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State v Tele [2014] PGNC 341; N5802 (22 August 2014)

N5802

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 931 0F 2014

THE STATE

V

MICHAEL TELE

Kimbe: Cannings J
2014: 7, 19, 22 August

CRIMINAL LAW – sentence – wilful damage to property – Criminal Code, Sections 444(1) – guilty plea

The offender pleaded guilty to wilful damage to property. The offender was at the roadside waiting for a truck to come and pick up his oil palm fruits and became angry when the truck driver declined to give him priority. He stabbed the front tyre of the truck and then, wielding the spear in the direction of the driver, broke a side window of the truck. The cost of the damage was K2,674.43. This is the judgment on sentence.

Held:

(1) The maximum penalty for wilful damage to property under Section 444(1) of the Criminal Code is two years imprisonment.

(2) A starting point of one year imprisonment was used.

(3) Mitigating factors are: pleaded guilty; very early guilty plea; made very early admissions to and cooperated with Police; no prior convictions; no planning; offender's preparedness to reconcile.

(4) Aggravating factors are: disturbed the peace of the community; traumatised the truck driver; caused hardship to other block-holders as service was immediately suspended.

(5) A sentence of one year, three months imprisonment was imposed. The pre-sentence period in custody was deducted and the rest of the sentence was suspended with conditions.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Richard Samban (2007) N4998
The State v Wesley Vireru, Ian Avusi, Jerry Mesmin & John Lalu CR 469, 470, 472 & 473/ 2002, 20.12.05

SENTENCE

An offender pleaded guilty to wilful and unlawful damage to property.

Counsel

F K Popeu, for the State
D Kari, for the accused

22nd August, 2014

1. CANNINGS J: Michael Tele pleaded guilty to one count of wilful damage to property and has been convicted of that offence under Section 444(1) of the Criminal Code. The incident occurred at Lorna in the Talasea area on 4 June 2014. He was at the roadside waiting for a New Britain Palm Oil Limited (NBPOL) truck to come and pick up his oil palm fruits. When the truck came it went first to collect other people's fruits. The offender approached the truck driver and insisted that he pick up his fruits first. When the driver declined to do that, the offender, who was holding a hunting spear, stabbed the front tyre of the truck and then, wielding the spear in the direction of the driver, broke a side window of the truck. The cost of the damage was: tyre K2,000.00 + window glass K674.43 = K2,674.43.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He declined.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890):

• Made admissions when interviewed by Police at Kimbe on 10 June 2014.
  

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service.

Personal details of Michael Tele

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari highlighted the guilty plea, and its earliness. The offender was arraigned one day after being committed for trial by the District Court. He submitted that a sentence of one year imprisonment would be sufficient.

SUBMISSIONS BY THE STATE

7. Mr Popeu agreed with Mr Kari's submissions.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The maximum penalty under Section 444(1) is two years imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. I will use the midpoint of one year.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

11. Two West New Britain cases provide useful precedent.

SENTENCES FOR WILFUL DAMAGE

STEP 4: WHAT IS THE HEAD SENTENCE?

Mitigating factors are:

• pleaded guilty;
• very early guilty plea;
• made very early admissions to and cooperated with Police;
• no prior convictions;
• no planning;
• offender's preparedness to reconcile.
  

Aggravating factors are:

• disturbed the peace of the community;
• traumatised the truck driver;
• caused hardship to other block-holders as service was immediately suspended.
  

12. This was a serious case, despite the number of mitigating factors. It requires a sentence above the starting point. The sentence is 15 months imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

13. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is two months, two weeks, four days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

14. Because of the favourable pre-sentence report and the early and consistent admissions, the balance of the sentence will be suspended on the conditions that the offender:

1. must within six months after date of sentence pay at least K500.00 cash compensation to NBPOL + K500.00 cash + one pig to the truck-driver (who was also a victim of the offence), and participate in a reconciliation ceremony, to be arranged through and supervised by the Probation Office;
   
2. must reside at Talasea and nowhere else except with the written approval of the National Court;
   
3. must not leave West New Britain without the written approval of the National Court;
   
4. must perform at least three hours unpaid community work each week, to be arranged through the Probation Office;
   
5. must attend his Church every weekend for service and worship and assist the church in its community activities;
   
6. must report to the Probation Office at Kimbe on the first Monday of each month;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Kimbe and appear before the Court for probation review every six months after the date of release from custody;
   
10. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

SENTENCE

15. Michael Tele, having been convicted of one count of wilfully and unlawfully damaging property contrary to Section 444(1) of the Criminal Code, is sentenced as fo--llows:

Sentenced accordingly.
________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender