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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 654 OF 2013
THE STATE
V
Alotau: Toliken, AJ
2013: 17th, 25th October
CRIMIAL LAW – Sentence – Guilty plea – Unlawful and wilful damage to property – Destruction of fish aggregating device – Public property – Aggravating and mitigating factors considered – Loss to community including prisoner – Degree of participation considered – Appropriate sentence – 1 year imprisonment – Criminal Code C. 262, s 44(1).
Cases Cited
The State v Betty Kaime; CR No. 1793 of 2002
The State v Terea (2005) N2816
The State v Jan Tundubo & Ors; CR No. 822 of 2008
The State v Telape (2009) N3815
Counsel
R. Auka, for the State
M. Arua, for the prisoner
JUDGMENT OF SENTENCE
25th October, 2013
1. TOLIKEN, AJ: Ronnie Anoia, on 17th of October 2013, you pleaded guilty to one count of wilfully and unlawfully damaging property, an offence under Section 444(1) of the Criminal Code Act, Chapter 262.
2. The charge was that:
“...On or about the 1st day of January 2013 at Awaibi, Misima, in Papua New Guinea, [you] wilfully and unlawfully destroyed a Fishing Aggregate Device (FAD) valued at Twenty Thousand Kina (K20,000.00), the property of National Fisheries Authority”. (Sic.)
3. The following facts were put to you on arraignment. In December 2012, the National Fisheries [Authority] (NFA) went around the waters of Milne Bay installing Fish Aggregating Devices (FAD). The device is used as a breeding ground for fish and to make it easier for people to catch fish within the area where the device is installed. On Misima Island, the device was installed on 27th December 2012 offshore at Awaiki for all southern Misima communities.
4. You own a dinghy and on the 1st of January 2013, you were travelling from Eaus to Motorina Island at around 9.00 am when you saw the device floating in the sea. You told your brother Joseph Anoia to cut the rope which he did, and you brought the rope home with you. After you cut the rope, others came and destroyed the whole device taking the light and everything else away. The State said that you unlawfully destroyed the device and further said that you are equally responsible for the actions of others.
5. I was satisfied that the District Court depositions supported the charge and your plea, hence, I entered a conviction against you.
6. You are 34 years old and from Abowaga village on Motorina Island, Misima, Milne Bay Province. You are the elder in a family of two. You are married with 4 children and only have a Grade 6 level education. You have no history of formal employment but earn your living from a chainsaw and outboard motor dinghy. You are a villager and a fisherman by trade. You are a member of the United Church.
7. In your address to the court, you said that you had no plan in what you got yourself into. You said what you did was out of suspicion of this strange device. You thought it was a bomb or an ordinary floater dropped by one of those illegal fishing ships or other ships passing through the passage. You said there was no explanation from the village government authorities or councillors, not even from other ward councillors about this strange device. You also said that there was nothing remaining on the device that could tell you that it belonged to NFA.
8. You said that you were just travelling to Motorina Island to celebrate the New Year when you came across the device which by then was nothing more than just the floaters.
9. You apologised to the court, to NFA, the community and the government for your action. You vowed to be more responsible in the future and to respect and protect any other devices in your area.
10. Finally, you pleaded for the return of your outboard motor engine which the police had confiscated.
11. In your behalf, Mr. Arua submitted that an appropriate sentence for you should be 1 year from which the time spent in custody – 8 months – should be deducted and the balance wholly suspended.
12. He submitted that this is not the worst type of the offence and is mitigated by the following factors:
13. Counsel then asked that your outboard motor engine held by the police and NFA be released.
14. Mrs. Gore, on the other hand, on behalf of the State submitted that an appropriate sentence for you should be around 2 years because of the value of the device, that its destruction deprived the whole community of the use of the device, that you had no appreciation for public property and that the offence is now very prevalent. These, she says outweigh your mitigating factors.
15. The offence is provided or prescribed by Section 444(1) in the following terms.
“444. Malicious injuries in general: publish in special case.
(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.”
16. So, what should be an appropriate sentence for you? Should it attract the maximum penalty? It is trite law that the maximum penalty is reserved for the worst instances of offending, that each case be treated on its own merit and that on a guilty plea, the maximum should not be imposed unless very compelling circumstances demand it.
17. I am of the view that your offence is not the worst type, however, an appropriate sentence will be imposed to reflect the degree of damage you caused to the FAD coupled with degree of your participation with others in destroying or damaging it.
18 But, before I get to that, let me consider a few cases that counsel cited to me to assist me in deciding what an appropriate sentence I should impose considering what other judges have imposed in similar cases.
19. I find the case of The State v Terea (2005) N2816 cited by counsel to be like your case. There, the offender, an officer of the Bougainville Administration wilfully and unlawfully damaged office equipment and fittings belonging to the administration with a screwdriver. He was angry with his superiors over what he saw as corrupt practices in the office, which the trial judge, Cannings J, after inviting evidence in rebuttal to the prisoner plea on allocutus, did not make any finding either way. His Honour, however, found that the cost of the damage would have been K2,000.00 and not K12,000.00 as stated in the prosecutor’s summary of the facts.
