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State v Tamu [2024] PGNC 355; N11029 (9 October 2024)

N11029

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 26 & 27 OF 2024

STATE

V

DONALD TAMU & NGIBE MINAPE

Waigani: Wawun-Kuvi J
2024: 26th July, 4th September & 9th October

CRIMINAL LAW–SENTENCE –KIDNAPPING FOR RANSOM- section 354(1)(a)(i) of the Criminal Code – Guilty plea –Offenders and others entered a worksite at Moran Wellhead and kidnap workers-Workers were detained in a hut in the bush and subjected to threats of violence-Victims detained for the purpose of procuring K5 million from the Government of Papua New Guinea, the Mineral Resources Development Company and the Department of Petroleum and Energy-What is the appropriate penalty?

Cases Cited

Public Prosecutor v Goina & Others [1982] PGSC 4; SC230
Lawrence Simbe v The State [1994] PNGLR 38
Lialu v The State [1990] PNGLR 487
State v Hulkande [2023] PGNC 481; N10617
State v Ningis & Anor [2013] PGNC 119; N5331
State v Padnoleen Inji (2016) unnumbered decision, published on PNGLIN delivered on 26 July 2016
State v Kapris & 11 Others [2011] PGNC 51; N4305

Legislation
Criminal Code Ch 262
Criminal Code (Amendment) Act 2013 (No. 6)
Criminal Justice (Sentences) Act 1986

Counsel
J Siminji, for the State
D Kayok, for the offender

DECISION ON SENTENCE

9^th October 2024

1. WAWUN-KUVI J: Donald Tamu and Ngibe Minape are far from home. The prison fences in Bomana, located in the National Capital District, starkly contrast the hinterlands of Komo-Hulia in Hela Province. They find themselves in this situation, not due to an unforeseen and random turn of events but because their desire for monetary gain drove their decision to kidnap four workers at the Moran wellhead site.
   
2. The events of 21 September 2022 will remain etched in the minds of all involved. Every day in prison will serve as a reminder to the offenders of their actions and the consequences that followed, while the victims and their families will continue to carry the trauma.
   
3. It might have been an ordinary day for the site workers. However, it was anything but ordinary when, around noon, the offenders and other men from nearby villages breached the wellhead parameters. The men harassed workers and looted properties. The actions stemmed from grievances over benefit sharing. They assaulted and forcefully removed four workers, including two contracted security guards and two Haliburton employees, from the work site. They took the workers to a village and detained them in a hut. They threatened to kill the workers if they attempted to escape from their captivity. Donald Tamu revealed to the workers that their detention was because the villagers wanted their share of K5 million from the government, the Mineral Resources Development Company, and the Department of Petroleum and Energy. They detained the workers until 25 September 2022, when they released them.
   
4. Police subsequently apprehended Donald Tamu, Ngibe Minape, and one other person. The other person has since died in prison pending hearing of the case. Donald Tamu and Ngibe Minape have pleaded guilty to the charge of Kidnapping for ransom under s 354(1)(a)(i) of the Criminal Code.
   
5. I must now decide the appropriate penalty.

Maximum Penalty

6. The maximum penalty has been increased from 14 years imprisonment to life imprisonment without remission and parole because of legislative amendments to the Criminal Code in 2013 (see s 4 of the Criminal Code (Amendment) Act 2013 (No. 6).
   
7. However, the amendment did not affect s 354(2) which states:
   

(2) If the person kidnapped has been set at liberty without having suffered grievous bodily harm the offender is liable to imprisonment for a term not exceeding 10 years.

8. The law is that the offender is sentenced according to the facts that he has pleaded guilty to. The prosecution has not alleged that the persons kidnapped suffered grievous bodily harm. It follows that the maximum penalty is 10 years imprisonment.
   
9. The maximum is reserved for the worst case: see Goli Golu v The State [1979] PNGLR 653.
   

Personal Antecedents

Donald Tamu

10. Donald Tamu is 40 years old and hails from Hela Province. He is a member of the Catholic Church. He is married with five children. He has had minimal education. He is the landowner chairman.

Nigbe Minape

11. Ngibe Minape is 23 years old and hails from Hela Province. He is a member of the Catholic Church. He is single and has had some form of education. He is a landowner.
    

Allocutus

Donald Tamu

12. The offender gave a lengthy Allocutus explaining the reasons for committing the offence. He explained that the victims were kidnapped so that the government and the relevant state institutions would give them their share of K5 million. He stated that he is the landowner chairman, and he ensured that the victims were not physical harmed and were fed. He apologised to the victims. He has asked for leniency.
    
13. The Allocutus was more focused on the reasons for committing the offence rather then being remorseful for the actions of kidnapping and holding innocent lives at ransom. The men that were kidnapped were not government employees and had no issues with the offenders. There is no genuine remorse.

Ngibe Minape

14. The offender apologised to the victims and their families. He also apologised to his own family.
    
15. I observed the offender, he appreciates the gravity of his actions and has apologised for what he has done. He is remorseful.

Appropriate range

16. The prosecution has submitted for a range between 7 to 10 years imprisonment while the defence have asked for a fixed term of 4 years imprisonment.
    
