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State v Tree [1997] PGNC 23; N1525 (12 March 1997)

Unreported National Court Decisions

N1525

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 984 OF 1996
THE STATE
v
MAFU TREE

Waigani

Passingan AJ
4-5 March 1997
10 March 1997
12 March 1997

CRIMINAL LAW - Arson - Dissatisfaction about inaction - Whether Action Amount to a defence - lawful act - S. 436 Criminal Code.

SENTENCE - Factors for Consideration - National Parliament Building - Community Concern - motivates prisoner - Appropriate Sentence - Deterrence.

Cases Cited:

The are no cases cited in the judgment

Trial On Indictment

The Accused Mafu Tree pleaded not guilty to one Count of Arson pursuant to S.436(a) of the Criminal Code. The facts appear in the judgment.

Counsel:

Mr Kaluwin & Ms Suwai for the State

Mr F Alua for the accused

10 March 1997

PASSINGAN AJ: The accused Mafu Tree was charged that on the 26th day of April 1996 he wilfully and unlawfully set fire to the Parliament House situated at Waigani. There is no substantial conflict in the evidence.

The accused is a young man aged 21 years. He resides with his parents at Gerehu Stage 2. On the 26th day of April, 1996 at about 9.00 am he left his house to come to the Parliament House. He had a bag in his possession which contained a 2 litre Cordial bottle and a match. He got some petrol from the Gerehu Service Station. He arrived at the Parliament House and was allowed into the Public Gallery by Security Guards. He rested for a moment. He then poured petrol on several seats and on the Carpet floor. He then set them alight with a match. As he was walking out of the gallery he heard guards calling out that the Gallery was on fire. He was stopped by Security Guards and later taken by Police to the Gordons Police Station.

The first witness called in the State Case was Sergeant Leo Omakan, the Investigating Officer. He gave evidence of an Interview with the accused on the 27th and 28th of April, 1996. That the accused made admissions but that he gave reasons for his actions. The Record of Interview, handwritten and typed was marked “Exhibit G1 & G2.” His reasons to Questions 48 and 50.

“Q.48......

A. To talk to the Politicians they would not listen to you because we are nothing compared to them. What I did this time around will make them think real hard.

Q.50......

A. Yes, a fair bit of advise regardless of whether you are big man or not its high time that one has to think seriously and make a complete change of him/herself and be born again and look to God because through him everything will go well. I sometimes come to think of our spiritual lives that makes me often worry about it.”

The following witness’s Statements were tendered by Consent:

Eric Akesi Exhibit “A”

Dominic Walukia Exhibit “B”

Anton Korohi Exhibit “C”

Likot Kiare Exhibit “D”

Leslie Kaimalan Exhibit “E”

Peter Wangi Exhibit “FI & F2”

Geno Magu Exhibit “H”

Lua Boa Exhibit “I”

Most of these witnesses are security officers at the Parliament House. Jacob Wemen was one of them and was the final witness in the State case. The Gallery was filled with smoke. That the fire was put off by the automatic water sprinklers before the Fire Service vehicle arrived.

FINDINGS

On the evidence before me I make the following findings at the outset:

(a) that the Chairs or seats and the floor Carpets were affixed to the building and were part of the Parliament Building;

(b) that on the 26th day of April, 1996 between 9.00 am and 10.00 am the accused set fire to the Parliament House by setting fire on the chairs or seats and floor carpets;

(c) that the accused’s action was wilful, that is, his action was intentional and deliberate; and

(d) that the Crime of arson has been established.

ISSUES

The only issue before me now is whether or not the accused’s action was unlawful. According to the Oxford Dictionary, a lawful act is an act which conforms with or recognized by law.

In my opinion one does not need to go too far out of the wording of S.436 of the Criminal Code itself. That Section provides, in part:

“A person who wilfully and unlawfully sets fire to;

(a) a building or structure, whether completed or not or....

...

is guilty of a Crime.

Penalty: Subject to Section 19, imprisonment for life.”

Therefore, in my view the wilful or deliberate setting of fire to a building or structure is in breach of S.436 of the Criminal Code, and therefore unlawful.

I have to consider the lawfulness or otherwise of the accused actions in light of his reasons. I am satisfied that his reaction is that of an ordinary reasonable citizen of Papua New Guinea. He expressed the very widespread dissatisfaction the ordinary citizens have because of the actions and decisions made by the leadership of this Nation. That is, the concern for the rights and welfare of the little man on the Street. And also the concern for a “God-fearing” Nation. The hope that every person including the leadership should consider turning their lives over to God.

The next consideration is whether the reasons given are sufficient to excuse him from Criminal liability (as a defence). Part 1 Division 5 (ss.22-36) of the Criminal Code Chapter No. 262, sets out the recognized defences available to persons charged with offences against any law. In my view the accused’s reasons are not sufficient to excuse him from Criminal liability. But they may be relevant on the question of penalty.

I therefore, find the accused guilty of the Crime of Arson under the indictment, that is to say, that he wilfully and unlawfully set fire to the Parliament House, a building situated at Waigani.

VERDICT

Guilty of arson.

REASONS FOR SENTENCE

12 March 1997

PASSINGAN AJ: You have been convicted of a serious Crime. Subject to S.19 of the Criminal Code, the maximum penalty is one of life imprisonment. The Court found you guilty on a charge of arson, that on the 26th day of April, 1996 you wilfully and unlawfully set fire to the Parliament House, a building situated at Waigani.

The facts are simple and not in dispute. You had reasons and you planned what you were going to do. And you carried out your plans on the 26th of April, 1996. But as the Court found the manner in which you expressed your dissatisfaction was against the law. Your belief or concern cannot excuse you from criminal liability. That is, it is not a defence recognized by law.

In deciding what penalty to impose upon you, in my view I am not permitted to be influenced by the fact that this is the most important building in the Nation. That factor alone should not aggravate the Crime, unless your intention was to destroy the building. On the evidence your intention was to draw the attention of the leadership (politicians) to widespread dissatisfaction over many things.

Section 436 of the Criminal Code does not distinguish the different types of buildings or the value of damage caused. The penalty is the same for any type of building or structure whether completed or not.

At the outset this is a serious Crime. Also this is an important building in the Nation. I have some difficulty here. On the one hand your reasons for doing what you did are shared by many in the communities and throughout the Country. And your action was aimed at the leaders, about 109 of them in Parliament. On the other hand the Parliament House is the central point of Papua New Guinea, the seat of the Government. Furthermore, you have the majority of the population (3-4 million) who will be affected. This consideration must be understood for the purposes of considering sentence and punishment.

In this case I have to treat you the same as other offenders charged with this Offence. In your favour I take into account the following factors:

(a) that you are a young man age 21;

(b) a first offender;

(c) good background and Character as deposed to by your Pastor, John Poha; and

(d) although your action amounted to a crime in the end, your intention was to express a widespread concern or views of the communities of Papua New Guinea.

I note that up to August 1996 sentences imposed by the National Court varied from suspended sentences on good behaviour to six (6) years.

Taking all the circumstances into account I consider the deterrent aspect an overriding factor in considering your penalty. My conclusion on penalty is that a sentence of four (4) years imprisonment in hard labour is appropriate.

SENTENCE

4 years imprisonment in hard labour.

ORDERS

(1) I order that you serve eight (8) months of your sentence.

(2) Further order that the balance of 3 years 4 months be suspended on the condition that you be of good behaviour for a period of 24 months.

(3) Bail be refunded.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: