It will not be upheld because that road also serves others in this Gas and Oil rich Province. Encouragement of that conduct will make the use of that road unsafe for all. Our people are no longer separate individual hamlets tribes’ villages but one country, one people, one Papua New Guinea. And actions of individuals intent on their personal trauma and health as here must be addressed through the law. Or any other matter against the law, it is a long process, but it must be endured to bring goodness, and the rule of law to all. The rule of law will bring light. Here self-invitation and motivation to get Justice using a short cut, not sanctioned by law has these consequences that visit a defendant. It is against the country Papua New Guinea and its People that must be squared off with a penalty that best fits his actions as a criminal. He is only one individual compared.
    
14. Here the driver of the vehicle was wrestled, punched for the keys he did not suffer any serious injuries. So too the others on that vehicle. The students only got their ID cards and certificate but not all their properties. They were innocent of what happened allegedly to the Prisoner. It was not their actions that he subdued them to this lawless conduct. Lawlessness in this way has rippling effects in this case on other users of that vehicle. For instance, the patients who were waiting on the Doctor in the vehicle. If indeed some were on the verge of death because of their medical conditions, it meant the actions of the defendant costed. So, it is not a light matter to take a vehicle because one’s hand was the result of an accident, involving a vehicle from Magarima District Health Services.
    
15. But you have pleaded guilty expressing sincere remorse. And the subject vehicle has been returned. In your age, 42 years old you will be wiser as of today. This conduct will be a lesson to you and others in the community, that it does not pay to take the law into your own hands. I have seen your hand in Court and the injury that is clear. You have come with it. It is on a sling. It is compared with the other side a disability that you will carry along in your life. It seriously needs to be medically reviewed so that you live a normal life. A man must have both his hands to be able to live a normal life. You have a wife and children who depend on you as the father to provide for them. You would need the full functions of both your hands to provide. If it is the fault of the driver from that Administration, I recommend that you see a lawyer to get what is just considering according to law. It will be a long process, but it will avoid what has happened here.
    
16. By itself it is pain endured coupled with the time in custody, it has no doubt given your plea and your age, you have learnt for the better. Further time in custody will not be in accord with your facts and circumstances. And which in my view is analogous with the expression of the Supreme Court in Tardrew, Public Prosecutor v [1986] PGSC 10; [1986] PNGLR 91 (2 April 1986):

“We consider that suspension under s 19(6) of the Criminal Code is, or may be, appropriate in three broad categories. There may be other categories but these are the main ones:

(a) Where suspension will promote the personal deterrence, reformation and/or rehabilitation of the offender. The suspension or part of a sentence on the condition that the offender keep the peace and be of good behaviour for a specified period may deter him from committing further crimes in that period. If he has committed a number of offences beforehand, the suspension may reform his lifestyle. His early release from prison because of the suspension may assist his rehabilitation back into the community. It would enable him, for example, to get a job and support himself and his family earlier than would otherwise be the case.

(b) Where suspension will promote the repayment or restitution of stolen money or goods. Suspension is a useful device to secure this end.

(c) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example, because of his bad physical or mental health. Some general discussion of additional hardships which a particular offender may face in prison as a mitigating factor — not particularly in relation to suspension of part of a sentence.”

17. Having considered all, you have a hand that I have detailed out that will continue to affect how you spent time in prison. And even after you have served sentence. In making this assessment I do not have the benefit of a medical report. But viewing it from where I am I have detailed my observation above. In my view it would not serve to incarcerate you any further. The time that you have served in custody ought to be enough to seal. But the balance will be suspended to show that the law must be followed, not breached. You will adhere given your plea and your age.
    
18. The aggregate is that I sentence you for the crime of Extortion pursuant to section 390A of the criminal Code to 3 years imprisonment with hard labour. I order that you serve 1 year of that sentence in jail. The remaining 2 years in the exercise of my discretion pursuant to section 19 (6) of the Criminal Code Act, taking account of all set out above, I hereby order be suspended on a good behaviour bond forthwith.
    
19. You are sentenced to Three (3) years IHL.
20. One (1) year will be served in jail forthwith.
21. Remaining 2 years IHL is fully suspended on 2 years GBB.
    

Orders Accordingly

__________________________________________________________________

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Defendant