N2563

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1089, 1120, 1122, 1123, 1133, 1136, 1137, 1138 & 1139 of 2002

THE STATE

-V-

ENNI MATHEW,
EMIL KONGIAN,
JEFFREY WINJAT,
DENNIS NOBI,
ROGER GISA,
BASIL SINGAWI,
JACK KAM,
FREDDIE KAM AND
LEONARD MAMBU
(No. 2)

WEWAK: KANDAKASI, J.
2003:14th and 29th October

DECISION ON SENTENCE

CRIMINAL LAW - PRACTICE & PROCEDURE – Sentence - Pre-sentence report not recommending suspended sentence or payment of compensation – Victims preferring custodial sentence or substantial compensation beyond legislative limits – Prisoners having no means to pay – Commission of offence a collective tribal or clan act – Collective responsibility called for – Appropriateness of tribe or clan responsibility - Criminal Code s.436 (a) – Criminal Law (Compensation) Act.

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentence - Arson and unlawful deprivation of liberty - Cumulative or concurrent – Different victims, same transaction, same day but different location with one continuing over a period – Cumulative sentence reduced on crushing principle – Criminal Code s. 355 – Constitution s. 42. 

CRIMINAL LAW - Sentence – Arson – Four bush material dwelling houses - Group raid – Raid in contempt of Court Order - Conviction after trial – First time offenders except for one – Expression of remorse – Prevalence of Offence – Guidelines for sentence in arson cases – Part custodial and part suspended sentence called for provided tribe or clan pays for value of property destroyed - Criminal Code ss.19 and 436 – Criminal Law (Compensation) Act.

CRIMINAL LAW – Sentence – Unlawful deprivation of liberty – Offence breach of the Constitutional right – Guidelines suggested and followed – Maximum penalty to be reserved for worse case – Sentence of 1 year 6 months imposed– Criminal Code s. 355 – Constitution s.42. 

Cases cited:
The State v. Andrew Yeskulu (unreported and yet to be numbered judgement delivered 24/04/03) CR 1431 of 2002.
The State v. Ipu Samuel Yomb [1992] PNGLR 261.
The State v. Robin Warren & Ors (No.2) (unreported judgement delivered on 20/06/03) N2418.
The State v. Henny Wamahau Ilomo (unreported and yet to be numbered judgment delivered 13/10/03) CR 546 of 2003.
The State v. Irox Winston (unreported judgment delivered on 13/03/03) N2347.
Ala Peter Utieng v. The State (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000.

Counsel:
M. Ruari for the State
S. Maliaki for the Prisoner

29th October, 2003

KANDAKASI J: 	After a trial, on the 19th of June 2003, you were all found guilty and convicted on 4 charges of arson for burning down 4 bush material dwelling houses, contrary to s. 436 (a) of the Criminal Code out of a total of 12 charges presented against you. Also, you were found guilty and convicted of 1 charge of unlawful deprivation of liberty. 

These offences were committed out of a pre-existing land dispute and animosities arising out of that. I therefore decided to defer sentence to enable you and your people and those of the victims of your offences to come up with a proposal on sentence that could help resolve the existing differences. Such a proposal was to be submitted to the Court within 1 month from 19th June 2003. I now have a pre-sentence report from the Probation Service, indicating no sign of making peace between you and your people on the one side and the victims’ people on the other. Given this position, your victim’s prefer you to be given a custodial sentence, unless the Court can order and you are able to pay compensation up to K30,000.00. On your side, you prefer a suspended sentence with compensation in terms of K900.00 for unlawful deprivation of liberty and a sum between K1,000.00 and K2,000.00 for arson.

The report also notes that, this is a difficult case. Its author was not able to contact and get inputs from the nearest church and government official, notwithstanding the passage of more than 3 months. The only official input in the report is from the Chairman of the Karawari Community Government. His suggestion is for the Court to order you to do community service at Amboin Station.