17. Considering the differences in the appropriate range, I look towards relevant and comparable cases for assistance.
    
18. Counsel submitted the following comparable cases:
    
19. State v Hulkande [2023] PGNC 481; N10617, Kangwia J: The offender pleaded guilty to two counts of kidnapping for ransom. The offender's wife is the aunt of the two kidnapped children. The offender lured the brothers with flour balls and held them captive. He demanded a ransom for their release. The police arrested him and returned the juveniles to their care after 16 days in captivity. He was sentenced to 4 years imprisonment for each count and the sentences were made concurrent.
20. State v Ningis & Anor [2013] PGNC 119; N533, Salika DCJ (as he then was): Following a trial, the offenders were convicted for 10 counts of kidnapping for ransom and one count of robbery. They held up the victim and her coworkers at a microfinance branch, then took them as hostages at the bank manager's house, along with her family. The offenders then robbed the bank of K50,000 and released the hostages. The offenders were sentenced to 5 years each for kidnapping for ransom and 12 years for robbery. The sentences were made concurrent as they arose out of the same series of events.
    
21. State v Kapris & 11 Others [2011] PGNC 51; N4305 Cannings J: The offenders were convicted following a trial. The offenders detained bank staff and their families to rob the bank. They released the hostages after successfully robbing the bank. The sentences ranged between 7 and 9 years and were made concurrent to other charges.
    
22. In addition to the cases submitted by counsel I have also found the following cases:
    
23. State v Padnoleen Inji (2016) unnumbered decision, published on PNGINLIN delivered on 26 July 2016, Neil J: The offender pleaded guilty. He was 16 at the time of the offence. He was with other juveniles. They kidnapped a woman and her four-year-old daughter outside of the child’s school. They released the mother and demanded the father to pay K20, 000 for the release of his daughter. The money was paid early next morning, and the child was released to her parents. She was 4 years old and held for 11 hours. Following a man hunt by police and security personal, the accused surrendered a lawyer from public solicitor who negotiated his surrender to police. The offender was 18 at the time of his conviction. He was sentenced to 5 years imprisonment.
    
24. Public Prosecutor v Goina & Others [1982] PGSC 4; SC230: The offenders stopped a truck at night, driven by a teacher. They demanded to be driven in the opposite direction, threatening the driver and passengers. The offenders assaulted the driver. The offenders were affected by alcohol. Goina and Vele who were identified as the main offenders were initially sentenced to 18 months imprisonment. Leva and Wari were sentenced to 12 months imprisonments for their lesser role. On appeal by the Public Prosecutor for inadequately on sentence the Supreme Court considered that a sentence of 2 years imprisonment was appropriate. In considering that the offenders were released after serving 6 months, Goina and Vele were sentenced to an additional 18-month imprisonment and Leva and Wari to an additional 12 months.
25. The sentence range demonstrates that in aggravated cases where there are multiple offenders, threats of violence and the offenders armed with weapons the sentence is between 5-9 years.

Culpability

26. The offence was planned and premediated. The offenders were part of a group of men who entered the work site with the specific task of kidnapping workers for ransom. The men were taken off site and detained for several days. Ngibe Minape was armed with a stick and threatened the workers. Donald Tamu gave directions to others and informed the victims of the reason for their detention. They were not mere observers but each actively participated. These matters demonstrate that each offender had a high degree of culpability.

The Effect on the Victim

27. The prosecution was able to obtain the victim-impact statements of two of the victims. They were both under significant mental and emotional stress during the ordeal. They feared that the men would kill them. They now have recurring nightmares and find difficulty relating to their family. Recalling the events overwhelms them with emotions. They have returned to work but live in a heightened state of alterity, preferring to work at the main site rather than off-site. The ordeal has significantly affected each of them, resulting in changed personalities.
    

Mitigating and Aggravating Factors

28. I have carefully considered the submissions and accept in mitigation that the offenders are first time offenders with no prior convictions, they have cooperated with police and made admissions, they have pleaded guilty saving the victims the further trauma of a trial and they have expressed remorse for their actions.
    
29. In aggravation was that the victims were assaulted and threatened with further violence. They were detained for four days. The offenders were in a group. The group was armed with weapons. Ngibe Minape was armed with a stick. The offenders’ grievance was with the government and the men taken were employees of private companies who had no issues with the offenders.

Consideration

30. The crime of kidnapping for ransom under s 354 is a serious offence that entails unlawfully depriving an individual of their freedom for an extended period using violence or threats of violence, all for personal gain, whether in the form of money or otherwise. The effects on the victims and their families are significant and they are left with lifelong trauma.
    
31. While the act of kidnapping for ransom has evolved, a new trend has emerged, one that involves holding the government and state institutions hostage. This has been evidenced by landowners cutting off essential services like water and electricity, and more recently, the obstruction of the Kokoda Track. Additionally, closer to home for the prisoners is the detention of prison officers and their families at Buiebi Prison in the Southern Highlands Province in August of this year. These instances highlight the seriousness of this evolving trend and the need to curb it in its infancy. There are proper, legitimate and lawful means to resolve grievances which should be encouraged rather than resorting to acts of violence or threats of violence.
    
