[1998] PNGLR 387

PAPUA NEW GUINEA

[national court of justice]

the state

v

akena pawa

wabag: lenalia aj
14, 17 April 1998

Criminal Law - Arson - Plea - Sentence - Criminal Code Act Section 436 - (Ch. No. 262).

Criminal Law - Arson - Sentence in offence of arson - Matters for consideration - Complete destruction of a modern permanent building - Value a relevant consideration.

sentencing – General and specific deterrence considered.

Facts

The accused had pleaded guilty to one act of arson by wilfully and unlawfully setting fire to a modern permanent dwelling house owned by one Timothy Kerene (the victim). The accused had given several reasons for his action, including the fact that the victim had not paid him compensation for a dead pig, and had also not paid him his entitlements for working as a crew on the victim’s public motor vehicle.

Held

1.	Despite a strong plea in mitigation, a custodial sentence would be appropriate in this case, given the serious nature of the offence, and the fact that it was premeditated.

2.	The value of the building and its contents, the likelihood of any occupants being in the building, and the time of the commission of the offence of arson are factors to be taken into consideration on sentence: The State v Ipu Samuel Yamb [1992] PNGLR 261 adopted and applied.

3.	Where an offence is sufficiently serious, a youthful offender must not expect to receive special treatment. Being a youth does not exonerate the accused from criminal culpability and unless exceptional circumstances are shown to exist, a custodial sentence ought to be imposed: Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258 applied.

4.	Accused sentenced to 4 years imprisonment with hard labour, less six months already spent in custody.

Papua New Guinea cases cited

Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258.
Paulus Mandatitip v The State [1978] PNGLR 128.
State v Ipu Samuel Yomb [1982] PNGLR 261.
State v Thomas Waim [1998] PNGLR 360.

Other case cited

R v Radich [1954] NZLR 86.

Counsel

P Kumo, for the State.
B Aipe, for the accused.

17 April 1998

Lenalia aj. The accused upon arraignment entered a guilty plea to one count of arson charging that on September 29, 1997 at Panadaka Village in Enga Province he wilfully and unlawfully set fire to a dwelling house whose owner is Timothy Kerene thereby contravening s 436 of the Criminal Code.

The agreed facts are that on the relevant date at about 4 pm the accused proceeded to the house of the victim and wilfully set fire to it. The facts are well covered by statements of all the witnesses and the record of interview conducted with the prisoner. The State’s version is that you approached Ms Julie Pusboi who was minding a store nearby and bought two bottles of kerosene from her. You took these bottles of kerosene to the victim’s house then poured kerosene on the walls and the facts are not clear whether the pouring of kerosene was done from outside or inside. The defence version is that the fire was lit from inside. This could have meant you poured kerosene inside then set fire to the building.

Ms Pusboi alerted the victim’s wife and by the time the two women got to the scene, the building was completely engulfed by flames. They stood hopelessly watching the flames.

Another witness Mrs Cathy Kerene the wife of the victim said in her statement that, she was in another house and when she heard the warning, she could not properly make out what it was all about. She ran from where she was only to see that her house was already burning. She then ran down to the Porgera mine site where she made a phone call to her husband at his work place. He was informed about the news and they drove back to the scene. The Court understands from the facts that the victim’s house was adjacent to the Porgera Joint Venture premises.

After you had set fire to the house, you came to Ms Rose Joe and asked her to tell the victim that you had three good reasons for burning his house. The first reason you gave was that the victim had run over your pig with his vehicle sometime ago but you had not been paid any compensation. Secondly, you alleged that the victim had employed you over a period of time as a crew on his public motor vehicle but had not remunerated you as yet. Thirdly that the victim had unreasonably blamed you for stealing a certain sum of money by breaking into his house. Another reason you gave was that the victim had assaulted you sometime previously.

The complainant lost both the house and all its contents. The value of the house alone was placed at K50,000.00. Apart from that, furnitures including a refrigerator, a TV screen, and a radio set and other smaller items were all destroyed in the fire. The overall total was put by the State to be between K80,000.00 or K85,000.00. 

In your allocutus you mentioned that the reason you committed this offence was because the victim had caused you some troubles and he never made amends with you. You said now that you have avenged yourself you now realise that you had no relative to assist you with this trouble. And as well as that even prior to burning the house there was nobody who could assist you obtain what you wanted so you planned to burn the complainant’s house.

The Court had the advantage of hearing the two counsels address the Court on an appropriate sentence that this Court should impose on you. Certainly in your favour, I take into consideration you have pleaded guilty. The Court has also considered the fact that you are a youthful offender and this is your first appearance in Court. That is to say you have a clean record with the State.

In consideration of what should be the appropriate penalty commensurate with this offence, I should address a few factors which the law requires me to consider: The State v Ipu Samuel Yomb [1982] PNGLR 261. First you set fire to the house by 4pm by which time there would not have been someone in the house. It is my view that even then, it was not a safe time because some people may take naps late in the afternoon or even be just resting. It would not have been safe either for infants who would have been sleeping by that time. The position would have been different had you decided to burn the house at night when the owner of the house and his family were expected to sleep. Thirdly, your behaviour was reckless in the way you set fire to the house thus putting lives at risk. The risk would have been higher had you burnt the house at night. 

The next consideration is the value of the structure destroyed by fire and its contents. I accept for the purpose of sentencing you that the value of the building plus its contents would have been in the vicinity of K80,000.00 or more. This was a substantial loss to the victim and his family.

