The State v John Telape (2009) N3815

• Jurisdiction: Papua New Guinea
• Judge: Ellis J
• Judgment Date: 09 December 2009
• Citation: (2009) N3815
• Docket Number: CR 1099 of 2009
• Court: National Court
• Year: 2009
• Judgement Number: N3815

Full Title: CR 1099 of 2009; The State v John Telape (2009) N3815

National Court: Ellis J

Judgment Delivered: 9 December 2009

N3815

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1099 of 2009

THE STATE

-v-

JOHN TELAPE

Porgera: Ellis J

2009: 8, 9 December

JUDGMENT ON SENTENCE

CRIMINAL LAW – sentence – wilfully and unlawfully destroy or damage property – offender destroyed two power pylons – disruption to Porgera gold mine and township - cost of rectification K394,842 – sentence based not only on conduct but also on consequences of conduct – need for deterrence – national interest – maximum sentence imposed – partial suspension due to mitigating factors – guilty plea – first offender - offender unlikely to be identified but for his admissions - Criminal Code, section 444

Cases cited:

State v Betty Kaime, CR 1793 of 2002, Minj, Makail AJ, (13 November 2008)

State v Jan Tundobo & ors, CR 822 of 2008, Mendi, Makail AJ (10 December 2008)

State v Steven Molu Minji & ors, CR 864 of 2008, Minj, Makail AJ (16 November 2008)

Counsel:

Mr J Waine, for the State

Mr P Kapi, for the Offender

9 December, 2009

1. ELLIS, J: This offender pleaded guilty to a charge that on 3 July 2009 he wilfully and unlawfully destroyed two steel power pylons the property of Barrick (Niugini) Pty Ltd which is the Manager of the Porgera Joint Venture. The charge was based on section 444 of the Criminal Code. Since those power pylons related to a mine, namely the Porgera gold mine, section 444(9)(i) operates to increase the maximum penalty for this offence from imprisonment for 2 years to imprisonment for 7 years.

2 For the purposes of sentencing, the brief was tendered and it became Exhibit A. The contents of that brief are as follows:

1 Information (ie charge)

2 Evidence in brief

3 Affidavit of Allan Waller

4 Statement of Moses Talibe

5 Statement of Pakume Hungape (handwritten and typed)

6 Statement of Aliape Belari (handwritten and typed)

7 Statement of Ayango Wagili (handwritten and typed)

8 Statement of Lumbria Yongahakali (handwritten and typed)

9 Affidavit of Gene Colville

10 Affidavit of John Bosco

11 Statement of Eric Mart

12-16 Five photographs

17 Statement of the offender

18 Record of interview

19 Antecedent report

3 From those documents, the State’s case may be summarised as follows. In order to provide electricity to the Porgera gold mine, and the surrounding community, it is necessary to run power lines over land. That requires the construction of pylons to hold those power lines above ground. Those pylons are held in position by wires called stay wires and cutting those wires is likely to result in the power pylons falling over as happened in this case. Where those pylons and stay wires are installed, access and occupation fees are paid to compensate local landowners for that use of their land. It is then for those local landowners to distribute those monies to the proper people.

4 Two of those steel power pylons, numbered 36.3 and 37.1, are situated near Mount Bee and near the Paijaka Village. On 3 July 2009 those two pylons were destroyed by this offender. At the risk of stating the obvious, the destruction of any one of those pylons will prevent electrical power being provided to the Porgera region, notably to the Porgera gold mine.

5 On 14 July 2009 reserve police officers and investigators travelled to Paijaka Village to conduct inquiries. The offender came forward and revealed that he “chopped down” those pylons as he was upset that he and his family had not received compensation payments for a number of years. It transpired that this offender and his family members had had their names removed from the list of landowners entitled to what might be called “power lines compensation”. As there is no suggestion that the relevant payments were not made, it must be noted that the problem lay not with the Manager of the Porgera Joint Venture but with the distribution mechanism. Indeed, a statement made by the offender’s mother reveals that the source of the problem was a transfer of land from the offender’s uncle to his aunt. Unfortunately, approaches to the Community Affairs Officer did not resolve the problem. Accordingly, this case serves to show what can happen when the Community Affairs Officers do not act quickly, accurately and fairly.

