The State v Jacob Cajetan

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ
• Judgment Date: 15 July 2016
• Citation: (2016) N6383
• Court: National Court
• Year: 2016
• Judgement Number: N6383

Full : CR No 1464 of 2014; The State v Jacob Cajetan (2016) N6383

National Court: Salika DCJ

Judgment Delivered: 15 July 2016

N6383

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 1464 OF 2014

BETWEEN

THE STATE

AND

JACOB CAJETAN

Waigani: Salika DCJ

2016: 15 June & 4, 15 July

PRACTICE AND PROCEDURE – CRIMINAL LAW – Sentence – Stealing following an invasion of dwelling house – Number of personal items stolen.

Cases cited:

Kesno Apo v The State (1988-89) PNGLR 182.

Pukari-Flabu v Hambakon-Sma (1965-66) PNGLR 348

State v Eki and others (2005) N3387

State v John Tundubo and 4 others unnumbered and unreported

State v Martin Sahin Terea, unnumbered and unreported

State v Meckpi (2010) N4099

The State v Tio (2002) N2265

Counsel:

Ms L. Jack, for the State

Ms Kasa, for the Prisoner

SENTENCE

15th July, 2016

INTRODUCTION

1. SALIKA DCJ: The prisoner pleaded guilty to 4 counts of wilfully and unlawfully damaging properties belonging to Clifford Zazeng, the State, Bobby Tovi and Fabian Hahut. These charges were laid under Section 444(1) of the Criminal Code Act. He also pleaded guilty to 3 counts of stealing under Section 372(1) and (5) of the Criminal Code Act.

FACTS

2. The State alleged that on the 11th of May, 2014 between the hours of 6:30pm and 8:00pm, the prisoner and others invaded the premises of the complainant Mr Bobby Tovi and wilfully damaged and stole properties from therein.

3. At the material time, the prisoner was the first person to enter the complainant’s premises and started throwing stones at the complainant’s house smashing the glass louver blades. He then led the group into the yard. He was followed in by about 9 to 10 other male ‘wantoks’. They then continued to throw stones, bottles and timber pieces at the complainant’s house smashing more glass louver blades and damaging the outer walls of the house. At the same time they were demanding compensation for an earlier altercation between Jacob Cajetan and the Complainant. They also threatened the complainant that they would kill him and the others in the house if their demands were not met.

4. The prisoner then got stones and smashed the windscreen and mirrors of two vehicles that were parked in the complainant’s yard. They then broke down the door of the house and went into the house and continued to break and smash properties in the house such as a TV screen, tables and other household items. All the while the complainant and the others inside the house feared for their lives and locked themselves in the rooms of the house.

5. The total cost of the items stolen and damaged is about twenty seven thousand, eight hundred and eighteen kina, forty toea (K27, 828.40).

6. The State further alleged that after forcefully entering and damaging properties in the house they stole two (2) welding machines and a power drill belonging of one Fabian Hahut.

7. The State says that the actions of the prisoner and his wantoks or relatives in wilfully damaging and stealing the properties of Bobby Tovi, the State and Fabian Hahut contravened Sections 444(1) and 372(1)(5)(b)(i)(ii) respectively, of the Criminal Code Act. The State further invoked Section 7 of the Criminal Code Act.

ALLOCATUS STATEMENT

8. On allocatus the prisoner apologised for his actions to the complainant and to his family and to the Court. I accept his apology. He further said that the complainant is part of family because they are next door neighbours and that they share a lot of things together and requested that he be allowed to pay compensation and make up for the damage he and his relatives caused.

PERSONAL PARTICULARS

9. The prisoner is about 27 years old and is from Wa village in the Mendi District of the Southern Highlands Province but lives at Gorogo Street, 5 mile. He is single and has no children. His parents are still alive and living in the village as subsistence farmers. He has one sister and 4 other brothers and lives with his elder brother in his house here in Port Moresby. He was educated up to high school level but due to much tribal fighting in his area he left school and has since not pursued any further education.

10. He is not formally employed but assists his elder brother as a handyman with little chores his brother tells him to do. The prisoner however is in good health. The prisoner does consume alcohol, chews betelnut and has smoked marijuana but he said he has now dropped the habits since spending time in custody awaiting trial of this matter.

MITIGATING FACTORS

11. The prisoner is a first time offender and has never been in Court before. He pleaded guilty to all 7 counts for which he is charged and has expressed remorse for his actions.

AGGRAVATING CIRCUMSTANCES

12. The victim and his family were traumatised by this event. To invade ones dwelling home is uncivilised and has no place in modern PNG. To involve his relatives into this problem only fuelled the situation. Wilful damage to property means intention to cause that damage. Intention to do anything in my respectful opinion is an aggravating factor because it is deliberate. Wilful can also mean recklessly or maliciously doing an act. Intention is what is in the mind of the person committing the act and it is difficult to prove from the outside but may be proved from inferences from other proven facts. In this case the prisoner pleaded guilty to the charges and this has made the Court’s task easier (See Pukari-Flabu v Hambakon-Sma (1965-66) PNGLR 348).

13. In this case too there is some evidence that the incident happened while the prisoner was under the influence of alcohol. The consumption of alcohol may have been the reason for the prisoner acting in the way he did and to some extent goes to the question of culpability. This is because if he was acting under the influence of alcohol and committed those offences his self control ability to think rationally was impaired by alcohol. (See Kesno Apo v The State (1988-89) PNGLR 182).

14. However if he voluntarily consumed alcohol to give himself courage to commit the offences it could be considered as an aggravating factor. (See State v Abel Airi (2000) N2007). There is no evidence of this in the depositions and I will give him the benefit of the doubt on this aspect.

15. The total amount of damage done in monetary terms was K25, 928.40 while value of things stolen was K1, 900.00. This is a substantial amount.

THE LAW

16. Section 444(1) says:

“(1) A person who wilfully and unlawfully destroys or damages any property is guilty of an offence that, unless otherwise stated, is a misdemeanour.

Penalty: If no other punishment is provided by this section – imprisonment for a term not exceeding two years.”

Section 372 says;

“(1) Any person who steals anything capable of being stolen is guilty of a crime.

Penalty: Subject to this section, imprisonment for a term not exceeding three years.

(5)-

(b) the thing is stolen in a dwelling-house, and-

(i) its value exceeds K10.00; or

(ii) the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling-house;

The offender is liable to imprisonment for a term not exceeding seven years.”

ISSUE

17. What is the appropriate sentence to impose on this prisoner?

CASE PRECEDENTS – WILFUL DAMAGE

18. Counsel alluded to the following case precedents to assist the Court in coming to an appropriate sentence:-

a) State v Meckpi (2010) N4099

“The prisoner pleaded guilty to one count of wilfully and unlawfully damaging the glasses of a vehicle owned by one Robert Tukondo, He used an iron rod to smash the glass. The monetary value of the damage was assessed at K10, 924.34. A Pre-Sentence Report and a Means Assessment report were provided.

Justice Kawi imposed a sentence of 10 months but had it wholly suspended with strict conditions including restitution”.

b) State v John Tundubo and 4 others unnumbered and unreported judgement of Makail J dated 10 December 2008

“In that case, the offenders armed themselves with axes and knives and went into a primary school and entered the office of the school principal. They destroyed the computer, the printer and printer cables, scanner and the photocopier. The costs of all these damaged school items stood at K16, 442.80.

Makail J imposed a head sentence of 1 year but then had it wholly suspended with strict conditions including restitution.”

c) State v Martin Sahin Terea, unnumbered and unreported decision of Cannings J 22 March 2005.

The prisoner pleaded guilty to a charge of wilful and unlawful damage to property under Section 444(1) of Criminal Code. Prisoner is a public servant working in the Bougainville Administration working as a graphic artist. He arrived at work drunk, armed with a screw driver which he used to damage office equipment and fittings. The mitigating factors in that case were that the value of the properties damaged low, he acted alone, it was an isolated incident and he co-operated with police.

CASE PRECEDENTS – STEALING

19. The following case precedents...