In view of this position, it is important that the Court carefully consider the factors operating for and against you before arriving at a decision on your sentences. That requires a close examination of the facts disclosing the circumstances and the way in which you committed the offences. It also, requires a consideration of each of your personal backgrounds and the situation back in your village or community as well as the relevant law and practice relating to sentences in the kind of offences you have committed.

The Facts

The relevant facts are fully set out in the decision on verdict. However, for the purposes of sentencing, I note that this was a case of a whole group of men deliberately setting out to destroy their tribal opponents’ houses. This came about after a land dispute and after its resolution by a Local Land Court in favour of your victims. After the Local Land Court awarded the land to your opponents on the 18th July 1988, they put up buildings and made gardens on the disputed land. On the day of the offences, 2nd October 2001, Leonard Mambu went to the subject land and questioned an old man Otto Samun working on his gardens. You challenged him as to his ownership of the land.

Seeing and assessing what you were doing as wrong, witness Dombi Damien offered support to Mr. Samun. You got angry over that and said, you will burn the buildings on the land and waived a gun you had with you that time. You then returned to your village and later went with your co-prisoners and burnt down the buildings that were there.

In the process, you captured and took with you, against his will, a Dombi Damien to your village. Jeffery Winjat caught him as he was trying to escape. Then all of you took him to your village after having punched, kicked and blind folded him and tying both of his hands. He was further assaulted upon arrival at your village. You used an axe, a bush knife, punches and kicks against him. He sustained a broken tooth and you kept him as a captive for two weeks until police freed him.

Submission

In your lawyer’s submission, she argued for a part suspended and custodial sentence. In so submitting, she pointed out that you are prepared to pay a total of K900.00 to the victim of the deprivation of liberty offence and a sum between K1,000.00 and K2,000.00 for the burning down of the houses. At the same time, she asked the Court to take into account the contents of the pre-sentence report and arrive at a sentence that the Court considers is appropriate.

The State referred to my judgement in The State v. Andrew Yeskulu and submitted that your case falls in the second category. Other than that, the State made no other submissions and left it to the Court to arrive at a sentence it considers appropriate.

The Offence

Section 436 of the Criminal Code, creates and prescribes the offence of arson and its penalty in these terms:

"436.	Arson.

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."

As I said in The State v. Andrew Yeskulu,  Parliament considered this offence as very serious. It therefore prescribed the maximum penalty of life imprisonment after considering all things. This is however subject to the discretion vested in this Court under s. 19 of the Code to impose a sentence lower than the prescribed maximum.

In the case cited, I noted that, the Supreme Court has not yet provide us with some guidance on how to approach sentences in arson cases. At the same time, I noted that, there are a number of National Court judgments, which provide some guidance. Out of these judgments, I expressed the view that the case of The State v. Ipu Samuel Yomb provides some guidance. After considering the effect of that and other cases, I tried to provide some guidelines for sentencing in arson cases and did that in these terms:

… [J]ust as all the other offences have their … categories, arson cases have their own categories. Without limiting the list, I list below the kind of category a case of arson may fall under:

1.	A dwelling house with people inside;
2.	A dwelling house without any occupants;
3.	Public institutions such as schools, hospitals, or offices with occupants inside; 
4.	Public institutions such as schools, hospitals, or offices without occupants inside; and
5.	A house wind or a garden house or a run down and deteriorated or incomplete structure. 

Then of course other factors such as the type and value of the building, whether bush material, whether the offence is committed with premeditation with the aid of substances like kerosene or other such highly flammable substances like that would be relevant factors in aggravation. Similarly, a not guilty plea resulting in a conviction and or the offender having a prior conviction are factors in aggravation. At the same time, the opposite of these factors may operate in the offender’s mitigation."

I went on to express the view that, the kind of sentences that have been imposed to date, from wholly suspended sentences to effective 5 years to date have failed to deter other would be offenders from committing this kind of offences. Further, I noted that, in this province alone, there are a good number of arson cases pending on the list for trial, some of which I have now dealt with. The more recent of this was a case of group attack led by five (5) persons who had acted in association with each other. That was in the case of The State v. Robin Warren & Ors (No.2).

