The State v Wanpis Apkas (2019) N7990

• Jurisdiction: Papua New Guinea
• Judge: Berrigan J
• Judgment Date: 06 September 2019
• Citation: (2019) N7990
• Docket Number: CR (FC) 39 of 2019
• Court: National Court
• Year: 2019
• Judgement Number: N7990

Full Title: CR (FC) 39 of 2019; The State v Wanpis Apkas (2019) N7990

National Court: Berrigan J

Judgment Delivered: 6 September 2019

N7990

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 39 of 2019

THE STATE

V

WANPIS APKAS

Waigani: Berrigan J

2019: 9, 20 May, 17 June, 5 July and 6 September

CRIMINAL LAW – Practice and procedure – Sentence – S. 390A(a)(b)(iii) of the Criminal Code - Unlawful demand for payment – “Extortion”.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653

The State v Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320.

Rex Lialu v The State [1990] PNGRL 487

Lawrence Simbe v The State [1994] PNGLR 38

The State v Titus Kep & Ors (2004) N2616

The State v Junior Leo Mailen Cr No 965 of 2004, unreported, 11 December 2007

The State v Nathan Mailen and Junior Leo Mailen, (2007) N5036

Kumbamong v The State (2008) SC1017

The State v David Mabo (2009) N3884

References cited

Section 19 of the Criminal Code

Section 390A(a)(b)(iii) of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Ms. T. Aihi and Ms. K. Kametan, for the State

Ms. P. Tamutai and Mr. J. Ules, for the Offender

DECISION ON SENTENCE

6 September, 2019

1. BERRIGAN J: The offender was convicted following trial on one count of unlawfully demanding payment from MASIP Engineering and Consultant Limited (MASIP), contrary to Section 390A(a)(b)(iii) of the Criminal Code (Ch. 262) (the Criminal Code), an offence which might commonly be referred to as “extortion”.

Facts

2. MASIP is an electrical engineering company, based in Mt Hagen, which provides contracting services to the power industry, including generator installation, and the installation and servicing of electrical line and related work.

3. In about 2016 MASIP was contracted by Telikom PNG (Telikom) to undertake work on mobile network towers at seven sites in Western Highlands Province. The company was engaged through the offender, a Field Engineer with Telikom. The company worked on the projects for about a year pursuant to a contract worth about K136,000.

4. In November 2017 the company’s Managing Director, Timothy Kapak, received a phone call from the offender demanding K30,000. The offender told the complainant that if the monies were not paid, the company would be terminated and would not get any future work. He also told the complainant that the company’s outstanding payments would be delayed for a long time.

5. The threat to stop or delay payment lawfully due under contract, and to interfere with future tender processes was unlawful, and was made in order to obtain compliance with the demand, with the intent to extort payment from MASIP.

6. As a result of the demand, the complainant arranged for MASIP to pay K30,000 into the offender’s personal bank account with Bank of South Pacific (BSP); K15,000 on 17 November 2017 and a further K15,000 on 23 November 2017.

7. As noted in my decision on verdict, however, in general terms it is not necessary that the alleged target should actually give way to the threat or force, nor actually hand the thing, payment or compensation over to the person making the demand. The offence will be complete once for the purposes of extorting any thing, payment or compensation from a person, the demand is made, and in order to obtain compliance with the demand, the accused unlawfully threatens or intimidates any person (whether or not the same person).

