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State v Yaka [2021] PGNC 200; N9051 (20 August 2021)

N9051

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 181 OF 2021

STATE

V

MATHEW YAKA

Waigani: Wawun-Kuvi, AJ
2021: 17 & 20 August

CRIMINAL LAW-Sentence-Guilty Plea-Wilful Damage, s 444(1) Criminal Code

Cases Cited

State v Gwanden CR No 1508 of 2017 published in 2020 in the Papua New Guinea sentencing database
State v Warur [2018] PGNC 438; N7545 (26 October 2018)
State v Dipsy [2017] PGNC 424; N8007 (14 September 2017)
State v Meckpii [2010] PGNC 99; N4079 (16 April 2010)
State v Tele [2004] PGNC 341
Kalabus v The State [1988] PNGLR 193

References

Criminal Code Ch 262

Counsel

Ms Mercy Tamate and Ms Elsie Kariko, for the State
Miss Nicole Kamjua, for the Offender

SENTENCE

20^th August, 2021

1. WAWUN-KUVI, AJ: “Since the time of Cain and Abel family disputes have been marked by the irrational and impulsive decision of those involved, the fierce battles which ensue, and the senseless destruction they cause.”^[1] The statement resonates true in the case of one Mathew Yaka (the offender). An irrational and impulsive decision to demand a measly K20.00 from his brother’s wife, led to an unnecessary violent confrontation and the senseless destruction of his brother’s food crops and vehicle. That senseless destruction has led to his present predicament. I am now left to decide what the appropriate penalty should be after his guilty plea.
   

The Facts

2. The facts to which the offender pleaded are all but too common in many domestic disputes in Papua New Guinea. The offender demanded K20.00 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.
   

Purpose of Sentencing

3. In considering the offender’s sentence, I remind myself of the purpose of sentencing which includes but is not limited to, considerations such as punishment of the offender, rehabilitation, specific and general deterrence, communicating clearly that the community and society does not condone the offender’s conduct and in cases of violent and serious offences for the protection of the community.
   

The Charge

4. The offender pleaded guilty to the charge of Wilful Damage pursuant to section 444 (1) of the Criminal Code.
   

Penalty

5. The maximum penalty is 2 years.

Submissions

6. Miss Kamjua for the offender submits for a sentence between 10 and 12 months. She contends that the time spent in custody of 10 months is sufficient considering other similar cases. And in the event the Court is inclined to impose a much higher sentence, she submits that the balance be suspended.
   
7. Ms Kariko for the State contends for a custodial sentence of 12 months. She submits that this is consistent with sentencing trends.
   
8. The comparative cases submitted by Ms Kamjua were of assistance but of course not binding on the exercise of my discretion. Whilst I have considered the cases submitted by Miss Kamjua, the relevant cases as I find are the cases of State v Dipsy [2017] ^[2], State v Meckpii [2010]^[3] and State v Tele [2004]^[4]. Ms Kariko relies on the same cases.
   
9. The other cases cited by Ms Kamjua involve substantial damage to property other than motor vehicles. The State v Betty Kaimei also submitted by Ms Kamjua, whilst involving damage to a motor vehicle is unreported.
   

Comparative cases

10. In State v Dipsy, 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 whist 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.
    
11. In State v Meckpi, 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.
    
12. In State v Michael Tele, 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.
    
13. More recently, in State v Gwanden^[5] , 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.
    
14. All of the cases are of assistance but are distinguishable in one aspect. All were vehicles that were operational. In the present case, I give the benefit to the offender that the vehicle was not operational. The Record of Interview more particularly the original tok pisin version sheds light that the vehicle was not running for a while. This is supported by the photographs in the depositions which clearly show that the vehicle is quite old, does not have both the registration and safety stickers and all the tyres are bald and flat. Not that this diminishes the criminality or excuses his conduct as one should not go about damaging other people’s properties operational or not. But it assists the offender in the sense that, the victim’s use of the vehicle was not adversely affected as in the foregoing cases.
    

Sentencing Factors

15. Before proceeding on to determine sentence, I again remind myself that sentencing is not an exact science, it is an exercise of discretion which involves the balancing of various factors against the peculiar circumstance of an offender’s case.
    
16. Some important factors include the offender’s character, age, education, intellectual capacity, nature and seriousness of the offence, the criminal intent, degree and extent of an offender’s involvement, extent of the injury or harm, the complainant or victim’s views, the existence of aggravating or mitigating factors, prevalence of offence, assistance given to police, pleas of guilty and time spent in custody.
    