Moreover, I observed that, there are many instances of people everywhere in the country with more frequency in the highlands provinces, in association with tribal fights fearlessly and without hesitation burning down a lot of public institutions and dwelling houses.

To counter that increase, I said sentences should seriously increase because the offence of arson is an affront to progress just as other serious crimes such as rape, murder and armed robbery are. I went on to note that this is why Parliament has prescribed the maximum of life imprisonment. Yet this Court has seen fit to impose sentences well below life imprisonment, which I failed to see how they compared with the loss and suffering such an offence brings upon its victims.

Bearing these in mind, I said a sentence for a case of arson falling in the first, second, third and fourth categories without any aggravating factor should start at a minimum of 10 years. However, where there are factors in aggravation, the sentence should increase to terms beyond that up to the maximum prescribed sentence of life imprisonment in the more serious of cases. Then of course, in a less serious case of arson falling in the last category sentences should start at 5 years where there are no factors in aggravation. Where there are factors in aggravation, the sentence may go beyond that. At the same time, I said in exceptional cases where there are very good mitigating factors with the support of a pre-sentence report, a sentence below what is recommended or a wholly suspended sentence may be imposed.

In expressing those views, I also said and I maintained the view that:

"… [O]nce a person is found guilty of a crime, the onus is on him to show by appropriate evidence that he should not he given the maximum prescribed sentence. This follows from my view that the presumption of innocence under the Constitution applies only up to the point when guilt or innocence is decided against an accused person. For the protection is in terms of an accused person being "presumed innocent until proven guilty according to law." Where a prisoner fails to do that, it means he has no reason to expect a sentence other than the maximum."

Taking into account these considerations, I imposed a wholly suspended sentence of 7 years on strict terms in The State v. Andrew Yeskulu. In so doing, I took into account the fact that the prisoner was a first time offender acting with only one other person in retaliation of a council election lost by his uncle. I also, noted that the offender pleaded guilty to the charge of burning down only one bush material building, housing three classrooms. Also, the value of the building and its content was around the K1,000.00 mark. Further and more importantly, a pre-sentence report recommended such a sentence on conditions including an order for reconstruction and replacement of the building as the offender had already taken steps toward doing that.

In the subsequent case of The State v. Henny Wamahau Ilomo, I imposed a similar sentence. That was also a case of guilty plea by a first time offender, he in fact rebuild a total of 3 bush material houses, one a dwelling house, a firewood shed and a kitchen. There was also a pre-sentence report recommending and supporting a non-custodial sentence. Further, the offender acted alone based on a belief that the victim through sorcery had killed his sister. 

In the case of The State v. Robin Warren & Ors, I imposed a custodial sentence of 15 years against 2 first time offenders and 16 years against one of their co-offender who had a prior conviction and another who was a serving soldier. Their conviction was after a trial and even after that, they expressed no remorse. Further, the offence was in the course of a raid on an entire village or settlement in retaliation of a death. The destruction included 19 houses and a motor vehicle. Most of the victims of the arson had nothing to do with the death. The prisoners used firearms, bush knives, and other such offensive weapons to facilitate the commission of the offences.

Sentence in Your Case

In your case, you led a group of men acting in concert deliberately setting out to destroy houses and property belonging to the Sangriman people. You had a pre-existing conflict with the Sangriman people over the land on which the offences were committed. That dispute went before the Local Land Court. The Court granted the land to the Sangriman people. Based on that decision, the Sangriman people made gardens and constructed buildings on the land, which made you unhappy. You therefore continued to take issue on the Sangriman people’s right of ownership. Instead of either appealing or seeking a judicial review against the Local Land Court decision, you chose to become a law unto yourselves. You acted in total contempt of the Court decision. This is a very serious thing to do and it calls for a stern punishment.

There is no assistance from counsel as to how I should approach an appropriate sentence for you. I am therefore, left to do the best I can based on my own limited research whilst on circuit to a place like Wewak without a library. With this disadvantage, I note that the offences were committed in one transaction, involving the same parties when viewed in the context of one tribe attacking another. But, when they are viewed in the context of four separate individuals who owned each of the houses, it is really four separate offences against four different people although in the one transaction on the same day.

