The State v Martin Sahin Terea (2005) N2816

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 March 2005
• Citation: (2005) N2816
• Docket Number: CR No 31 of 2001
• Court: National Court
• Year: 2005
• Judgement Number: N2816

Full Title: CR No 31 of 2001; The State v Martin Sahin Terea (2005) N2816

National Court: Cannings J

Judgment Delivered: 22 March 2005

N2816

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 31 0F 2001

THE STATE

V

MARTIN SAHIN TEREA

BUKA : CANNINGS J

15, 16, 22 MARCH 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Division VI.2, Injuries to Property – Section 444, malicious injuries in general: punishment in special cases – sentence on plea of guilty – offender a public servant – arrived at workplace, drunk, armed with screwdriver – damaged office equipment and fittings with screwdriver – no weapons used or aggravated physical violence against other persons in office – no physical injury –isolated incident – offender did not surrender – cooperated with police – no trouble caused since the incident – nothing tangible done towards repairing his wrong – mitigating claims made in allocutus that may be significant mitigating factors for sentence – claims not addressed in prosecutor’s summary of facts to which accused pleaded guilty – claims not admitted by prosecution – prosecution permitted to call rebuttal evidence – partial acceptance of claims in allocutus – determination of maximum penalty – expression of remorse – not a youthful offender – educated person – starting point for head sentence – identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – sentence of 1 year, all of which shall be suspended on satisfaction of prescribed conditions.

Cases cited

Doreen Liprin v The State (2001) SC673

The State v Aaron Lahu (2005) N2798

The State v Eric Vele (2002) N2252

L Rangan for the State

L Siminji for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to the offence of wilful and unlawful damage to property.

BACKGROUND

Incident

The incident giving rise to the charge took place at Buka town, Bougainville, on the morning of 14 May 2001. It was alleged that the accused went to his office in the Bougainville Provincial Administration armed with a screwdriver and deliberately damaged office equipment and fittings.

Indictment

On 15 March 2005 he was brought before the National Court and faced the following indictment:

Martin Sahin Terea of Lontis, Buka, Bougainville, stands charged that he … on the 14th day of May 2001 at Buka town … wilfully and unlawfully damaged a photocopying machine, one printing machine, an air-conditioning machine, the main door and reception counter of the office of the Division of Information, Culture and Tourism, Bougainville Provinical Administration, the property of the Bougainville Provincial Administration.

The indictment was presented under Section 444(1) of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

The accused works with the Bougainville Provincial Administration as a graphic artist. He works in the Division of Information, Culture and Tourism. About 9.30 am on Monday 14 May 2001 he went to his office, evidently angry with his superiors about something. He was carrying a screwdriver. He used the top of the screwdriver to pierce holes in the photocopier, a printer and the air-conditioning unit and in the main door and the reception counter. He intended to cause that damage. There was no lawful justification or excuse for what he did.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the offender.

ANTECEDENTS

The offender has no prior convictions.

ALLOCUTUS

I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows.

I stand here for being honest. I was frustrated because of my honesty. I knew there were suspicious things going on in the office. It was some form of corruption. It had a big impact on the office I worked in. Firstly the machines, computers and printers were being used to make money to go into a trust account that the office had. The purpose of the trust account was to defray the costs of newsletters and campaign materials etc. It was known in the office that money we made for the trust account was being used by my superiors for travelling allowances, airline tickets and accommodation out of the province. This was not proper expenditure. The second thing that contributed to my frustration was that some officers were using one of the printing machines to make money for themselves. These were private jobs. The money was not put into the trust account but into their own pockets. I mentioned these things to my superior, the Assistant Secretary. But things never improved. I suggested to my superior in three staff meetings that the officers should reimburse funds they had used to travel and for other unauthorised purposes. Another source of frustration was that my privileges to commute on the administration bus were revoked. This had a great effect on my job. It affected my family and me considerably. It meant I had to travel on a PMV to get to and from work. To travel from my village to town is a cost of K10.00. So every day I travelled to and from work I had to pay my own transport of K20.00. From my salary I was left with K97.00 for the family to live on. This made it impractical for me to work effectively. It forced me to come to work only a couple of days each week. This led to my suspension for two months. This was unfair and it really affected me. I have also disputed the cost of the damage I am alleged to have caused from the very beginning. They have calculated the cost at more than K12,000.00, based on the replacement value of the equipment. But much of the equipment was in a poor state of repair or had no economic value. This is my first time to do such a thing and my first time to appear before the court. I honestly apologise to the State for acting in such a way. If I am to be convicted I trust that, given what I have said, I will help the court make a favourable decision. I am still employed as a graphic artist and I want to continue to be employed. As to the items I damaged, the air-conditioning unit was not the property of the State. It came from Arawa in 1991. It was actually the property of Bougainville Copper Limited. Considering its depreciation and that it was not the property of the State, it was not worth anything to the Administration. In any event it has been repaired. It has been tested OK and it is back in the office. It cost K506.00 to repair but only K219.00 of that related to the damage I caused. The rest would be labour. So I do not agree with the cost of the damage to the air-conditioning, which others have estimated to be K1,700.00. As for the two printers, the printer I actually damaged was purchased in 1995. It is Macintosh compatible. It was only used for three years. After that it was incompatible and of no use. Since 1998 it has sat idle in my office. Microsoft has been dominating the market and the printer is practically useless. The photocopier was given to the office by AusAID. The only part I damaged was the display screen. The remaining items I damaged – the door and the counter – suffered very, very minimal damage. The estimates provided are for replacement of the door and the counter, ie brand new items. That is unfair.

DEALING WITH CLAIMS IN ALLOCUTUS THAT WERE NOT IN PROSECUTOR’S SUMMARY

Claims in mitigation

Before I heard submissions from counsel I pointed out that the offender had made claims in his allocutus which, if accepted, may be significant mitigating factors to take into account on sentence. He gave reasons for his frustration, alleged that there was corrupt conduct happening in the office and challenged the costs on the damages that he caused.

How should the court deal with those claims. Ignore them? Accept them at face value? Or give the prosecution the chance to rebut them? In a recent Kimbe case a similar issue arose in an armed robbery case. A man pleaded guilty but in his allocutus made a number of claims (that he was only involved in the robbery by accident and he played only a small role in the gang that robbed a house and store and he got little out of it) which, if accepted, would mitigate the sentence (The State v Aaron Lahu (2005) N2798, National Court, Cannings J). As I could find no rule of law appropriate I formulated a rule as part of the underlying law. It applies when a person makes a claim in their allocutus that might be a mitigating factor, when the claim has not been addressed in the prosecutor’s summary of facts, to which the person has pleaded guilty. The rule is:

· The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.

· Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.

· If the judge detects any significant mitigating matters in the allocutus that were not put to the accused in the prosecutor’s summary of facts the judge should ascertain...