The State v James Dar

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 21 October 2015
• Citation: (2015) N6106
• Court: National Court
• Year: 2015
• Judgement Number: N6106

Full : CR NO 1229 OF 2014; The State v James Dar (2015) N6106

National Court: Makail, J

Judgment Delivered: 21 October 2015

N6106

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1229 OF 2014

BETWEEN

THE STATE

AND

JAMES DAR

Minj: Makail, J

2015: 19th & 21st October

CRIMINAL LAW – Sentence – Wilful damage to property – Damage to fuel pumps of fuel service station – Offence aggravated by mob attack – Raid by tribesmen – Prisoner was ring leader – Retaliatory attack – One of tribesmen assaulted – Substantial property loss – Loss in excess of K140,000.00 – No restitution made – Prevalence of offence – Matters in favour of prisoner included being a first offender – Remorseful – Presence of de facto provocation – Suspended sentence imposed with conditions – Criminal Code – Sections 19 & 444(1) – Criminal Law (Compensation Act, 1991 – Section 5(3)(b) – Probation Act – Sections 16, 17(1)(c) & 18(1)(b).

Cases cited:

The State v. Balthazar Basan & Herman Sarea (2012) N4896

The State v. Betty Kaime: CR No 1973 of 2002 (Unnumbered & Unreported Judgment of 13th November 2008)

The State v. Jackson Nimai (2008) N3355

The State v. Jan Tundobo & 4 Ors: CR Nos 822-825 & 950 of 2008 (Unnumbered & Unreported Judgment of 10th December 2008)

The State v. Lucy Kaman & Another: CR Nos 815 & 816 of 2013, a decision by Poole J of November 2014

The State v. Steven Molu Minji: The State v Didi Gelwak Sakol (No 2) (2009) N3794

Counsel:

Mr. P. Tengdui, for State

Mr. P. Moses, for Prisoner

SENTENCE

21st October, 2015

1. MAKAIL, J: After a trial, the prisoner was found guilty of wilfully damaging property, an offence under Section 444(1) of the Criminal Code. He was the ring leader of a group of men and incited them to damage fuel pumps of FM service station owned by Jimi Valley Trading (“JVT”) at Banz town on Saturday 04th January 2014 which made him a principal offender under Sections 7 and 8 of the Criminal Code.

2. He led his tribesmen from the Kapankuk, Anskuk and Kumunka clans or in short KNK tribe as is commonly referred to by locals in the Banz area to FM service station on the given date and damaged the fuel pumps. The total value of damage is said to be over K140,000.00.

3. This offence carries a maximum penalty of a term of 2 years imprisonment. The maximum penalty is usually reserved for the worst case. Depending on the facts of a given case, the Court has discretion under Section 19 of the Criminal Code to impose a lesser sentence.

4. On his allocutus, the prisoner apologised to the Court and the victim Mr Robert Mundi for what he did and accepted full responsibility for his actions. He pleaded for leniency and asked for a non-custodial sentence because of his three children who needed his support. The eldest son is attending Grade 9 and will need his support to pay his school fee of K670.00 and other expenses. Likewise his second son who is attending Grade 5 will need his support so as his daughter who is doing Grade 4.

5. The other reason he gave was that the living conditions at the prison facilities are unfit for human habitation. There is a rise in diseases such as malaria, typhoid and pneumonia. The rise of these diseases is exacerbated by the long dry spell experienced by the country at this point in time and poses a real threat to his health. He also blamed the police for the damage.

6. His counsel Mr Moses first gave his personal details. He is married with three children. He does not have a formal employment but prior to the commission of the offence, was a police reservist on a voluntary basis. He is the last of two siblings. His father is dead and his mother is still alive but very old. He is a member of the Prayer Tower Ministry Church. He has been in pre-trial custody for 6 months, 3 weeks and 3 days.

