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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1431 of 2002
THE STATE
PRODIE AKOI
& STEVEN AKOI
VANIMO: KANDAKASI, J.
2004: 8th and 23rd March
CRIMINAL LAW – PRACTICE & PROCEDURE – Guilty to plea to charge of arson – Restitution – Means assessment and pre-sentence report – Request and consideration of – Community prepared to assist accused to rehabilitate and supervise community based sentence – Victims opposed to restitution –Restitution inappropriate - ss. 2, 3, 4, and 5 of Criminal Law (Compensation) Act – ss. 19 and 436 of the Criminal Code.
CRIMINAL LAW – Compensation – Compensation mitigating factor only – No compensation order can be made unless a means assessment report confirms prisoner having means.
CRIMINAL LAW - Sentence - Arson - Dwelling house with use of petrol in retaliation of perceived sorcery killing - Guilty plea – Prisoner prepared to rebuild and replace contents lost - Means assessment and pre-sentence report support accused position and recommend non custodial sentence – Victims not preferring restitution - First time offender – Expression of remorse – 10 years part suspended sentence imposed – ss.19 and 436 of the Criminal Code.
Cases cited:
The State v. Micky John Lausi (27/03/01) N2073.
The State v. Abel Airi (28/11/00) N2007.
The State v. Dobi Ao (N0.2) (01/05/02) N2247.
The State v Otom Masa (20/12/00) N2021.
The State v. Andrew Yeskulu (Unreported judgment delivered 24/04/03) N2410
The State v. Ipu Samuel Yomb [1992] PNGLR 261
The State v. Ennie Mathew & Ors (No. 2) (Unreported judgment delivered on 29/10/03) N2563
The State v. Robin Warren & Ors (No.2) (Unreported judgment delivered on 20/06/03) N2418
Counsels:
Mr. F Popeu for the State
Mr. L. Kari for the Prisoners
23rd March 2004
KANDAKASI J: Both of you pleaded guilty to one count each of arson of one dwelling house belonging to a Ben Ralil on Ali Island, Aitape, West Sepik Province on 26th January 2002 contrary to s.436 (a) of the Criminal Code. Following your guilty plea, the State admitted into evidence the District Court depositions without any objection from you. I then read and considered the evidence against you. Based on the material in the depositions, I was satisfied that, there was enough evidence to support your guilty pleas. I therefore accepted your guilty pleas and convicted both of you on the charge presented against you.
Address on Sentence
After having decided to accept your guilty pleas and convicting you, I then asked you to address me on sentence. In response to that, you both said sorry for what you have done. You also informed the Court that you tried to correct your wrong by trying to convince the victims to agree to you rebuilding of the houses and replace their contents but the victims have not agreed. Instead, they have decided to leave the matter to the Court. You went on to inform the Court that, you are still prepared to rebuild the buildings and replace its contents. In addition, you informed the Court of your respective family backgrounds and pleaded for mercy or leniency from the Court.
Your lawyer then applied for a pre-sentence report and an adjournment for further address on your sentence until the report is furnished. I granted that application. The pre-sentence report is now in and is inclusive of a means assessment. Your lawyer made submissions on your behalf, essentially arguing for a non-custodial sentence with an order for a rebuilding and replacement of the contents having a total estimate of K64, 000.00. This submission proceeds on the basis that firstly, you are both first time offenders, meaning this is the first ever time you have been in trouble with the law. Secondly, you acted upon a desire to retaliate what you believed to be a sorcery killing of your brother by the victims of your offence. Thirdly, you pleaded guilty to the charge, which saved the State considerable time and money. Thirdly, you have the means to rebuild the house and replace the contents that were lost in the fire.
The State is not opposed to the submissions of your lawyer, provided such a sentence is on conditions. However, the victims are opposed to any order for restitution saying they have already commenced rebuilding and they do not need any help from the two of you. They also say that some of the items as being owned by you are in fact owned jointly with others in the village and they do not wish that those be disposed to their favour as those others having interests in the properties will be affected.
It is within the discretion of the Court to determine an appropriate sentence in every case that comes before it. A number of factors play an important part in the exercise of that discretion. These include the particular facts and or the circumstances in which an offence was committed, the antecedents of the offender, whether conviction is on a guilty plea or a after a trial and the nature of the offence itself.