In the circumstances, I could treat this as one charge of arson as I did in Robin Warren & Ors but involving the burning down of 4 houses or arrive at a separate sentence for each of the charges and order that to be served concurrently or cumulatively. However, a consideration of the principles governing whether a sentence should be made concurrent or cumulative dictates, in my view, a determination of the sentences for each of the charges separately and then decide whether or not to order the sentences to be served cumulatively or concurrently. Before proceeding further, I remind myself of the correct principles per my summary of it in The State v. Irox Winston in these terms:

"1.	The National Court has a discretion whether or not to make a sentence cumulative or not;
2.	An exercise of that discretion is to be guided by well-known principles;
3.	The principles are:
a.	the ‘one transaction rule:’ where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent; 
b.	where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. For example, burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims; and.
c.	the ‘totality rule or principle:’ when the sentencer has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total."

Going by these guidelines, more particularly 3 (b) and (c), I consider a cumulative sentence that is not crushing on each of you appropriate.

In addition to the burning down of the 4 houses, you also took against his will one of Sangriman’s young men, Damien Dombi. You kept him in your captivity also against his will. In the process, you caused him serious personal injuries. Police rescued him at substantial costs to the Sangriman people, according to the information in the pre-sentencing report. The conflict between your people and the Sangriman people is an ongoing conflict. So, the Court made a recommendation, as already noted, for you to come up with a proposal that might help resolve this ongoing conflict and deferred sentence. But that appears to have fallen on deaf ears except for a preparedness to pay a compensation of K900.00 for the deprivation of personal liberty and a sum between K1,000 – K2,000.00 for the buildings you burnt down.

The offences you committed are very serious. Indeed, as evidenced in this case, it is very destructive to the peaceful living of civilized people and the progress of a people and a nation. It is the commission of such offences that is becoming a serious affront against the education and development of our children of today and business and government leaders of tomorrow. It sees to waste in a matter of seconds, years of hard work and in some cases, years of savings. The offence of arson in the context of a tribal or conflicts between two people is very prevalent in this province and the highlands and is being carried over and introduced into other places where people originally from these provinces are settled elsewhere in the country. Accordingly, I repeat what I said already in The State v. Andrew Yeskulu that:

"The sentences therefore have to be seriously increased with a view to deterring other would be offenders … Parliament has prescribed the maximum of life imprisonment. But this Court has seen fit to impose sentences well below life imprisonment. I simply do not know how a mere 4 years or 5 years or worse still a wholly suspended sentence compares or comes anywhere closer to life imprisonment and or the loss and suffering such an offence brings upon its victims." 

In expressing those views, I also said in The State v. Andrew Yeskulu and I maintained the views I expressed and quoted in the earlier past of this judgment.

Going by the guidelines, I suggested in The State v. Andrew Yeskulu, I find that your case falls in the second category. This means I must start with a sentence of 10 years. Then depending on the factors operating for and against you, the actual sentence for you could be above or below that.

The circumstances in which you committed the offence as already pointed out above, points to a serious case of arson. They operate against you. In addition to that, you have pleaded not guilty. That meant more expenses for the State in terms of calling witnesses, and the costs of mounting a trial. It also meant more Court time, thereby preventing the Court from reaching other cases that are still properly waiting for their trial dates. At the end of the trial, you have been found guilty on 4 counts of arson and one count of unlawful deprivation of liberty with personal injuries occasioned to your victim, Damien Dombi. 

Despite the evidence of the presence of guns, bush knives, and other offensive weapons, I rejected the evidence on this purely on a technical legal point. This could be a factor against you but in view of my ruling, I will not take this into account against you. 

Another factor against you is that you all acted in concert with Enni Mathew, who is your local councillor. Councillors are duty bound under our system of government to lead their local communities to leave peacefully and not to take the law into their own hands. It is already bad enough for a councillor to sit back and do nothing when someone to his knowledge is breaking the law in his own ward or area, but it is even worse when he in fact takes up arms or encourages and acts in concert with his people against others. They are the immediate government and law enforcement agents on the ground. Conducting in the way you, Ennie Mathew behaved in this matter amount to a breach of the trust and confidence, the people place in such persons to lead them peacefully into peace, security and prosperity.