8. The issue now before the court is the sentence to be imposed.

Submissions and Comparative Cases

9. Defence counsel submitted that a sentence in the range of two to three years would be appropriate, wholly suspended on the basis that the offence involved no actual or threat of violence, and in order to promote restitution. In support of its submission it relied on the following cases:

(a) The State v Nathan Mailen and Junior Leo Mailen, (2007) N5036, in which two brothers were convicted in relation to two separate incidents. In the first, Nathan Mailen pleaded guilty to entering the yard of a neighbouring family, whilst drunk, shouting and swearing. He demanded K200 compensation over an incident involving the complainant’s son and his sister. He threatened violence against the complainant, his wife and daughter. A fight broke out and the offender punched the man and his daughter, without causing serious injury. Having regard to the threats of violence, the actual violence, and the risk of serious injury, Cannings J sentenced the offender to three years taking into account his plea of guilt, remorse, lack of prior record and the presence of de facto provocation (regarding the incident with his sister); and

(b) The State v Junior Leo Mailen Cr No 965 of 2004, unreported, 11 December 2007, referred to in the above decision, in which Cannings J imposed a sentence of three years for a similar offence: “demanding payment and issuing threats of personal violence”.

10. The State too submitted that an appropriate head sentence lies in the range of two to three years. It does not appear to oppose suspension. In support of its submissions it relied on the following cases:

(a) The State v Titus Kep & Ors (2004) N2616, Sevua J, in which five accused pleaded guilty to demanding compensation of more than half a million Kina from New Britain Palm Oil Limited, contrary to s. 390A(a)(b)(i)(ii) of the Criminal Code. This followed a motor vehicle accident between a PMV driver and a truck owned by New Britain Palm Oil Limited in which three people died and several were injured. In response the accused issued threats against employees of the company and prevented them from going to work with the use of threats and force. They also threatened and intimidated company officials and confiscated the keys to three motor vehicles, a tractor and four oil tankers and drove them to a plantation where they kept them. They then demanded that the monies be paid or they would continue to hold the vehicles. The ringleader was sentenced to 5 years’ imprisonment in hard labour, with the others to serve 4 years each; and

(b) The State v David Mabo (2009) N3884, Kandakasi J, in which the prisoner and two others had a confrontation with a Morobean family in Kimbe which resulted in the offender receiving a cut to his ear. The offender and others armed themselves with bush and grass knives, sticks and stones and demanded K1180 with threats of violence, which monies were paid. The offender pleaded guilty, and the Court recognised that there was some non-legal provocation and that the amount of money was not substantial. Against this there were threats of violence, in company, against a person outside his home province. The offender had a prior conviction for possession of a dangerous weapon. On guilty plea he was sentenced to 4 years, less time in custody, with one year of the balance to be suspended upon restitution and a public apology.

11. The sentence in this case will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

12. Defence counsel has asked the Court to sentence from the starting point of three and a half years. In general terms, sentencing judges are not required to state a notional starting point for an offence and then specify any reductions or additions made. The Supreme Court has made it clear that sentencing is not a mathematical exercise. Rather, the preferred approach is to take account all relevant factors and them make a judgement as to the appropriate sentence: see Rex Lialu v The State [1990] PNGRL 487; Lawrence Simbe v The State [1994] PNGLR 38; and Kumbamong v The State (2008) SC1017. Relevant factors will include Supreme Court guideline judgements, where applicable. None apply here. This is sometimes referred to as the intuitive or instinctive synthesis approach: see the discussion in The State v Solomon Junt Warur (2018) N7545.

Considerations on Sentence

13. I have taken the following matters into account when determining sentence.

14. According to the pre-sentence report and the submissions of defence counsel, the offender is 28 years old and from a village outside Mendi called Mogol in the Southern Highlands Province. He is single and has no children. He was born to two subsistence farmers and his mother died when he was just a child. Despite early struggles, he is the only person in his community to have attained tertiary qualifications, graduating from the University of Technology with a Diploma in Electronics of Electrical Engineering and a Bachelor Degree in Electrical Engineering in 2013 and 2015, respectively. Following a short stint with Digicel PNG he commenced with Telikom under their Graduate Development Program in June 2015 before being promoted to Field Power Engineer, on probation, in 2017. He was terminated by Telikom in July 2018 as a result of the offence and is currently unemployed. He supports his father, step mothers and three siblings who are currently in primary school. Given his status, his tribe and community rely on him to support cultural obligations, including compensation and bride price.

15. The...