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State v Kep [2004] PGNC 151; N2616 (8 June 2004)

N2616

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 212 of 2003
CR 441 of 2003
CR 443 of 2003
CR 444 of 2003
&
CR 445 of 2003

THE STATE

-ats-

TITUS KEP, PETER BEN, KOWI TUM
PAUL TEKE & PHILIP WOMI

Kimbe: Sevua, J
2004: 7th & 8th June

CRIMINAL LAW – Sentence – Demanding compensation with threats of violence with intent to extort – Demand of more than half a million kina to be paid within 7 days – Threats of violence and killing against other employees – Threats of violence against company officials – Stealing of company vehicles – Detention of vehicles until demand satisfied – Offence not very prevalent – Custodial sentence necessary to deter on economic consideration to the nation.

Case referred to:
Gimble v The State [1988-89] PNGLR 271

Counsel:
F. Popeu
O. Oiveka

8th June 2004

SEVUA, J: The five accuseds pleaded guilty to, and were convicted yesterday morning of a charge that they, on 25th June 2002 at Kapiura Plantation near Kimbe, with intent to extort, and with threats of violence demanded compensation of more than half a million kina from New Britain Palm Oil Limited, contrary to s. 390A (a) and (b) (i) and (ii) of the Criminal Code Act, a crime which carries the maximum penalty of 7 years imprisonment.

The factual circumstances leading to the commission of this offence which the prisoners admitted are these. On 25th June 2002; a motor vehicle accident occurred at Ubai between the main Bialla – Kimbe Highway. The collision involved a PMV owned and driven by the deceased, Kisa Purara and a truck belonging to New Britain Palm Oil Limited. As a result, the PMV owner/driver, Kisa Purara and two others died from injuries sustained. Other passengers also suffered personal injuries. Then on 1st July 2002, the five accuseds and other Southern Highlanders issued a written demand for compensation in the sum of K596, 937.72 to Mr. Nick Thompson the Managing Director of New Britain Palm Oil Limited to be paid within 7 days.

On 8th July 2002, the five accuseds and other Southern Highlanders mobilized themselves and issued threats against other employees of the company and prevented them from going to work with the use of threats and force. They then threatened and intimidated company officials and confiscated the keys to three Toyota Land Cruisers, one Shangai Tractor and four Volvo Oil Tankers and drove them to Bilomi Plantation where they detained the vehicles. The accuseds demanded that the sum of K596, 932.72 be paid to them if not they would continue to detain the vehicles.

The prisoners elected to remain silent in allocutus and allowed their counsel to speak for them.
Mr. Oiveka then took the Court through the personal antecedents of each prisoner and asked the Court to take these into account on sentence.

Titus Kep is 28 years old and married with two wives and two children. He comes from Kar village in Poroma, Southern Highlands Province. He is illiterate and unemployed. Prior to this offence, he was employed by New Britain Palm Oil Limited (the company) at Kapiura Plantation from 1991 to 1996. Until yesterday, he resided at Giriti Plantation between Bialla and Kimbe. Peter Ben is married with two wives and one child. One wife resides at home in Kar village, whilst the other resides at Haella Plantation between Talasea and Kimbe. He was educated to Grade 6 only in 1986. From 1999 to 2002, he was employed by the company at Kapiura Plantation as a harvester of oil palm fruits. Since the offence he has been unemployed, and until yesterday, resided with relatives at Haella Plantation. Kowi Tum is married with five children and is from Fins village, Mendi. He has no formal education and was previously employed as a fruit harvester at Bilomi Plantation from 1999 to 2002 until this offence. He is presently unemployed and resided at Giriti Settlement near Kapiura. Paul Teke comes from Semin village, Nipa and is married with five children. He is uneducated and unemployed. His previous employment as a labourer was at Kapiura Plantation from 1998 to 2002, but was terminated as a result of this offence. His wife works as a labourer at Karausu Plantation between Kimbe and Bialla. And finally, Philip Womi is a 28 year old single labourer, who until yesterday, was still employed at Kapiura Plantation. He has no formal education and also comes from Semin village in Nipa.

Mr. Oiveka submitted that all the prisoners are first time offenders with no record of prior criminal conviction. They were of good character until they committed this offence. The written demand was signed by another person who has not been arrested, however the prisoners were the leaders therefore were arrested and charged although, there were other employees from Morobe who were also involved. Counsel reiterated that the compensation demand stemmed from the road accident which the State had alleged, and the offence committed was their demand to the Managing Director of New Britain Palm Oil Limited.

