The State v Mapi Mack (2010) N4100

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 09 August 2010
• Citation: (2010) N4100
• Docket Number: CR. NO. 1271 OF 2008
• Court: National Court
• Year: 2010
• Judgement Number: N4100

Full Title: CR. NO. 1271 OF 2008; The State v Mapi Mack (2010) N4100

National Court: David, J

Judgment Delivered: 9 August 2010

N4100

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1271 OF 2008

BETWEEN:

THE STATE

AND:

MAPI MACK

Prisoner

Mendi & Tari: David, J.

2010: 11 & 15 June, 2 & 9 August

SENTENCE – arson – burning of two dump trucks – petrol used to set trucks alight - total loss was K2,496,000.00 - guilty plea – first time offender – offence committed while in company of others - demonstration of remorse and contrition – pre-planning - prisoner traditional villager, illiterate and lacks sophistication – isolated incident - prisoner has no means to restitute or pay compensation – de facto provocation arising from dispute over royalty payments – offence committed after National Court decision made adverse to prisoner and clan - deterrent sentence serving both as personal and general deterrence against other would be offenders required - sentence of eight years IHL – sentence partly custodial and non-custodial - ss. 19 & 436 (f) Criminal Code.

Cases cited:

The State v Ipu Samuel Yomb [1992] PNGLR 261

State v Akena Pawa [1998] PNGLR 387

The State v Seye Wasea Bukere (1999) N1848

The State v Andrew Yeskulu (2003) N2410

The State v Robin Warren (No 2) (2003) N2418

The State v Henny Wamahau Ilomo (2003) N2420

The State v Enni Matthew (No 2) (2003) N2563

The State v Prodie Akoi (2004) N2584

The State v Titus Kep (2004) N2616

The State v Bart Kiohin Mais (2005) N2811

The State v Peni Bilak (2005) N2866

The State v Bernard Bambai (2006) N3019

The State v Sylvester Heai Evore (2006) N3236

Emil Kongian v The State (2007) SC928

The State v Yunati Epa (2008) N3309

The State v James Wakis (2008) N3426

Counsel:

Messrs Joe Waine and Augustus Bray, for the State

Messrs Peter Kumo and Philip Kapi, for the Prisoner

SENTENCE

9 August, 2010

1. DAVID, J: The prisoner was indicted with two counts, one for attempting to unlawfully kill Steven Undula and Peamu Engu on 15 July 2008 at Kutubu contrary to s.304 (a) of the Criminal Code and the other for wwilfully and unlawfully setting fire (arson) to two motor vehicles on 15 July 2008 also at Kutubu contrary to s.436 (f) of the Code.

2. The prisoner pleaded not guilty to the first count. The State offered no evidence so the count was dismissed and the prisoner acquitted accordingly.

3. As to the second count, the prisoner pleaded guilty. Upon being satisfied that the evidence contained in the depositions supported the charge, I accepted the guilty plea and convicted the prisoner of the charge.

BRIEF FACTS

4. For purposes of arraignment, the following brief facts were put to the prisoner.

5. The prisoner is a member of the Kondo clan. He lives around Kutubu on the North West Moran land. Over the years, there has been a dispute over that land. The matter went before the National Court at Waigani as a civil matter. On 14 July 2008, the Court delivered a judgment in favour of granting the land to Perri clan. That meant that the benefits and royalties would therefore go to the Perri clan.

6. That evening, a meeting was conducted by a leader of the prisoner’s clan. The prisoner and others attended the meeting. At that meeting, they agreed to kill anyone that was on that particular land and burn any machine or equipment working on the Homa-Tari road.

7. The prisoner and the others then set out to carry out what was agreed to at that meeting. They were armed with a shotgun and a container of petrol and went to what is known as North West Moran 14.

8. When approaching North West Moran 14, the prisoner took out his shotgun and shot at one Steven Undula. Steven Undula in the main escaped unhurt, but suffered some facial injuries caused by pellets. The prisoner also shot at Peamu Engu, but missed him. These two are employees of Oil Search Ltd who were working at the time.

9. The prisoner then with the assistance of others chased the workers away, took the container filled with petrol and sprayed petrol all over two big trucks parked there and set them alight. The fire spread and eventually the two trucks were burnt down completely.