20. The offender was a first-time offender, pleaded guilty and expressed remorse and co-operated with the police. These were some of the mitigating factors found in his favour. But against time, the court found that the property he destroyed had direct benefit to the people of Bougainville, the offender was drunk and brandishing a screwdriver and had not done any tangible thing to make reparation for the damage.
21. He was sentenced to one year imprisonment which was wholly suspended without conditions two of which were that the prisoner performs community work for the Buka General Hospital and pay K2,000.00 to the Bougainville Administration.
22. In The State v Betty Kaime CR No. 1793 of 2002, (unnumbered and unreported judgment dated 13th November 2008 by Makail J, the prisoner damaged a police vehicle when she found her policeman husband in the vehicle with his girlfriend. She smashed the vehicle’s wind screen with a stone. Considering the factors in her favour, His Honour sentenced her to six months with conditions including restitution to the value of the damage done to the vehicle – K1,200.00.
23. In The State v Jan Tundobo & Ors CR No. 822 of 2008, (unreported and unnumbered judgment by Makail, J. Dated 10th December 2008), the prisoners had entered the office of a school principal armed with knives and axes and destroyed a computer, printer and printer cables, a scanner and photocopier. The loss to the school was K16,442.80. His Honour sentenced the prisoners to 1year imprisonment which he wholly suspended with conditions.
24. In The State v Telape (2009) N3815, the prisoner pleaded guilty to a charge of unlawfully damaging property contravening Section 444(1) and 444(9)(1) of the Code. The offender owned land on which a power pylon supplying electricity to Porgera Gold Mine was installed. He did not receive payments for the use of his land for some 10 years so to rectify the problem and get the authorities’ attention, he chopped down 2 power pylons. It cost the Mine K394,842.00 to re-erect the pylons and 7 days during which the Mine had to run on diesel generated power. Ellis J. considered this to be the worst kind of case for this offence and sentenced the prisoner to 7 years holding that the appropriate sentence should not only be determined by the conduct of the offender but also by the consequences of that conduct.
25. Let me now turn to your case. To arrive at an appropriate sentence for you, let me consider first those factors that operate in your favour. These are:
26. Against you, I find that the device was an expensive one which cost NFA some K22,000.00 and would have cost a lot more in installing considering that they had used a ship or vessel to do that. Further, the device was installed for the benefit of locals including yourself to improve fish stock by concentrating fish in one area to make it easier for fishermen like you to catch fish. The destruction of the device resulted in a direct loss to the local community by negatively impacting on food security and the economic benefits to them through fishing. The material in the depositions shows that the FADs were installed to mitigate the loss of income from Beche de mer when the moratorium on that fishery was imposed.
27. It is clear, therefore, that the consequences of the destruction of the FAD had a very negative impact on your island community. To that end agree entirely with what His Honour Ellis, J. said in The State v Telape (supra), that a sentence must not only take into account the offender’s conduct but also the consequences of that conduct.
28. The consequences of the FAD’s destruction are as I have alluded to above is for reaching. While it is a loss to NFA, it is a greater loss to the local people for whose benefit the device was installed in the first place. This, I take to be a significant aggravating factor against you.
29. While I do I agree that your particular offence and your contribution to the overall damage done to the device may be not as grave given the fact that others contributed more, the offence is nonetheless serious enough to warrant a sentence that must serve to deter you and exact upon you respect for valuable State assets that are provided by the State and its agencies such as NFA or our donor partners which every member of the recipient community must also protect.
30. The State invoked Sections 7 and 8 of the Code which basically means that I should hold you responsible also for the actions of all other people who contributed to damaging the FAD. I find myself not comfortable to accept that because it has not been shown to me from the material before me that you acted in concert with the others whoever they may be. So, I will hold you responsible only for the damage that you individually caused, i.e., by cutting the rope which I believe anchored the FAD.
31. The fact that the device may have seemed suspicious to you was not a reason for you to destroy it. I have seen the photographs of the device from the file, and it does look a little odd but why quickly conclude that just because it looks suspicious it must be destroyed? Should not curiosity lead one to enquire a little bit more? Being a simple uneducated villager does not equate to being stupid because we all have endowed in us the faculty to reason things out before we act. So, your behaviour, even if it was driven by suspicion that the device belonged to illegal fishing vessels, should not be easily accepted for how would you know for a fact that it was? On the contrary the letters “NFA” and “FAD” would have been clearly written in big bold letters on the damaged device. This is apparent from photographs on file of the FAD that was installed at Siagara where these acronyms are clearly shown together with the number of the device.
32. So, given all that, I feel that an appropriate sentence for you should be 1 year imprisonment. You have spent 8 months in custody awaiting trial - that I will deduct from your sentence. You are left with the balance of 4 months.
33. Should any of that be suspended? I think not because the greater interest of the people in your area which has been consequently affected by your action demands some deterrence so that in the future such assets that benefit the community and individuals in those communities are respected and protected.
34. Hence, you will serve the balance of your sentence – 4 months – at Giligili.
35. Finally, regarding your plea for the release of your outboard motor engine which the police and NFA have confiscated, in the absence of any objection by the State and any lawful justification for its confiscation in the first place, I order that the Police Station Commander on Misima, or if it is held elsewhere, the PSC of that Police Station immediately releases the said engine to your wife and family.
Sentenced and ordered accordingly.
__________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner
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