Facts
Therefore, firstly, what are the facts and circumstances in which you committed this offence? On Saturday 26th January 2002, the body of your then deceased brother, a Samson Awep Akoi arrived at Ali Island from Aitape in a convey of four dinghies. Upon arrival, Prodie stated, "I am fed up, we will see what will happen today." Then as the coffin holding the deceased was being moved from the dinghy it was on, Prodie hit the coffin and said "Come on Samson, wake up, do something and show us."
According to witness statements, the coffin or the deceased did not move and or make any sign and it was taken into your family’s house. Not long after, Steven you came out of the house. You then broke a piece of laplap and tied it to a stick and you repeated your earlier statement, "Come on Sampson, wake up and show us." Thereafter, the coffin with the deceased body in it was taken around your family house by yourselves with the help of others and followed a track leading to Chaltaleo village and then to Aitalal village. You finally came to a stop at Ben and Nick Raril’s house.
As you carried the coffin around, a Jeffery Mayaus was seen carrying a 20-liter plastic container with half-full petrol. Steven took the petrol, broke open the main door to the Rarils’ house, poured the petrol all over the inside of the house from the bedroom, and set it on fire. At that time, a baby boy, Moses Patrick was asleep in the house. On realizing what was happening, the baby’s father ran into the house and saved him. Not long and the fire completely burnt down the Rarils’ house as well as a nearby house belonging to a church (A. O. G.) pastor with their contents.
The total estimate of the value of the items lost in the fire is put at K64,000.00. These included 2 outboard motors, a sawing machine, outboard motor engines, a stereo set mechanical and carpentry tools, materials and parts.
In your respective records of interview, you do not dispute most of these facts except in only one respect. You say that your deceased brother showed who was responsible for his death by moving the coffin and leading you to the Rarils’ house. Then in Court and in particular, in your respective addresses on sentence, both of you said, you tried to correct your wrong by trying to rebuild the houses and replace their contents but the victims did not welcome that, that is why you are in Court. You told the Court that you remain ready to rebuild the houses and replace their contents. Based on that, you asked the Court to give you the opportunity to do that and for that purpose, you further asked the Court to give you a non-custodial sentence.
In the circumstances, I considered it appropriate that I should call for a means assessment and a pre-sentencing report and I made the appropriate orders on 8th March 2004. Two reports covering these aspects are now before this Court together with the victims’ views on rebuilding and restitution. The Court expresses its appreciation to the probation service here in Vanimo for the report.
The reports report that, you have the means to rebuild and replace the buildings and the other items of value that were destroyed. The sole source of the means to meet such an order is an electrical business owned and run by Prodie. Steven works with Prodie in that business. There is no cash follow say for the last two years, to demonstrate the kind of income this business has generated and is capable of generating. There is also a list of items of value that are said to be owned by you. However, the victims say you two do not solely own these items. Other people in the village also have interest in them.
Appropriate Sentence
I maintain the view that imposing a suspended sentence is not an exercise in leniency. However, it is a form of punishment aimed at achieving one of the purposes of criminal sentencing which is rehabilitation. I also maintain the view that a community-based sentence is far more effective in appropriate cases, not only in terms of rehabilitation but also in terms of serving both as a personal and general deterrence against other would be offenders.
Persuaded by these considerations, I imposed wholly suspended sentences in The State v. Micky John Lausi (27/03/01) N2073, The State v. Abel Airi (28/11/00) N2007 and The State v. Dobi Ao (N0.2) (01/05/02) N2247 and others. I have done that only in cases where there is a well balanced pre-sentence report representative and reflective of the community’s view on the kind of penalty that an offender should receive and where the victims were receptive to restitution and a non-custodial sentence.
In your case, the pre-sentencing and means assessment reports confirm that, you do have some means to rebuild the houses you burnt down and replace their contents. However, there is nothing to confirm for example the ownership of your electrical workshop and business and more importantly proof of it being a going concern that has generated incomes for you in the past and is capable of doing so in future. I consider this is critical, given that Aitape is not such a big township that could generate sufficient income for you to raise a sum of K64,000.00 in a few years time. Further, there is a dispute from the victims in relation to the other items you said you own. Furthermore, the victims oppose any orders for restitution as they have already taken steps to rebuild and replace the building and properties they have lost. There is no contest at all to the victims’ statements or input.
In these circumstances, I do not consider it appropriate that restitution and an wholly suspended sentence is an option for you, particularly, when the victims are against restitution. It is the victims of a crime that directly and immediate feel and face the effects of a crime against them. It would be most inappropriate to force the victims of a crime to accept a penalty they are very much opposed to because it will add to their hurt more then help them to recover from the effects of the crime and live normal lives.
