The State v Steven Molu Minji, Simon Koso Kerenga, John Minji, & James Kauboi AND CR NO 864 OF 2008; The State v Didi Gelwak Sakol (No 2) (2009) N3794

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 20 November 2009
• Citation: (2009) N3794
• Docket Number: CR NO 290 OF 2008
• Court: National Court
• Year: 2009
• Judgement Number: N3794

Full Title: CR NO 290 OF 2008; The State v Steven Molu Minji, Simon Koso Kerenga, John Minji, & James Kauboi AND CR NO 864 OF 2008; The State v Didi Gelwak Sakol (No 2) (2009) N3794

National Court: Makail, J

Judgment Delivered: 20th November 2009

N3794

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 290 OF 2008

THE STATE

v

STEVEN MOLU MINJI, SIMON KOSO KERENGA, JOHN MINJI, & JAMES KAUBOI

AND

CR NO 864 OF 2008

THE STATE

v

DIDI GELWAK SAKOL

(No 2)

Minj: Makail, J

2009: 18th & 20th November

CRIMINAL LAW - Sentence - Wilful damage of property - Damage to private property - Chopping of coffee trees - Mob raid - Substantial monetary loss - No offer of apology - No form of restitution - Not an isolated incident - Convicted after trial - First offenders - Co-operation with police investigations - No injuries caused to other persons - No pre sentence report and means assessment report - Importance of - Whether suspension of sentence appropriate - Criminal Code - Sections 19 & 444(1).

Cases cited:

The State -v- Steven Molu Minji & 4 Ors (No1): CR Nos 290 & 864 of 2008 (Unnumbered & Unreported Judgment of 16th November 2009)

Aloises Peter Iboro Kovei -v- The State (2001) SC676

The State -v- Kopol Hiol: CR No of 2007 (Unnumbered & Unreported Judgment of 12th May 2008)

The State -v- Martin Sahin Terea (2005) N2816

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)

Richard Liri -v- The State (2007) SC883

The Acting Public Prosecutor -v- Don Hale (1998) SC564

The State -v- Jack Magal: CR No 224 of 2006 (Unnumbered & Unreported Judgment of 09th December 2008)

Counsel:

Mr J Waine, for the State

Mr N Nagle, for the Prisoners

SENTENCE

20th November, 2009

1. MAKAIL, J: On 16th November 2009, I convicted the five of you of one count of wilful damage of property, an offence under section 444(1) of the Criminal Code of Papua New Guinea. This was after you denied the charge and a trial was conducted, which started last November and got carried over to April of this year and eventually got completed on 11th November following three different court circuits. As I told you at the time I convicted you, this offence carries a maximum penalty of 2 years imprisonment.

2. In convicting you of the offence, I found that between 4 o’clock and 6 o’clock on the morning of Wednesday 31st October 2007, the five of you in the company of your accomplices numbering about 40-50, armed yourselves with bush knives and axes and entered the coffee plantation of Banz Catholic Church at Banz town. The coffee plantation is on a State land under a State lease (Mission lease) of which the Holy Ghost (New Guinea) Property Trust is the registered proprietor. You chopped a total of 2,230 coffee trees. The total value of the destroyed coffee trees is K45,658.80.

3. I also found that your actions were unlawful because you were not the owners of the land where the coffee trees were. I also found that you were frustrated and angry that your demand for the return of the land was not forthcoming from the Banz Catholic Church Pastoral Advisory Board even though it had earlier made a decision to return it to you which was subsequently endorsed by the Bishop of Mt Hagen Archdiocese: see also my judgment of The State -v- Steven Molu Minji & 4 Ors (No1): CR Nos 290 & 864 of 2008 (Unnumbered & Unreported Judgment of 16th November 2009).

4. On your allocutus, John Minji spoke on his and your behalf. In addition to that, you Didi Gelwak Sakol spoke briefly. I shall briefly high light the main points of what John Minji and Didi Gelwak Sakol said. You John Minji essentially recited what you and the others told the Court about why you chopped the coffee trees on the land. You and your co prisoners emphasized that you were formerly the traditional owners of that land. The land which the coffee plantation is located is part of your traditional land which covers a total of 100 hectares. In the 1950’s, your forefathers brought a Catholic Church priest and gave him that land to establish a mission station. This was done and this saw the first Catholic Church mission established at Banz.