Mr Kumo for the State urged the Court that it should take into account the fact that this offence was premeditated as shown by question 28 of the record of interview and its answer. Of course that view is also confirmed by the statement by Ms Julie Pusboi. You said in answer to question 28 of the record of interview that you went to the house of the complainant well planned in advance to burn the victim’s house. I think in most arson cases they are premeditated as compared to spur of the moment and reckless burning of structures.

I am obliged to inform you that the offence you committed is very serious. The prescribed penalty provided by law under the section charged is life imprisonment. The penalty there in itself shows how serious is this offence. The legislature decided that the penalty for arson should be imprisonment for life. This Court is empowered by s 19 of the Criminal Code to give you a term of years.

I observed your demeanour when administering the allocutus to you. You did not show any remorse at all or at least express the slightest concern for your reckless behaviour. Your lawyer urged upon this Court to be merciful to you and impose a non-custodial sentence since you are a youth. Let this Court tell you that principles laid down by both the National and Supreme Courts say that even where a prisoner is young and a first offender, but if the offences committed is serious and where such offence are too prevalent, youthful offenders cannot request for special treatment unless circumstances of a case so reveal otherwise.

I remind myself that although it may be dangerous to send a young man like you to prison, I am also equally obliged to remind myself not to overlook the purposes of incarceration. Deterrence is supposed to serve two purposes. First to deter others from committing similar offences sometimes referred to as "general deterrence" and secondly to deter an accused himself from re-offending. The second aspect is sometimes known as "specific deterrence". If I may refer to a New Zealand Court of Appeal case R v Radich [1954] NZLR 86 in which the Court there said:

"One of the main purposes of punishment is to protect the public from the commission of the crime by making it clear to the offenders and to other persons with similar impulses that if they yield to them they will meet severe punishment. The fact that punishment does not entirely prevent all similar crimes should not distract from the cogent fact that the severe punishment does and will prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment. If a Court is weakly merciful and does not impose a sentence commensurate with the seriousness of the crime it fails to do its duty to see that sentences are such as to operate as a powerful factor to prevent the commission of such offences. On the other hand justice and humanity both require the previous character and conduct of the individual offender and the effect of the sentence on these should also be given the most careful consideration although this factor is necessarily subsidiary to the main factors that determine the appropriate punishment". (emphasis added)

In view of the very serious nature of this offence and in absence of any exceptional circumstances relative to the prisoner’s background, I am of the view that a term of imprisonment should be imposed. Despite the strong plea in mitigation, there may be some cases where youthful offenders must face the consequences of their reckless actions and the concept of deterrence ought to take priority and where appropriate sentences of imprisonment should be imposed on a young offender like you to demonstrate public disapproval of this type of disrespect to other people’s property.

The victim just as you yourself and all citizens and non-citizens alike have a qualified right under the Constitution to have their person and their property protected by law. Thus s 44 of the PNG Constitution provides:

"No person shall be subject to the search of his person or property or to entry of his premises except to the extent that the exercise of that right is regulated or restricted by law---".

This offence may not be too prevalent as discussed in the case of Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258 or as in the case of Paulus Mandatitip v The State [1978] PNGLR 128. These cases were break, enter and stealing cases. I do not see any reasons why the principles enunciated in those two cases, that youthful offenders must not expect leniency from the Courts unless there are exceptional circumstances, ought not to be applied to your case. In the circumstances of the instant case, the gravity is such that a custodial sentence is called for. I am of the strong view that a plea of youth is no longer appropriate at the present circumstances of Papua New Guinea. Youth has always been one of the most effective mitigating factors especially in the case of a first offender, but where an offence committed is so serious then apparently even a youth should be sent to prison.

It is this Court’s firm view that where an offence is sufficiently serious, a youthful offender must not expect to receive special treatment. I agree that there may be cases where imprisonment may not be appropriate or warranted. In the case The State v Thomas Waim [1998] PNGLR 360, his Honour Sevua J said:

"I believe that young criminals of this country cannot continue to hide beneath the cloak of youthfulness in order to get away with very serious violent crimes".

On the question whether youthfulness is a mitigating factor, His Honour said:

"I do not say for a moment that youth is no longer a mitigating factor, it still is---".

You are a young man and this Court hopes that the sentence about to be pronounced on you should have two fold effects, that of "general and specific deterrence". I am also obliged to tell you that for a person to build a permanent house, and especially in Papua New Guinea where money is a problem, it could take ages for a person to save up for a permanent building. You have destroyed the victim’s lifetime investment. The concepts of rehabilitation, retribution and restraint or isolation are matters that a sentencer must consider in the light of the circumstances of a case. If I consider in the instant case that rehabilitation was more appropriate I would not hesitate to order a probation or an alternative sentence. However, the circumstances of your case are such that I consider incarceration is the appropriate penalty. Considering the fact that the prescribed penalty for the offence of arson is life imprisonment subject to s 19 of the Code. I consider the appropriate sentence is four (4) years imprisonment in hard labour. You are sentenced to a term of four (4) years imprisonment with hard labour. The prisoner has been in custody for six months. This period shall be deducted from the head sentence. The prisoner shall serve the balance of three (3) years six (6) months in hard labour.

Sentenced accordingly.

Lawyer for the State: The Public Prosecutor.
Lawyer for the accused: The Public Solicitor.