Counsel for the prisoners submitted that the maximum penalty under s. 390A is 7 years imprisonment, but urged the Court to exercise its discretion under s.19 of the Code and impose non – custodial sentences on his clients. He said from instructions that the prisoners are willing to do community work for the company without remuneration. It was further submitted that all the vehicles have been returned.

In the event that the submission for non-custodial sentences is rejected, counsel submitted that the periods spent in custody prior to the release on bail should be taken into account and deducted from the head sentence. These are; 2 months 2 weeks for Titus Kep; 2 months for Peter Ben; 2 months 2 weeks for Kowi Tum; 3 months for Paul Teke and 3 months for Philip Womi. Each prisoner was released on a K100.00 cash bail after waiting for the period alluded to in respect of each one respectively.

I have considered and taken into account the personal antecedents of all the five prisoners. Whilst it is noted that they are uneducated and unsophisticated, what they did was very serious in my view. Using threats of violence and force against innocent employees and executive officials of the company is not a civilized way of doing things. I cannot ignore the trauma caused in a situation where there was wide spread threats against employees perpetrated by these prisoners and others. There was almost mayhem because there was a general atmosphere of anarchy because the prisoners, led by Titus Kep, were running around with the stolen vehicles issuing threats to kill and sabotaging the whole operation of the company. Even the initial intervention by police did not mean anything to the prisoners until police reinforcement was called.

There is evidence that Titus Kep was the ring leader of the Southern Highlanders and Morobeans and other employees who went berserk and stole these company vehicles. He was the one who rang the bell at the community hall and addressed the crowd about the demand He was the one who was driving in a Land Cruiser directing his cohorts and followers to do what he said. He was the one who drove with carloads of threatening people who drove into the mill and he addressed the staff and employees threatening to come and destroy the mill and harm workers if they work. He was the one who said that the Government and Police had authorized their action to stop the whole Kapiura Plantation operation. Furthermore, he demanded that vehicles be delivered to him and the mob immediately. The other prisoners even admitted that they were doing what he (Kep) was directing them to do. It was Kep who drove a Land Cruiser to Karausu Division 2 and threatened and swore at David Tan and Roy Walepa. Threats to stone the windscreen of Tan’s vehicle were made thereby resulting in him releasing his vehicle to Kep and his mob. There is also evidence which show that Titus Kep was the ring leader of the aggressive mob who threatened, used abusive languages at company staff, and stole these vehicles under threats of violence. So he must accept the responsibility of his actions and the punishment. These are all circumstances of aggravation warranting close scrutiny by the Court.

It is my view therefore, that Titus Kep deserves a sentence higher than the others despite the principle in Gimble v The State [1988-89] PNGLR 271. I consider that there are very good reasons that he should be punished more than the others. Firstly, it is for his personal deterrence. Secondly, it is for the deterrence of like minded employees who may think of leading such an unlawful conduct akin to mob attacks by the Ku Klux Klan in the Unites States decades ago. Thirdly, it is a threat to the company, the effect of which is, a threat to the economy of the country. The Court must be stern in punishing this kind of behaviour which has the potential of causing serious economic damage including turning foreign investors away from the country.

Furthermore, the basis for this demand for compensation was that Kisa Purara, the deceased, was from Mendi so under the guise of Mendi people seeking compensation for his death the demand for compensation and the threats and mob aggressiveness ensued. However, interestingly enough, there is no evidence that these accuseds are related to the deceased. In fact, only Kowi Tum comes from Mendi, but then there is no evidence that he is a relative of the deceased. Therefore, it appears that the accuseds and those other employees who took part in this offence had no genuine reasons to commit this offence at all. In any event, the accident was already in the hands of police and the accuseds should have left the matter to police whose function it is to investigate criminal complaints and arrest and charge offenders. There was no justification at all for these accuseds to commit this offence.

This province is rich in palm oil which contributes millions of kina to the nation’s purse every year. The country cannot afford to lose foreign investment worth millions of kina because of this kind of lawlessness. The country cannot afford to allow a small group of illiterate criminals to injure its image internationally. If this is the kind of demand the prisoners make at their home in the Southern Highlands then they should return to their home to do that. In fact, they all, except one, have been unemployed so there is no reason they cannot return to their home province. There is evidence by the Manager of Bilomi Plantation that the company had suffered substantial losses in terms of fruits not being harvested as well as financially, however, such losses have not been stated in real monetary terms. This is the kind of thing we can do without. If we allow this kind of lawlessness to go on unpunished, it will eventually destroy the economy of this province and the country and deter genuine investors from coming to invest here to help develop the country financially and economically.