5. Over the years, your Sengal-Kanem tribe’s population grew and land became scarce. As a result, you and your co prisoners made representation to the officials of the Banz Catholic Church parish and the Bishop of Mt Hagen Archdiocese to return the land where the coffee plantation is presently located to you. A decision was made which was subsequently endorsed by the Bishop of Mt Hagen Archdiocese but it took longer than expected to finalize the transfer of title. You got frustrated and angry and did what you did.

6. You then went on to ask the Court to take into account that all of you are family men and have children to care for. Your children are attending elementary school up to secondary school and you are responsible for paying their school fees and providing for their daily sustenance. You ask the Court to consider imposing a monetary fine or place you on good behaviour bond. As for you Didi Gelwak Sakol, you alerted or perhaps reminded the Court that any custodial sentence imposed by the Court should take into account the period of 1 year and 9 months you have already spent in custody since 11th January 2008.

Prisoner - Steven Molu Minji

7. You are from Sipil village in Banz of the Western Highlands Province and a member of the Senglap-Kanem tribe. You are married and have 4 children. All of them are attending Banz primary school. Your first child is in Grade 8, second child is in Grade 6, third child is in Grade 4 and the last is in Grade 3. You are a member of the Catholic Church and a first offender.

Prisoner - James Kauboi

8. You are from Sipil village in Banz of the Western Highlands Province and a member of the Senglap-Kanem tribe. You are married and have 4 children. Two of them are attending Banz primary school and Banz elementary school. Your first child is in Grade 2 and the second child is doing elementary school. You are a member of the Catholic Church and a first offender.

Prisoner - Simon Koso Kerenga

9. You are from Baura village in Banz of the Western Highlands Province and a member of the Senglap-Kanem tribe. You are married and have 2 children. They are attending Banz primary school and doing Grades 5 and 3 respectively. You are also a member of the Catholic Church and a first offender.

Prisoner - John Minji

10. You are from Sipil village in Banz of the Western Highlands Province and a member of the Senglap-Kanem tribe. You are married and have 4 children. Two of them are attending Banz primary school and Banz elementary school. Your first child is in Grade 2 and the second child is doing elementary. You are a member of the Catholic Church and a first offender.

Prisoner - Didi Gelwak Sakol

11. You are from Sipil village in Banz of the Western Highlands Province and a member of the Senglap-Kanem tribe. You are married and have 2 children. You are a member of the Catholic Church and a first offender.

12. Having considered what you have said and noting the submissions of your lawyer and the State prosecutor, I must now decide an appropriate sentence for you. When a Court is sentencing a person found guilty of committing an offence, it takes into account several legal principles of law to guide it to arrive at an appropriate sentence for the offender. One of the well established principles of law in our jurisdiction is that, the maximum penalty is always reserved for the worst type of offence under consideration. Many cases in this jurisdiction have acknowledged and applied this principle.

13. One such case is Aloises Peter Iboro Kovei -v- The State (2001) SC676, a case where the appellant appealed inter-alia a life imprisonment sentence imposed by the National Court for the brutal killing of a female following her abduction and rape. In considering inter-alia whether the sentence was severe, the Supreme Court comprising of Amet CJ, Gavara Nanu & Kandakasi JJ, observed that:

“It is a well accepted principle in our criminal jurisdiction now that, the maximum penalty prescribe by the legislature should be reserved and imposed only for the "worst type" or "worst category" of the offence under consideration. This has been made abundantly clear in the context of willful murder cases. For example, the Supreme Court in Avia Aihi v. The State (N0.3) [1982] PNGLR 92 at page 96 referred to its earlier decision in Goli Golu v. The State [1979] PNGLR 653 and said:

“In fact this Court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instance of a particular offence.”

14. This principle of law emerges from the sentencing discretion vested in the Court by virtue of section 19 of the Criminal Code. This provision essentially gives the Court discretion to impose a lesser penalty upon an offender if the factual circumstances do not establish a “worst case”. How the discretion is exercised depends on the factual circumstances of the case under consideration. Most importantly, the Court looks at the factual circumstances of how the offence was committed, the mitigating factors and the aggravating factors.

15. With these...