The notion that a crime is against society is only an indirect effect suffered by society merely because the victims are part of them. Hence, in my view, it is the victims that are better placed to say what kind of penalty will help them to over the effect of the crime on them. Accordingly, I am of the view that, the Court should be guided by what the victims prefer with a view to imposing a penalty they prefer unless what they prefer is unconstitutional or is against any other law and the general principles of humanity.
Having arrived at that decision, it is now necessary for me to consider what other kind of sentence is appropriate for you. For that purposes, I will allow myself to be guided by the kind of sentence that have been imposed in arson cases.
The offence of arson is a common occurrence particularly in the two Sepik Provinces and Highlands Provinces. A most recent example of this happening is the burning down of the Wewak District Court House. It is a very serious offence because it destroys within a matter of minutes, months if not years efforts put into the bringing into existence of houses and other structures and their contents. This has a very bad impact on the progress of our people and therefore, our nation because, it raises fears rather than security in the fruits of the hard work of the people. Given that, the community expects the Courts to sternly deal with offenders like you. After duly considering all of these things, Parliament has prescribed life imprisonment as the maximum penalty for this offence under s. 436, subject to the Courts’ sentencing discretion under s. 19 of the Criminal Code.
In The State v. Andrew Yeskulu (Unreported judgment delivered 24/04/03) N2410, I noted that there is no Supreme Court judgment providing any guidance for sentencing in arson cases. At the same time, I noted that, there are however, a number of National Court judgements. Out of all of those judgments, I noted that the case of The State v. Ipu Samuel Yomb [1992] PNGLR 261 appeared to provide some guidance and I considered it in some detail.
I then suggested a guideline in the following terms:
"In my view, just as all the other offences have their own 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:
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 then went on to express the view that, the kind of sentences that have been imposed, from wholly suspended sentences to 5 years failed to deter others from committing this kind of offences. In that context, I noted that, in the East Sepik alone, there were a good number of arson cases pending on the list for trial. I also noted that, there are many instances of people everywhere in the country, with more frequencies in the highlands provinces in association with tribal fights, fearlessly and without hesitation burning down a lot of public institutions and dwelling houses.
Given that position, I expressed the view that, the sentences have to be seriously increased with a view to deterring other would be offenders. Crimes such as arson are an affront to progress just as the other serious crimes such as rape, armed robbery and or murder are. That is why Parliament has prescribed the maximum of life imprisonment. Despite that, I noted that, this Court has seen it appropriate to impose sentences well below life imprisonment. I then said:
"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."
Hence, I said that 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. I then recommended an increased sentence to terms beyond those suggested and up to the maximum prescribed sentence of life imprisonment. At the same time, I said, a sentence for a case of arson falling in the last category should start at 5 years where there are no factors in aggravation. Where there are factors in aggravation, the sentence may go beyond that. Of course, in exceptional cases where there are very good mitigating factors with the support of a pre-sentence report, a sentence below what is recommended may be imposed.
I decided not to apply those guidelines to the case then before me. Instead, I said that judgment should sound a warning that sentences for arsonist will increase substantially to counter the increase in the offence itself.
I then determined that an appropriate sentence in that case was a wholly suspended sentence of 7 years on some strict conditions. The conditions included an order for the prisoner to rebuild the building that he burnt and replace its contents. Another order was for him to render free but supervised community services at a specified location and time. The persuasion for this sentence was amongst others, a guilty plea by a first time offender who was genuinely remorseful. In addition, the offender already took steps to rebuild the buildings and complete it with the victims approving.
In the subsequent cases of The State v. Ennie Mathew & Ors (No. 2) (Unreported judgment delivered on 29/10/03) N2563 and The State v. Robin Warren & Ors (No.2) (Unreported judgment delivered on 20/06/03) N2418, I adopted and applied the guidelines suggested in The State v. Andrew Yeskulu. It was a case of armed tribal group attacking another group the in first case. That arose out of an old land dispute that was resolved in favour of the victims of the offence. A village councilor led the attack and commission of the offence. About 5 dwelling houses were burnt down. The prisoners pleaded not guilty, thereby necessitating a trial to establish their guilt. Opportunities given by the Court for the offenders to come up with a workable proposal in terms of a sentence aimed at restoring peace and normalcy, returned with a negative result. In the circumstances, the Court imposed sentences ranging from 11 years and 14 years depending on their respective mitigating and aggravating factors.