Next and more seriously, this is a case of arson in total defiance of a Court ruling and in pursuit of a baseless tribal or communal position. When a Court makes a decision, the parties should abide by it, save only for their right of appeal. Once a dispute reaches finality with a final decision on the matter, it should be respected and generally is. What you did was a very serious act on your part. It amounted to contempt of Court, the penalty for which has no limit. It is usually at the pleasure of the Court subject to the general sentencing principles a Court should take into account. You showed no respect for the law, let alone, a decision of the Court. In my view, this alone calls for a sterner punishment to serve both as a personal deterrent to all of you, the people in this province and throughout the country generally.

Finally, I note that, you were all grown-ups at the time of the commission of the offences, although I note that Dennis Nobi and Roger Kisa claim to be aged 19 and 20 years respectively. There is no evidence of any or all of you having a mental defects to a point where you could not tell right from wrong and vice versa. I therefore find that, you were all of sound mind and fully appreciated the fact that, what you were doing was wrong and unlawful. Yet you went ahead and caused the destruction you brought about in total defiance of a Court ruling.

Against these, aggravating features is the fact that, you are all first time offenders and that you have expressed your remorse for having committed this offences. This means you have been law-abiding citizens until you committed these offences. It would therefore, appear that this is the first ever time in which, you have placed yourself on the wrong side of the law and that you are sorry for what you have done. There is however no evidence of you having said sorry and making it right with the victims of your offences, despite a decision on your sentence being deferred for almost three months purposely to enable you to explore such prospects. Of course, you might say you were all in custody and that made it difficult to explore such prospects. I am not convinced that this is a good excuse for the simple reason that this was your tribe or clan attacking another. There is no evidence that you men alone constitute your tribe or clan. This means other members of your tribe or clan should have taken the lead to attempt a restoration of peaceful existence between your tribe or clan and your victims. Also, there is no evidence of you sending any word following the decision to defer sentence for the remaining members of your tribe or clan to do something about it.

It is clear law now that, a mere expression of remorse without anything tangible means nothing. The Supreme Court in Ala Peter Utieng v. The State made that clear when it said:

"Besides, as we said yesterday in the Rudy Yekat case, the Appellant's utterance of sorry must be accompanied by something tangible which befits the wrong he has brought upon the victim, her family and relatives, if such utterances are to be of any value and meaning. In the present case, there is no evidence of the Appellant paying any compensation or has taken any step to correct the wrong he has perpetrated. This Court or any other court for that matter should be slow to act on such meaningless and or valueless pleas for mercy or leniency."

What this means in effect is that, your saying sorry for having committed the offences should not operate in your favour. This should particularly be the case, when you denied the charge forcing the victims to come into Court and relive the bad memories you have inflicted upon them. In other words, if indeed you were sorry for what you have done, you could have pleaded guilty but you did not. So your belated expression of remorse means nothing and can be of no help to you.

The other factor in your favour is the fact that, no one was inside the buildings when you burnt them down. Hence, no human lives were lost, except for the unlawful taking into your captivity and imprisonment of Damien Dombi. 

Similarly, there is no evidence of you using dangerous substances such as kerosene or such other highly flammable substances to execute your offence. Notwithstanding that, the buildings were made of bush material so I do not consider the lack of any such substance could have made any difference because the result would have been a total destruction, which is what you achieved. Further, proceeding on the basis of my ruling in relation to the carrying and use of a gun, I note that, you did not carry such a weapon and used it. There is however, no issue that you were otherwise armed and you used those weapons to execute the destruction.

Weighing both the factors against you and those in your favour, it is open to this Court to impose upon you the maximum prescribed sentence of life imprisonment. However, I am mindful of the well-accepted principle that the maximum prescribed sentence in any case must be reserved for the worse kind of the offence under consideration. I do not find your case falling into the worse kind of arson, especially when no lives have been lost and the total value of the property destroyed and therefore lost is not substantial. Nevertheless, it is a serious case of arson particularly when you acted in defiance of a Court ruling for the reasons already mentioned.