6 There is another aspect of the offender’s conduct which should be mentioned. The statement of Lumbiria Yongahakali suggests that the offender had no interest in the power pylon numbered 37.1 which means that his destruction of that tower reflected adversely on Lumbiria Yongahakali and his clan. Regardless of whether the offender had any legitimate interest in that power pylon, it is important to note that his conduct impacts adversely on the reputation of the people on whose land that power pylon was built.

7 It took only two days for negotiations to achieve the outcome which the offender sought, namely to have his name and the names of his family members restored to the list so that they could be included in future compensation payments. The offender appears to have been prepared to go to gaol in order to achieve his goal. Importantly, it was not necessary for the offender to “chop down” the power lines because there was a sensible mechanism which could have corrected the omission of his name and the name of his family members, within a few days, without the need to damage any power pylons. Hence, the offender’s objectives could have been achieved without him having to spend even one day in gaol.

8 The documents provided to the court reveal that the cost of restoring the power pylons is, when correctly added, K394,842. While the documents provided to the court did not reveal the cost of the consequences of the offender’s conduct, there can be no doubt that the cost of the damage his actions caused ran into millions of kina.

9 It is important to consider what happened after this offender cut the stay lines and base stand bolt with a hacksaw. On 3 July 2009, as soon as the power pylons were destroyed, the Porgera Mine Site was shut down. A helicopter had to be used to locate the cause of the problem. It was discovered that the power pylon numbered 36.3 fell to the ground when its stay wires were cut while the power pylon numbered 37.1 fell to one side but not to the ground. Power was cut to the mine for 7 days and it was necessary to use diesel powered generators during that time.

10 I note the good advice given to the offender by Moses Talibe, an elder in his village who suggested to the offender that he surrender after he admitted it was him who destroyed these power pylons. That only serves to reinforce the role which village elders can and should play in situations where the law has been broken. Indeed, the advice of village elders is worth listening to before any law is broken.

11 The photos included in the documents which became Exhibit A show not only the damage to the two power pylons but also the difficult terrain in which they are located.

12 When interviewed in relation to this matter, the offender admitted that it took him four months to build a tower made from bush materials alongside the power pylon numbered 37.1 and one month to build a similar tower alongside the power pylon numbered 36.3.

13 When provided with an opportunity to address the court after being found guilty of this offence, the offender said that compensation was paid in 1998 and that he sought to have the subsequent non-payment of compensation rectified. However, in March 2009 when the situation had not been remedied, he got annoyed and took steps which led to him destroying two power pylons. He concluded by saying: “I did this to attract the attention of the people responsible for paying compensation”.

14 On the basis of what appears in the Antecedent Report, the offender has no criminal history.

15 On behalf of the offender, Mr Kapi referred the court to three earlier decisions of the National Court, considered below. He admitted that the offence was serious by reference to the repair cost but submitted there were mitigating factors, namely the plea of guilty, co-operation with the police and the circumstances which lay behind the offender’s conduct. Mr Kapi submitted the appropriate range for sentencing purposes was imprisonment for 2 to 3 years less time which the offender has already spent in custody. The court was also reminded by Mr Kapi that the offender voluntarily surrendered in circumstances where, had he not surrendered, he might not have been detected. It is convenient to here note that as the offender has been in custody since 9 July 2009, he has spent 5 months in custody.

16 There appear to be only a small number of National Court decisions which have considered what sentence should be imposed for conduct caught by section 444.

17 State v Betty Kaime, CR 1793 of 2002, Minj, Makail AJ, (13 November 2008) was a case caught by section 444(1) which meant the maximum penalty was imprisonment for two years. It involved K1,200 worth of damage to a police vehicle for which there had been full restitution prior to sentence. Having regard to the circumstances of the offence and the circumstances of the offender, a sentence of imprisonment for 6 months, wholly suspended, is understandable. However, the circumstances of that case pale into insignificance when compared with this...