The second case was also a case of armed group attack but in retaliation of death occasioned to one of their members. This saw the burning down of nineteen dwelling houses and a motor vehicle in the early hours of the morning on the day of the offence. The offenders also denied the charges thereby necessitating a trial to establish their guilt. Most of the offenders were first time offenders. One had a prior conviction and another was a member of the PNG Defence Force. These offenders received a sentence of 16 years each and their co-offenders received 15 years in hard labour.
Present Case
In your case, you committed this offence whilst in the company of each other and possibly a Jeffrey Moyaus. You used petrol to assist you in the successful completion of the execution of the offence. Further, you burnt down two dwelling houses, but it is not clear whether these were of permanent or bush material or a mixture of both. A child in one of the houses was almost burnt had it not been for the actions of his father in taking him out. Furthermore, the houses had contents ranging from outboard motors to household furniture and utensils, the total value of which is estimated at K64, 000.00. This brings your case closer in terms only of the value of properties destroyed to the case of The State v. Robin Waren & Others (Supra).
Additionally, you are a mature person. You therefore had reason to know and appreciate the consequences of your offence. You also did have reason to know that, burning down of the houses would result in serious and substantial loss to the victims but you proceeded anyway.
Finally, the offence of arson is an offence that is of common occurrence throughout the country. Past sentences appear not to be deterring other would be offenders from offending, evidenced for example by the commission of the offences by you. It therefore calls for a strong deterrent sentence.
These factors place your case in the first category under the The State v. Andrew Yeskulu (Supra) guidelines. However, this does not mean that I should automatically impose the maximum prescribed sentence of life imprisonment because of two reasons. Firstly, I must consider and take into account the factors in your mitigation before arriving at a sentence. Secondly, I do not consider your case to be a worse case of arson warranting the prescribed maximum of life imprisonment. It is settled law that, the maximum prescribed sentence in any case must be reserved for the worse kind of the offence under consideration.
You have a number of factors in your mitigation. Firstly, you acted in what you believed to be a sorcery killing of your deceased brother, Sampson. The law recognizes that, in some parts of our country, people believe in sorcery and therefore sorcery killing. However, this is only for the purposes of mitigation and not completely excusing one who acts on such a belief from his criminal responsibility. The law also imposes a duty on a person who believes in sorcery to establish the basis for his believe by appropriate evidence. If such a person is able to establish the bases of his believe, then the Court can consider that only in his mitigation.
There is no contest in your case that, you reacted to what you believed to be a killing of your brother by sorcery. In addition, there is no contest that you believed that the persons responsible were the victims of your offence. Nevertheless, it does not in anyway mean that you were right and that there is in fact such a thing called sorcery. It only exists in the mind of a person and does not exist in fact. It is most surprising that even well after the spread of the Good News of Jesus Christ in PNG and the country being built on the Christian principles; many people are continuing to believe in sorcery. It is particularly sad when well-educated people like you two, continue to hold onto such believes. For this reason, I am of the view that the Supreme Court should reconsider this issue with a view to allow the spirit of the Constitution to prevail. Until that happens, I am obliged and I do note that, the fact that you acted on what you believed to be a sorcery killing, is a factor in your favour.
Another factor in your favour is that, both of you are first time offenders. That means you have not been in trouble with the law before and this is your first ever offence. For such offenders, the law requires the Court to deal with them leniently than one who already has a prior conviction.
Further, both of you pleaded guilty. That helped the State in terms of avoiding the costs of running a trial with the Court sitting for more hours. The law therefore requires this Court to consider that in your favour and I do.
Finally, the Court notes that, you did not have yourselves armed with any weapon. The only thing you had was your late brothers’ coffin and some petrol, which you used.
Weighing both the factors for and against you, I am of the view that a part custodial and part suspended sentence is appropriate. Going by the guidelines, I have suggested in The State v. Andrew Yeskulu (Supra), and the tariffs in the recent past, I consider an head sentence of 10 years appropriate. Off that, I order you serve 5 years in hard labour at the Vanimo Correction Service less the period you have already spent in custody awaiting your trial, which shall be confirmed by the Correction Service from their records with your input within 7 days from today. As for the balance of 5 years from the head sentence, I order that be suspended on the following conditions:
I consider the sentence and the terms and conditions of the sentence proposed above, sufficiently accommodates all of the comments
and concerns raised in foregoing. Accordingly, I make orders in those terms.
__________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Accused: The Public Solicitor
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