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State v Podi [1996] PGNC 29; N1550 (10 September 1996)

Unreported National Court Decisions

N1550

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 612 OF 1996
THE STATE
v
NAIME PODI, SIVIO URE, ERA EUNAGE AGUNA SERI, NOU BESEKO GADIKI, GAITA KIAU AND RENAGI IKUPU

Waigani

Passingan AJ
28-30 August 1996
2-5 September 1996
9-10 September 1996

CRIMINAL LAW - Arson - Dwelling house - Revenge - Death by alleged sorcery - Denials - Principal offenders - Ss 7,8 Criminal Code.

Cases Cited:

There were no cases cited in the judgment.

Criminal Trial

Naime Podi and six others were charged that on the 2nd day of July, 1994 at Alo Alo village they wilfully and unlawfully damaged a dwelling house and personal effects valued at K25,957.33. had set fire to the dwelliwelling house and were charged with arson pursuant to Section 436 of the Criminal Code Chapter No 262. All the relevant facts apin the reasons for judgment.

Counsel:

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P Mogish and K Popeu for the State

G Gamogab for the accusedJUDGMENT

10 September 1996

PASSINGAN NGAN AJ: The seven accused are charged with one count of arson committed on the 2nd day of July, 1995 at Alo Alo village, Central Province.

The accused all live at Kido Village in the Central Province. On the 2nd day ly, 1994, b94, between 5.00 pm and 6.00 pm they went to Alo Alo, a neighbouring village where the complainant Vabukori Tarube lives. The complainant was away in Port Moresby visiting hisdren. His house was vwas vacant and had been locked up.

The dwelling house was permanently built. The stilts were oves, the floors were of sawn timber, the roof and walls wels were made of corrugated iron. It had two doith deadlockslocks. Tndows had louvre blades ades with security bars.

The essential facts are quite clea clear and not in dispute. The accusft Killagewent dint directly to the complainant’8217;s house at Alo Alo village. On ; On arrival thl enterentered the house th one of the two doors. The accused ASeri then bron broke the door down with a piece oece of wood. Pto entering the hthe accu accused had damaged the windows with bottles. Whi; Whilst the accused inre inside the house fire started. The accused lefthouse and returned to Kido Village. The r for thor the accusedcused going to Alo Alo village is also not in dispute. Theygone e the compntinantinant, Vabukori Tarube over the death of Miss Auda Gado. It was alle alleged Mr Tarube had performed sorcery on her

Three witnesses were called in the State case. The first witnessed was thas the Cthe Complainant, Vabukori Tarube. Hidence was tially on the the value of loss and damages suff suffered. The witness was Mata Reva,Reva, who had gone with the accto Al Vilage. He0; He saw the accused damage the complainant’s house. He saw tsaw the house on fire. That is to saidentified each accused at d at the scene causing damage to the complainant’s house, although he cannot say who actually started the.&#16e final witness was Robert Kaia who saw the accusaccused men returning home by a road leadileading from Alo Alo Village.

The seven Record of Interviews were tendered by consent (exhibits “B1” to “G2”). And finally statementshe fthe four police witnesses in relation to the investigations and Records of Interview were also tendered by consent.

I Defence case each accused elected to give sworn evidence. The nce of each accusaccusaccused was basically the same. They wereat Gorohu Villagellage for a rugby game. Before the game startes ofws of the death of Miss Auda Gado reached them.&#1he gas cancelled and tand the accused returned to Kido Village. They&#160rd rumours turs turs that the complainant had caused her dey means of sorcery. T60; The accusedeeded to A to Alo Alo village to see if the complainant was at his house. There is a differenctheirtheir evidenvidence which I consider not very important. Tis a tendency to show thaw that they did not go as a group,one by one. But they all arrived andd ound the complainant’s house empty. #160; They then dest the hohe house. door and louvreses wers wers were broken. And ong the fire started ited in the house. Each accused agreed thay whey were the oersonthe complainant’s house at the time the fire fire started.

I turn now to the nthe nature of the offence committed and this res a consideration of other aspects of the evidence.

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The first inquiry I make is whether one of the accused was responsible for setting the complainant’s house on fire. On thdence before me I am I am satisfied beyond reasonable doubt that one of the seven accused was responsible for the fire. There ievidence that the fthe fire could have been started by somelse or that it was accidentidental. d that no one else had anyd anything to do with the complainant (Mr Tarube) or his house.&#This brings me to consider ider the provisions of Sections 7 and 8 of the Criminal Code.

On the evidence before me I make the following findings:

(a) & that that the seven accused had gone to Alo Alo village to see the complainant concerning the death of the deceased Auda Gado.

(b) ; that each accksed knew whew why he was going toAlo ve, th to sayo say they they had had a common unlawful purpose.

I am satisfied that when the seven men set upon to destroy the compnt&#8 housy were doingdoing so i so in then the execution of the common unlawful purpose.

(c) ټ&#that that the fire fire was part and partial of the plan to take revenge against the complainant in light of the allegation of sorcery which was widespreadhe vi.

(d) & that that there here is n is no evidence that the accused Nou Beseko Gadiki withdrew from the common unlawful purpose in (b) above. Further tis no evidence thce that he communicated his withdrawal to the other accused.

Accordingly, on the basis of Sections 7 and 8 of the Criminal Code I find each accused guilty as charged.

VERDICT

Guilty as charged (all accused).

REASONS FOR SENTENCE

You seven (7) men have been convicted of the crime of arson pursuant to Section 436(a) of the Criminal Code. It is a sercrime with the the maximum penalty of life imprisonment but subject to Section 19 of the Criminal Code. The Court may impose ater rter term depending on the facts and circumstances of ease.

The facts and cand circumstances have been set out in the judgment I delivered on the 9th of September 1996. As I haid ts one of those hose sese serious crimes in our Criminal Code. Pment had decided that thet the penatly for setting fire to lling - house be life imprisonment subject to Section 19 of the Criminal Code.

A houA house is an important part of a person&#s existence. It is hiis his sheand a pl a place of rest. That ere he or she would kuld keep his or her only possessions which would have been accumulated over many years. And in most cases he resouresources may have been spent on building up a homehis or her family. It0; It is commone to know know that if the house is destroyed by fire it is a complete loss to a person.&#1n my view this should be anbe an aggravating factor.

The next aggravating feature of this case is that the action of the prisoners were in retaliation for the death of a relative. When you the news you weru were full of anger and acted on suspicion that Mr Tarube was a sorcerer. The took the law into your your own hands.

On the trial defence made an issue out of thue of the dwelling -house ause and its contents. In my view the valunot an t an element of the charge. This is because it does not matter if it is a complete building or a structure the offence remains a serious one. I am sati that the complaimplai#8217use was a permanermanent building which was built to last. I am sati that the vahe vahe value of the house was quite substantia60; These factors are against you.

On sentence I takI take the following factors into account in your favour:

(a) ;ټ that yoat yoat you are all young offenders:

(b) ҈ that yoat you are all firft offenders; and

(c) ҈ you allu all have been inocustody awaiting your trial for one and half weeks.

I also take accoour por mercy and leniency in your allocutus and and your your lawyer’s submissions.

Wi

Within the last six (6) months of 1996 sentences imposed by the National Court have varied from suspended sentence on good behaviour to six (6) years. I consider your casee in t in the middle range. Theence of the Court is this three (3) years imprisonment in hard labour less the one and a haeks each prisoner spent in custody.

I now made the following orders:

That thet the balance of your sentence (2 years, 11 months, 2 1/2 weeks) be suspended on the following conditions:

(a) &#that each of you be of goof good behaviour and to keep peace for a period of two years; and

(b) &##160;; that eaat each of h of you are to payensato thelainabukori Tarube in the followinlowing mang manner:

(i) ټ t60; that within six (6) sonths 0/03/ou construct a dw a dwellinelling house of the same size as that which was destroyed and of the same materials as follows: posts - ofrovesors - timber; walls - corrugated iron or as agreeagreed; rod; roof - of - corrugated iron; and

(ii) further payment to the complainant within the same period of the sum of K1,800.00 in cash.

Lawyer for the State: Public Solicitor

Lawyer for the accused: G Gamogab Lawyers