Your case is similar to the case of The State v. Robin Warren & Ors. That was also a case in which a whole group or community acted against another. Robin & Ors, was also a case in which, the offenders were found guilty and convicted after a trial. But, it is distinguishable in a number of respects. First, the offences in the case cited were committed in retaliation over the killing of one of their women by a woman from the victims’ side. You acted in defiance of a Court ruling awarding a land in dispute between your side and the Sangriman people. This makes your case more serious than the case cited. In that case the total houses and properties destroyed stood at 19 bush material dwelling houses and a motor vehicle. In your case, you have been found guilty of burning down 4 bush material dwelling houses. Obviously, the number and value of buildings and property you destroyed were less comparatively. Thirdly, the offences in the Robin Warren & Ors case were committed closer to Wewak town where the offenders could have easily sought and secured the assistance of the police in relation to the killing, but they chose not to. You were quite far away from the nearest government station. That is not however, a significant factor, because, in your case, there was a subsisting conflict or dispute between you and your victims. A Court decision resolved that dispute. In Robin Warren & Ors, the offenders were armed with guns and other weapons, which they used to execute the offences. In your case, you were armed with weapons other than guns, which you used to execute the offences. Finally, in your case, you also committed the additional offence of taking away and depriving the liberty of Damien. 

A close examination of your case and that of Robin & Ors in respect of the case of arson, your case is less serious only by reference to the number and value of property lost. Otherwise, your case appears to be on the same footing as in Robin Warren & Ors. Taking these and all the other factors I have already covered into account, I am of the view that a sentence above 10 years, but below 15 years is appropriate. I consider a sentence of 12 years in hard labour appropriate for each of the charges. Then going by the principles I have already discussed, I order you serve this cumulatively, giving a total effective sentence of 48 years. Then applying the "totality principle" I am of the view that, that would be crushing on you all and would appear quite unfair when contrasted with the sentence in Robin Warren & Ors case. I therefore adjust the total sentence down to 12 years for all of the offences.

Out of that, 12 years, I will reduce it by 1 year for Denis Nobi and Roger Kisa by reason of your respective ages of 19 and 20 years respectively, bringing the effective total to 11 years each for you two. In arriving at that view, I have taken into account the fact that your other co-prisoners, but more particular Leonard Mambu and your councillor, Enni Mathew, led you. In addition to what I have already said about Ennie Mathew, I find that without their leadership, the offences might not have been committed. Similarly, you might not have been able to persuade them against the commission of these offences, given your age. 

Then proceeding on the same basis, and what I said in respect of what your councillor, Ennie Mathew should have done, I find that the role you, Leonard Mambu and your councillor, Enni Mathew played was critical to the commission of these offences. If you exercised your good conscious and leadership, these offences could not have been committed. You two therefore, deserve a higher sentence to demonstrate that, what you two did is unacceptable. Such a sentence I hope will serve as a personal deterrent to you two and a general deterrence to people in your area, the province and the country. For these reasons, I order that each of you serve an addition 2 years on top of the adjusted cumulative sentence of 12 years making a total of 14 years.

In relation to the unlawful deprivation of liberty, I note s.355 of the Criminal Code creates and prescribes its penalty in the following terms: 

"355.	Deprivation of liberty.

A person who unlawfully—

(a)	confines or detains another in any place against his will; or
(b)	deprives another of his personal liberty,

is guilty of a misdemeanour.

Penalty:	Imprisonment for a term not exceeding three years."

There appears to be no case dealing with an offence under this section. Perhaps this is because this offence is a misdemeanour and that it attracts a sentence not exceeding 3 years. Therefore, I am proceeding to deal with your case without any precedent assisting.