32. The Supreme Court's statements in Public Prosecutor v Goina & Others [1982] PGSC 4; SC230 regarding the offence of kidnapping for ransom, although made 42 years ago, remain as relevant today as they were then:

“Whilst the facts do not disclose that this is a kidnapping in the popular sense, in that the victim was deprived of his liberty until a ransom was paid, it was in our view a very serious crime in which innocent persons were threatened with death and were assaulted and forced to give into those demands containing threats of injury. It was an extremely bad case carried out by a gang on a public road and made worse by the fact that many children were placed in fear.

Whilst it is not shown that there was any error of principle or of law or fact by the learned trial judge it is our view that the sentences are so inordinately low when considered in relation to the offence and the circumstances of the case that they are manifestly inadequate. They do not in our view reflect the seriousness with which the trial judge himself viewed the offences.

This is the first case of this type which has come to our attention. In our view the offence is not dissimilar to that of robbery with violence in company and other offences involving violence against the person.

The deterrent aspect of punishment is of primary importance in cases of this kind. The sentence should demonstrate to others tempted to engage in such lawlessness involving violence that the punishment to be imposed will be calculated to protect society from the deliberate attack made upon it.

We are mindful of the increase in crimes of violence and the widespread public concern about such offences. Such conduct will be met by firmness on the part of the Courts and we give warning that sentences will increase substantially. This is particularly so where such crimes are committed by gangs.”

33. Having given thought to the relevant considerations in the foregoing paragraphs which include the personal antecedents, allocutus, the comparable cases, the offender’s culpability, the mitigating and aggravating factors, the needs for specific and general deterrence, the roles of each offender, they are both sentenced to 6 years imprisonment for each count. Since the counts arise out of the same event, the sentences are made concurrent, and each offender shall serve 6 years imprisonment.
    
34. The offenders have been in custody since 14 October 2022. They have been in custody for 1 year, 11 months, 3 weeks and 5 days. Pursuant to s 3(2) of the Criminal Justice (Sentences) Act 1986, I deduct the period spent in custody before sentence. The offenders will serve the balance of 4 years and 2 days.
    
35. I have considered whether the sentence should be suspended. There are no materials before the court that support suspension. While I accept that a pre-sentence report could not be obtained because of the location of the offender’s village, even it were available the offence is a serious and violent offence and suspension is not appropriate. A clear message must be communicated that society does not condone such behaviour.
    
36. The offenders shall serve the full terms of 4 years and 2 days.
    
37. As to the prison, with the closure of Buiebi, the closest prison is Baisu. The correctional services shall transfer the offenders to serve their sentence at Baisu in Western Highlands Province. In the event, the situation at Buiebi improves then they can be moved to serve their sentence at Buiebi in Southern Highlands.
    

Orders

38. The Orders are as follows:

Donald Tamu

1. The offender is sentenced to 6 years imprisonment for kidnapping for ransom under s 354(1) of the Criminal Code contained in count 1 of the indictment.
2. The offender is sentenced to 6 years imprisonment for kidnapping for ransom under s 354(1) of the Criminal Code contained in count 2 of the indictment.
3. The offender is sentenced to 6 years imprisonment for kidnapping for ransom under s 354(1) of the Criminal Code contained in count 3 of the indictment.
4. The offender is sentenced to 6 years imprisonment for kidnapping for ransom under s 354(1) of the Criminal Code contained in count 4 of the indictment.
5. The sentences are made concurrent, and the offender shall serve 6 years.
6. Pursuant to section 3(2) Criminal Justice (Sentences) Act 1986 the pre-sentence custody period of 1 year, 11 months, 3 weeks and 5 days is deducted.
7. The offender shall serve the balance of 4 years and 2 days.
8. The offender shall serve his sentence in light labour at Bomana Correctional Institution, from there he shall within four months from the date of sentence, be transferred to Baisu Correctional Institution, Western Highlands Province.

Ngibe Minape

1. The offender is sentenced to 6 years imprisonment for kidnapping for ransom under s 354(1) of the Criminal Code contained in count 1 of the indictment.
2. The offender is sentenced to 6 years imprisonment for kidnapping for ransom under s 354(1) of the Criminal Code contained in count 2 of the indictment.
3. The offender is sentenced to 6 years imprisonment for kidnapping for ransom under s 354(1) of the Criminal Code contained in count 3 of the indictment.
4. The offender is sentenced to 6 years imprisonment for kidnapping for ransom under s 354(1) of the Criminal Code contained in count 4 of the indictment.
5. The sentences are made concurrent, and the offender shall serve 6 years.
6. Pursuant to section 3(2) Criminal Justice (Sentences) Act 1986 the pre-sentence custody period of 1 year, 11 months, 3 weeks and 5 days is deducted.
7. The offender shall serve the balance of 4 years and 2 days.
8. The offender shall serve his sentence in light labour at Bomana Correctional Institution, from there he shall within four months from the date of sentence, be transferred to Baisu Correctional Institution, Western Highlands Province.
   

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender