The State v Aisi Eki, Fabian Longa & Darius Moihe (2005) N3387

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 22 December 2005
• Court: National Court
• Citation: (2005) N3387
• Docket Number: CR NO. 1297, 1361 & 1362 of 2004
• Year: 2005
• Judgement Number: N3387

Full Title: CR NO. 1297, 1361 & 1362 of 2004; The State v Aisi Eki, Fabian Longa & Darius Moihe (2005) N3387

National Court: Kandakasi, J

Judgment Delivered: 22 December 2005

N3387

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1297, 1361 & 1362 of 2004

THE STATE

-V-

AISI EKI, FABIAN LONGA & DARIUS MOIHE

Vanimo: Kandakasi, J.

2005: 14th and 22nd December

CRIMINAL LAW – Sentence – Stealing following looting and rioting - Break, enter of and stealing from dwelling house – Number of personal items stolen – Partial recovery – Property stolen worth between K4,180.00 and K4,630.00 – Separate indictments against each person - Guilty plea by first time offenders – varying sentences between 3 months and 5 years imposed.

CRIMINAL LAW – Sentence – Receiving stolen property – Property stolen following looting and rioting - Break, enter of and stealing from dwelling house – Number of personal items stolen – Partial recovery – Property stolen worth between K4,180.00 – Prisoner disposing of property – Belated plea to return property without any evidence as to its current condition and value - Guilty plea by first time offender - Sentence of 3 years imposed.

Cases cited:

The State v. Bill Saun Daniel CR 292 of 2005 (Judgment delivered 21/2/05).

The State v. Robert Kawin (24/12/01) N2167.

Seo Ross v. The State (30/04/99) SC605.

The State v. Michael Kamipe (11/9/96) N1471.

The State v. Timothy Tio (21/05/02) N2265

The State v. Allan Nareti and Amstrong Kupe (26/03/04) N2582

The State v Rocky Walesa Peraki (18/09/03) N2463.

The State v. Lucas Yovura (29/04/03) N2366.

The State v Isidor Kaream (11/05/04) N2610.

The State v. Henry Mapi (03/07/98) N1936.

The State v James Hilux Palu (25/03/04) N2585.

Acting Public Prosecutor v. Don Hale (27/08/98) SC564.

The State v. Irox Winston (21/09/00) N2304.

Edmund Gima v The State & Siune Arnold v The State (03/10/03) SC730.

Counsel:

J. Wala, for the State.

G. Korei, for the Prisoner.

22 December, 2005

1. KANDAKASI J: The State presented three separate indictments against each of you respectively under s. 372 (1) and (5), s.372 (1) and s.410 (1) of the Criminal Code but all arising out of the same incident or same set of facts. The factual and generally the legal considerations before arriving at a decision on your respective sentences will essentially be the same. Hence the decision to give this joint judgment. I will of course, digress to addressing each of the matters separately when appropriate.

2. Mr. Aisi Eki, the State charged you with one charge of stealing a video deck player worth K450.00. Mr. Fabian Longa, the State similarly charged you with one charge of stealing a hi-fi radio stereo system (radio) valued at K4, 180.00. Finally Mr. Darius Moihe, the State charged you with one charge of receiving a stolen property namely, the item stolen by Mr. Fabian Longa, being the radio.

The Relevant Facts

3. From the deposition and the facts put to you during your respective arraignments, are clearly these. Between 12:00 noon and 2:00 pm on 18th February 2004, there was a big unauthorized demonstration here in Vanimo. The demonstration was over the assaulting of a Chris Deklin, one of your fellow villagers from Lido by a group of drunkards from the East Sepik Province at West Deco within the township of Vanimo. People from the West and East Coasts and some settlers in Vanimo, marched into the Works Compound after assembling earlier and forcefully breaking into a Timothy Aguwi and a Thomas Babo’s houses and looted the houses of their contents and thereafter, setting the house on fire.

4. Both of you, Aisi Eki and Fabian Longa were part of the people that marched into the Works Compound and broke into, looted and burnt Timothy and Thomas’ houses. Aisi Eki, you stole a video deck player from Thomas’ house, while Fabian Longa, you stole a radio from Timothy’s house. After having stolen the radio, Fabian Longa, you gave it to Darius Moihe. Darius Moihe, you had the stolen property delivered by ship to Lae where your sister is. Although, some of the properties stolen from Timothy and Thomas’ houses were recovered, it is not clear whether you returned the video deck, Aisi Eki, you stole. As for the radio, attempts to have the property recovered from both you, Fabian and Darius failed as Darius had it shipped to Lae to his sister.

Your Allocatus and Address on Sentence

5. Aisi Eki and Fabian Longa, you both left your right to address the Court on sentence to your lawyer. Darius, you did likewise but that was after informing the Court that this was your first ever offence, you have learned something out of it and asked for the mercy of the Court. You concluded with a request for more time for you to have the radio returned to its owner.

6. Mr. Korei of counsel for all of you pointed out that, you were all first time offenders. He also reminded the Court that, all of you pleaded guilty to the respective charges against you. Further, he informed the Court that you all come from Lido Village here in the Sandaun Province just outside the Township of Vanimo. Your counsel also informed the Court that, Aisi Eki, you are aged 22 and married with 2 children. You completed grade 10 at the Don Bosco High School. You live a subsistence style of dwelling.

7. Likewise, counsel also informed the Court that, Fabian Longa, you are 24 years old and married with 2 children. You too live a subsistence style of dwelling. As for Darius Moihe, your counsel informed the Court that, you are 18 years old and single. You completed grade 10 at the Don Bosco High School. Like Aisi and Fabian, you live a subsistence style of dwelling.

8. In all of your cases, your counsel reminded the Court of the respective maximum penalties for each of the charges, you been respectively charged with. He then urged the Court to take into account you all being first time offenders and that, you all have pleaded guilty. He then asked for a suspended sentence for all of you but more so for Darius to arrange for a return of the radio or money in lieu thereof. Otherwise, he left it all to the Court to arrive at an appropriate sentence.

9. Mr. Wala of counsel for the State submitted that, the Court should note that you were part of a group of people taking the law into their own hands, becoming police, judge, jury and executioners all at the same time and helping themselves to two innocent people’s personal properties. He therefore, asked for sentences designed to deter others from committing this kind of offence in the way you have committed them.

10. A small complication occurred particularly when, counsel for the State proceeded to make submissions for penalty in relation to the charge against Fabian Longa. This had to do with the fact that, counsel for the State cited s. 372 (1) only when, the value of the property stolen, K4,180.00 attracts an application of subsection (5) as well. This is significant because under subsection (1), the maximum penalty prescribed is 5 years, whereas a charge also under subsection (5), carries a maximum penalty of 10 years, having regard to the value of the property stolen. Your counsel pointed out that, this Court is at no liberty to proceed to consider sentence under subsection (5) but only under subsection (1). He cited no authority in support of his submissions. This is a repeat of what happened in the case of The State v. Bill Saun Daniel.

ix CR 292 of 2005, a decision I delivered, 21st December 2005.

ix1 I thus, repeat what I said in that case at page 8:

“As far as I know, an accused person pleads either guilty or not guilty to the essential elements of the charge presented against him or her. The relevant indictment in the case of an indictable offence or in the information in the case of a summary offence, must therefore disclose each of the elements. Lay J., highlighted this in his judgment in the case of The State v. Saul Ogerem,

x (27/10/04) N2780.

x2 when he said:

‘The wording of the indictment has not alleged a charge of any offence and it has omitted particulars necessary to inform the accused person of the nature of the charge. Thus it has prevented the Defendant from knowing and pleading to each of the elements of the charge. In relation to the submission that the short facts on arraignment can substitute for the mandatory particulars not included in the indictment, one only has to read the words of s557 of the Code. A Defendant does not plead to the short facts, he pleads to the indictment.’

An indictment or information gets presented based on facts disclosing an offence known to law, which the prosecution through the Court are usually put to an accused during his or her arraignment. There is no requirement for the State to specify in the indictment or the facts put to an accused during his or arraignment, the particular law under which he or she is charged, although this is usually done in most cases.

In your case, the indictment amongst others specifically pleads the fact that you were an employee of PNG Power Ltd and that you...