For these reasons, it is my view that although this offence may not be a very common or prevalent offence, it is one which must be punished by incarceration to deter similar conduct in any major industry or corporate sector which brings in millions of kina in needed revenue to the country. So the economic aspect of the effect of this kind of offence to the nation is a paramount consideration, not necessarily to the company.

Whether this offence is committed at a gold mine, oil installation, palm oil plantation or any major corporate industry, the financial effect will be the same except the actual monetary losses suffered. Besides, this kind of conduct will only help to paint a grim picture of Papua New Guinea as a land of crime and lawlessness that foreign investors would not want to come and invest here. In my view, we cannot allow this country to be viewed like this internationally.

By the same token, we should not allow this kind of criminal behaviour to continue unsanctioned or with light punishment. It is just as important to the country as a whole, as it is to west New Britain Province that this kind of lawlessness be stamped out before it gets out of hand. The punishment in this case must reflect that aspiration, and must be a warning to all plantation workers in this province and everywhere in Papua New Guinea for that matter, that the Courts will view this offence very seriously.

Whilst the charge only relates to the incident of 8th July 2002, there is undisputed evidence that the confiscating of vehicles and threats against employees and executives of the company continued on 9th July and also on 12th July, so it is not as if there was only one incident on 8th July. This is a circumstance of aggravation. Company executives were threatened with knives. For example, a bayonet type knife was held against the right side of Peter Gepa, a tractor driver at Bilomi Plantation at the time the shangai tractor was taken forcefully from him. Patrick Warbongoi, the Workshop Superintendent, was threatened with a long bush knife at the mill before he released his Mitsubishi Dual Cab to the crowd led by Titus Kep.

Having considered the submissions by counsel for the prisoners, it is my view that an immediate custodial sentences with appropriate orders under s. 600 (2) (b) of the Criminal Code will be appropriate.

Accordingly the prisoners are sentenced as follows:-

1. Titus Kep is sentenced to 5 years imprisonment in hard labour. I order that 2 months 2 weeks pre-trial custody period be deducted leaving the balance of 4 years 9 months and 2 weeks to serve. I also order pursuant to s. 600 (2) (b) of the Code that, one (1) week after his release from prison, the prisoner returns to his home village at Kar in Poroma, Southern Highlands Province, and shall remain there for 5 years.
   
2. Peter Ben is sentenced to 4 years imprisonment in hard labour. I order that 2 months be deducted for the period spent in custody awaiting trial leaving the balance of 3 years 10 months to serve. I also order pursuant to s. 600 (2) (b) of the Code that one (1) week after his release from prison, the prisoner returns to his home village at Kar in Poroma, Southern Highlands Province, and shall remain there for 5 years.
   
3. Kowi Tum is sentenced to 4 years imprisonment in hard labour. I order that 2 months 2 weeks be suspended leaving the balance of 3 years 9 months and 2 weeks to serve. I also order pursuant to s. 600 (2) (b) of the Code that one (1) week after his release from prison, the prisoner returns to his village at Fins in Mendi, Southern Highlands Province, and shall remain there for 5 years.
   
4. Paul Teke is sentenced to 4 years imprisonment in hard labour. I order that 3 months be deducted for time spent in custody awaiting trial leaving the balance of 3 years 9 months to serve. I also order pursuant to s. 600 (2) (b) of the Code that one (1) week after his release from prison, the prisoner returns to his home village at Semin in Nipa, Southern Highlands Province, and shall remain there for 5 years.
   
5. Philip Womi is sentenced to 4 years imprisonment in hard labour. I order that 3 months be deducted for time spent in custody awaiting trial leaving the balance of 3 years 9 months to serve. I also order pursuant to s. 600 (2) (b) of the Code that one (1) week after his release from prison, the prisoner returns to his home village at Semin in Nipa, Southern Highlands Province, and shall remain there for 5 years.
   

In respect of each prisoner, it is further ordered that his K100.00 cash bail be refunded.

Orders accordingly.

Lawyer for State : Public Prosecutor
Lawyer for Prisoners : Public Solicitor