10. The value of each truck was over K1 million. Two of them would therefore be valued over K2 million.

PRISONER’S ANTECEDENTS

11. The prisoner has no prior convictions.

12. The prisoner is married with two young children and is aged about 33 years. According to the Pre-sentence Report, his parents are alive, but in the Record of Interview, the prisoner said his father died when he was a baby. He has ten other siblings. According to the Pre-sentence Report, it reports that the prisoner and his family all live at Beneria village, Komo/ Magarima District, but in the Record of Interview, he states that they now reside at Homa village, Komo/ Magarima District. He has received no formal education and is therefore illiterate. He had worked as a cleaner with Moro Development Corporation before where he earned about K140.00 per fortnight. He was living in the village as an ordinary subsistence villager up until this crime was committed. He is a member of the Seventh Day Adventist Church at his village.

ALLOCUTUS

13. On allocatus, the prisoner admitted to committing the crime. He said he was sorry for what he had done which was wrong and pleaded for the Court to have mercy and impose a lenient sentence. He asked the Court to consider that; he was a first time offender; he has pleaded guilty; he has cooperated with the police during their investigation; he was an illiterate, uneducated and unsophisticated traditional villager; he acted out of frustration on behalf of his people for the company operating four oil rigs on their traditional land taking so long to pay royalties due to them in the sum of K8 million; he had the right to do what he did on behalf of himself and his people being resource owners deprived of earning a legitimate return from the exploitation of their natural resource; and his action has brought about hardships to his family to whom he was sorry.

PRE-SENTENCE REPORT

14. To assist me in making a decision on the appropriate sentence for the prisoner, I directed that a Pre-sentence Report be compiled and filed by the Probation Service at the request of the prisoner’s counsel by or prior to the commencement of the Tari circuit starting on 2 August 2010. The Pre-sentence Report was compiled and filed within the period required and I am grateful to Martin Tongamp, Probation Officer, Mt. Hagen for attending to that. I have read the Pre-sentence Report and note the details in particular the recommendation that the prisoner is a suitable candidate for probation supervision hence a non-custodial sentence be imposed.

SUBMISSIONS BY THE DEFENCE

15. It was submitted for the defence that the Court take into account, in arriving at an appropriate sentence to impose in the present case, the following factors:

1. the prisoner pleaded guilty;

2. the prisoner is a first time offender;

3. the prisoner made admissions at the earliest opportunity;

4. the prisoner co-operated with police investigations;

5. the prisoner was an illiterate traditional villager;

6. the prisoner as a traditional landowner of a rich oil field in the country was driven by extreme frustration for the refusal by the developer or operator of the oil field to pay him and his people compensation or royalty in the sum of K8 million while the developer or operator was making mega bucks;

7. restitution was beyond the means of the prisoner as the total value of the trucks damaged was over K2 million;

8. that the value of the trucks damaged was just a drop in the ocean in monetary terms compared to the millions of kina earned by the developer or operator while the prisoner was locked up behind bars for the crime and during which oil extracted from his traditional land was being siphoned off.

16. It was further submitted that the Court strike a balance to be reflected by the sentence when considering the Pre-sentence Report in particular the recommendation for the release of the prisoner on probation as against the incapacity of the prisoner to effect restitution.

SUBMISSIONS BY THE PROSECUTION

17. The Court was urged to impose a custodial sentence between six and ten years. Mr. Bray for the State submitted that the presence of a number of aggravating factor warranted such sentence. These were; firstly, the action was prompted by a decision of the National Court which was not in favour of the prisoner and his clan hence amounting to contemptible behaviour; secondly, the action caused great loss to the victim because the total value of the two trucks was K2,496,000.00; and thirdly, the prisoners criminal conduct could act as a deterrence to potential foreign investment worth millions of kina detrimental to the economic development of the Southern Highlands Province and the country as a whole.

18. Mr. Bray also urged the Court to note three factors which operated against the prisoner and the recommendation for a non custodial sentence. Firstly, the Pre-sentence Report reports that the prisoner ordinarily has no means to restitute being a villager. Secondly, any thought by the prisoner of receiving royalties from the developer or operator of the oil field to effect restitution was incapable of materialising in view of the fact that the land for which...