Personal Antecedents

17. The offender is 33 years old and hails from Kiwi Village, Wabag, Enga Province. He completed his then community school education at Sari Community School in Wabag. He at some point left Enga and migrated to Port Moresby.
    
18. He then undertook welding courses at the Badili Vocational Centre between 2015 and 2017.
    
19. He gained employment with PNG WasteCo and worked as a welder and occasionally assisted with rubbish collection and disposal.
    
20. He is married with a 2-year-old son.
    
21. He was living at or near Mirigeda Farm, Central Province prior to his arrest.
    

Allocutus

22. The offender apologized to his brother for his actions. He pleaded for mercy in light of the fact that he has a wife and two-year-old son in his village.
    

Nature and Seriousness of the Offence

23. The offender has been charging with the wilful damage of his brother’s vehicle. Willful Damage is a serious offence in the sense that another person has expended money to acquire or build property.
    
24. It is also serious because the complainant is the offender’s brother.
    
25. In my view however, this case is not as serious as the comparative cases, as the vehicles were operational and significant hardship was caused to the victims when they were deprived of the use of the vehicles.
    

Complainant’s views

26. In the victim impact statement, the complainant states that he already sold the vehicle and does not want any form of restitution and compensation. He pleads for the offender to be restrained from having any further contact with him and his family. He does not want the offender to be sentenced to imprisonment.
    

Aggravating Factors

27. This was a domestic dispute that did not need to escalate to the level it did. The cost of the damage is also significant.
    
28. In terms of the State’s contention that a weapon was used, the State neither pleaded the use of a weapon in its indictment or alleged it in its brief facts. Whilst something was used to damage the vehicle, the State cannot rely on this as an aggravating factor as it has not provided any evidence to that effect. The moment when he used the bush knife to threaten his brother is factually distinct to the time when he damaged the vehicle. This is not to say that the offending is minimized but rather that the State is not permitted to place reliance upon it as an aggravating factor.
    

Mitigating Factors

29. An early plea of guilty is indicative of remorse. Berrigan, J in State v Warur [2018]^[6] adopted the statements of Kidu CJ in Kalabus v The State [1988]^[7], which reigns quite true in the present case. His Honour as he was then said:
    

“Remorse and contrition are factors weighed in the matter of sentence in favour of accused persons, particularly if they are manifested in a plea of guilty. Whether remorse or contrition are shown by a plea of guilty depends upon the time and circumstances in which the plea is advanced. The earlier the expression of remorse or contrition after the commission of the offence the more favourable it will be for the accused”.

30. The offender has demonstrated genuine remorse for his actions. This is supported by his request to police in the interview to communicate with his brother and the victim impact statement stating that he had been reaching out to apologize. He again apologized in Allocutus.
    
31. He made admissions to damaging the crops when interviewed and later at committal admitted to damaging the motor vehicle in his section 96 District Court Act statement. A plea that he has maintained.
    
32. What is significant from his guilty plea is that there is no direct evidence from the depositions that he was responsible for the damage. The evidence against him was circumstantial. I take this as a sign of him taking responsibility for his actions.
    
33. This is also the offender’s first offence.
    

Deterrence

34. This type of offence is far too common in Papua New Guinea especially domestic disputes. Family members damaging other family members’ properties in fits of rage. The custodial sentences that have been imposed by the Courts in relation to similar types of offences are indicative of society’s disapproval.
    
35. This could have been a simple matter concluded either by the family themselves, or even proceeded to the District Court; however, it is apparent from the victim impact statement and the statement of witnesses that there had been some animosity between the brothers prior to the incident. It is also apparent that the complainant although not wanting a custodial sentence does not wish to have further contact with his brother. He has sold the vehicle and has no desire for restitution or compensation.
    
36. It is hoped that the offender’s time in prison and loss of family, has taught him the valuable lesson that there are better ways to solve problems than to resort to violence. Especially so when the initial disagreement was over his sister-in-law not giving him K20.00.
    

Conclusion

37. In considering all the above factors the offender is sentenced to time spent in custody being 10 months.
    

Orders

38. The Orders of the Court are as follows:
    
    1. The Defendant is sentenced to 10 months imprisonment.
    2. The Pre-sentence custody of 10 months is deducted.
    3. In the event there are no pending charges the offender shall be released.

________________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence

^[1] Sara G. Forden
^[2]PGNC 424; N8007 (14 September 2017)
^[3] PGNC 99; N4079 (16 April 2010)
^[4] PGNC 341
^[5] CR No 1508 of 2917 published in 2020 in the Papua New Guinea sentencing database
^[6] PGNC 438; N7545 (26 October 2018) at paragraph 31
^[7] PNGLR 193 at 197