Section 42 of the Constitution guarantees the liberty of a person. Hence, when a person unlawfully deprives the liberty of another is not only an offence but, also a breach of the victim’s constitutional right. It is therefore, a serious matter to unlawfully deprive the liberty of another person. However, this does not mean an automatic imposition of the prescribed maximum sentence of 3 years. Instead, this requires a careful consideration of the particular facts surrounding the commission of the offence before arriving at a sentence. 

A case of simple unlawful deprivation of liberty deserves a sentence ranging from a few months to say a year, while one, which involves violence and injury or damage to the victim, should attract an imposition of the maximum prescribed sentence of 3 years. Between these two ends could be cases that are neither serious nor simple cases of unlawful deprivation. They should attract sentences between 1 year and 2 years. Of course, other factors such as prior convictions and conviction after a trial are factors in aggravation dictating a higher sentence. On the other hand, a guilty plea by a first time offender may attract a lower sentence.

In your case, you all acted in the company of each other. You took your victim against his will from his tribal territory. The mere fact of entering the victim’s land or territory without his or his people’s permission was in itself an offence, namely being unlawfully on premises. Additionally, your doing so, was also in contempt of the Local Land Court decision giving the land to the Sangriman people. This was also a very serious conduct on your part. You then took him to your village and kept him there against his will for about a week. Additionally, you went on to inflict personal injuries to him both during the taking and after landing him in your village. Finally, your conviction was after a trial. 

Against this, the only factor in your favour is the fact that you are all first time offenders, though I consider the involvement of your councillor, very serious. Likewise, I also consider the role Leonard Mambu played in leading you all to commit this offence is serious. These factors warrant a sentence between 1 year and 2 for all of you except for the councillor and Leonard Mambu. They deserved stern punishments to show the community’s disapproval of the kind of part they played in the commission of this offence. Taking all of these factors into account, I consider a sentence of 1 year 6 months appropriate for all of you and a sentence of 2 years appropriate for the councillor and Leonard Mambu for reasons already given. 

This offence was committed at the same time as the four instances of arson. However, it was committed against a different victim and the act of deprivation continued over a period, until the police rescued the victim. I consider a cumulative sentence with your arson sentences in these circumstances appropriate, and I so order. 

Finally, considering the fact that you have a long existing conflict between your people and the Sangriman people, it would be appropriate to allow an opportunity to make peace between yourselves and them. Accordingly, based on your preparedness and the fact that this was more of a tribal or clan offence, I would order compensation. That would be in terms of K900.00 for the unlawful deprivation of Damien Dombi’s liberty and a further K4,100.00 for the destruction of dwelling houses to be paid within 12 months from today, by your people, that is the people of Mamari to the Sangriman people. Provided these compensations are paid within the specified period, I would order a reduction of each of your cumulative sentences by one-half and you be released on your own recognition to keep the peace. Except for the purposes of your people making the compensation payments and the Sangriman people receiving it and or otherwise making peace, I order that the respective sides keep your distance and away from each others territories. I consider these appropriate and I so order.

In summary, I order that you all serve your following effective sentences in hard labour at Boram CIS:

NAME	ARSON	UNLAWFUL DEPRIVATION OF LIBERTY	TOTAL	
Leonard Mambu	14 years	1 year 6 months	15 years 6 months	
Enni Mathew	14 years	1 year 6 months	15 years 6 months	
Denis Nobi	11 years	1 year 2 months	12 years 2 months 	
Roger Kisa	11 years	1 year 2 months	12 years 2 months	
Damien Kogian	12 years	1 year 2 months	13 years 2 months	
Freddy Kam 	12 years	1 year 2 months 	13 years 2 months	
Jeffery Winjat	12 years	1 year 2 months	13 years 2 months	
Blacius Singat	12 years	1 year 2 months	13 years 2 months	
Jack Kam	12 years	1 year 2 months	13 years 2 months	

From these sentences, I order that, the period you have already spent in custody awaiting your trial and sentence. This sentences will be further reduced by one half provided the order for compensation is met within 12 months from today. 
_______________________________________________________________________
Lawyers for the State:			Public Prosecutor
Lawyers for the Prisoners:		Public Solicitor