7. Secondly, his counsel submitted that the matters favouring him are that he is a first offender, is remorseful and that there was presence of defacto provocation. The prisoner and his tribesmen were provoked when one of their tribesmen was assaulted the night before by Mr Mundi, the proprietor of the fuel service station and retaliated in the way they did after they did not find him to settle the dispute. This is a strong mitigating factor which significantly reduces the seriousness of the offence and would attract a lesser penalty than the maximum. Finally, restitution is not appropriate because police were also involved in the raid of the property and the proprietor Mr Mundi has sued the police and the State for the loss. If the claim is successful, it would amount to unjust enrichment on the part of Mr Mundi if the Court were to also order the prisoner to make restitution to Mr Mundi.

8. Thirdly, counsel referred to past decided cases such as The State v. Betty Kaime: CR No 1973 of 2002 (Unnumbered & Unreported Judgment of 13th November 2008); The State v. Jan Tundobo & 4 Ors: CR Nos 822-825 & 950 of 2008 (Unnumbered & Unreported Judgment of 10th December 2008); and The State v. Steven Molu Minji: The State v Didi Gelwak Sakol (No 2) (2009) N3794 and submitted that the Court imposed sentences ranging from a term of 6 months to one year imprisonment and except for Steven Molu Minji & Ors, in the other two cases, the Court suspended wholly the sentences on strict conditions one of them being for the offenders to make restitution.

9. Counsel also referred to a recent case of The State v. Lucy Kaman & Another: CR Nos 815 & 816 of 2013, a decision by Poole J of November 2014 during a court circuit to Minj where he submitted his Honour sentenced one offender to 18 months and the other to 20 months imprisonment respectively for wilful damage to property. His Honour suspended wholly the sentences with no order for restitution. That was a case where the female offenders were part of a group of men who raided a block of land with coffee trees and food crops. Livestock were also poisoned with insecticide. An independent valuation put the loss at over K200,000.00.

10. Taking all the matters favouring the prisoner and the sentences imposed by the Court in those past decided cases into account, counsel submitted that an appropriate sentence would be a term of one year imprisonment. Time spent in pre-trial custody of 6 months, 2 weeks and 3 days should be deducted and the balance of the term should be suspended and the prisoner be placed on good behaviour bond.

11. Counsel for the State Mr Tengdui submitted that the offence is aggravated by a number of factors. First, it was a mob attack. It was a raid by the prisoner’s tribesmen and he led them. Secondly, the prisoner was the ring leader. Thirdly, it was a retaliatory attack after one of their tribesmen was assaulted. Fourthly, their actions resulted in substantial property loss. The monetary loss is in excess of K140,000.00. The damaging of the fuel pumps has crippled the business operations of the victim. Fifthly, no restitution was made by the prisoner and his tribesmen and finally, the Court must note the prevalence of the offence. In the context of damage to a business property, it hinders and undermines the economic development and progress of the newly established Jiwaka Province.

12. Counsel further submitted that the presence of aggravating factors outweighed the mitigating factors and supported a custodial sentence of a term of 18 months imprisonment.

13. I agree with Mr Tengdui’s submission that the aggravating factors outweigh the mitigating factors. This was a case of a mob attack on a property. The fuel pumps that were damaged generated money for the victim’s business. Mr Mundi’s business is now crippled or worse still, over unless it is insured and the insurer may come to his rescue, to resuscitate his business or if he is able to find money elsewhere, to start it all over again.

14. Mr Moses asked me to find that the prisoner and his tribesmen were provoked because one of their tribesmen was assaulted by Mr Mundi and they reacted in the way they did. I reject this submission. What they did was totally irresponsible and uncalled for. It was also a cowardly act. They felt strong and intimating when in a group so that they could force the other side to submit to their demand. That is not how a conflict should be resolved.

15. If they were genuine, they would have reported the assault to the police and left it to the police to deal with it. Taking the law into their own hands only leads to more trouble. As the saying goes “violence breeds violence.” As a consequence, the victim has lost the fuel pumps. He cannot operate his fuel service station business. The flow on effect is his staff members are rendered jobless and he generates no income. As to the general public and motor vehicle owners, unless there is an alternative fuel service station nearby, there will be none in Banz town for them to refill their motor vehicles and other use and will have to travel further to get fuel. So the impact of his actions is enormous.

16. The submission made by Mr Tengdui about such unlawful actions hindering and undermining economic development and growth in this province is a significant point and worthy of further comment. If Jiwaka Province is to be truly independent politically,...