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State v Towakra [2009] PGNC 207; N3845 (31 March 2009)

N3845

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 354-356 OF 2008

THE STATE

V

ANTON TOWAKRA, JOHN TOWAKRA & CARL MATHEW

Kimbe: Cannings J
2009: 16, 30, 31 March

Criminal Law – sentences – arson – Criminal Code, Section 436 – burning down of permanent dwelling houses and another structure – conviction on two counts.

The three offenders were convicted of two counts of arson. Under the first count, they were convicted of burning down their wantok’s permanent dwelling house and bush material kitchen house. Under the other count, they were convicted of burning down the first victim’s brother’s permanent dwelling house-canteen.

Held:

(1) When sentencing multiple offenders for multiple offences, the court should arrive at a notional sentence for each offender for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

(2) The three offenders were each convicted of two offences, so the court was required to fix six notional sentences, which were fixed as follows: first count: 9 years for each of the three offenders; second count: 7 years for each of the three offenders.

(3) The total potential sentence for each offender was 9 years + 7 years = 16 years imprisonment.

(4) The sentences should not be served concurrently as, although committed during the one incident, there were different victims.

(5) However, sentences of 16 years each would be excessive so, under the totality principle, they were reduced to 10 years each.

(6) The pre-sentence periods in custody were deducted from each sentence.

(7) Seven years of each total sentence was suspended on conditions including payment of compensation to the victims prior to release from custody.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88
The State v Alfred Awesa CR 1587/2005, 06.04.06
The State v Anton Towakra and Others, CR Nos 354-357 of 2008, 16.03.09
The State v Bernard Bambai CR 1931/2005, 23.03.06
The State v Bonifas Bowa CR 1930/2005, 23.03.06
The State v Jacob Patore CR 32/2005, 27.03.07
The State v Jacob Patore CR 32/2005, 27.03.07
The State v James Wakis (2008) N3426
The State v Mondo Baundo CR 1320/2006, 24.08.07
The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07
The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07
The State v Patrick Michael & Leo Koligen CR 281 & 283/2004, 10.10.05
The State v Pelly Vireru & Spelly Kaiwa CR 468 & 469/2002, 20.12.05
The State v Rex Hekawi Tami CR 1590/2005, 23.03.06
Tom Longman Yaul v The State (2005) SC803

Abbreviations

The following abbreviations appear in the judgment:

AOG – Assemblies of God
CR – Criminal
ie – that is
J – Justice
N – National Court judgment
No – number
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court judgment
v – versus
WNB – West New Britain

SENTENCES

This was a judgment on sentence for three offenders who had each been convicted of two counts of arson.

Counsel

F Popeu for the State
T Gene for the offenders

SENTENCES

31 March, 2009

1. CANNINGS J: This is a decision on the sentences for two brothers, Anton and John Towakra, and their close relative, Carl Mathew, who have each been convicted after a trial of two counts of arson.

2. Under the first count, they were convicted of burning down a permanent dwelling house and properties (worth K67,667.90) and bush material kitchen house (worth K8,000.00) belonging to their relative, Joshua Apkosa.

3. Under the other count, they were convicted of burning down the permanent dwelling house-canteen (worth K11,371.60) of Lepman Apkosa, who is the first victim’s brother.

4. Both offences were committed on the morning of Saturday 27 October 2007 at the Galai 2 oil palm settlement, near Kimbe. The offenders and the victims are all from West Sepik but have lived in close proximity to each other at Galai 2 for many years.

5. The event that triggered the incident was the death of Anton and John Towakra’s brother, Simon Towakra. Simon died on 13 October 2007 from injuries inflicted by Joshua Apkosa in an incident at Galai 2 on 24 September 2007. Simon was being buried on the morning of Saturday 27 October. Anton went to the Apkosa block that morning to demand compensation. One of the offenders’ cousins, Elvis Dennis, was slashed with a bushknife and sustained serious injuries. Things got out of hand and a number of houses and other structures on the Apkosa block were burned down by the three offenders.

6. Further details of the circumstances in which the offences were committed are in the decision on verdict (The State v Anton Towakra and Others, CR Nos 354-357 of 2008, 16.03.09).

ANTECEDENTS

7. None of the offenders has any prior convictions.

ALLOCUTUS

8. I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment.

Anton Towakra: This is my first time to be before the National Court and thank the Court for hearing my case. This trouble happened because of the death of my brother, Simon Towakra, and the injuries inflicted on our other brother, Elvis Dennis. I am married and I have four young children. If the court puts me in jail there will be no one to look after them. I have a block to look after, and Lepman Apkosa has been preventing me from harvesting it. I am the headmaster of our local elementary school and the education of a lot of young children in our community will suffer if I am sent to jail. Lakiemata Jail is overcrowded and we do not have space to sleep. Please consider me for probation so that I and my brothers can serve our sentences outside the jail. That is the only way we can solve all these problems.

John Towakra: This is my first time to be before the National Court and thank the Court for hearing my case. I am married and I have five young children. I have no idea about what happened but the court has made its decision and I accept the court’s decision. If the court puts me in jail there will be no one to look after my block or my children or look after school fees. Lakiemata Jail is overcrowded and we do not have space to sleep. Please consider me for probation so that my brothers and I can serve our sentences outside the jail. We can pay compensation or rebuild the houses that have been burned down.

Carl Mathew: This is my first time to be before the National Court and thank the Court for hearing my case and making a decision. I am married and I have four young children. I want to continue my missionary work in the AOG Church. I am a member of the Church board. I am actively involved in musical activities with the Church. Last January I was appointed Chairman of the Sunday School division of the Church for East and West New Britain and Bougainville. I have a five-hectare block and while I have been in wet kot I have heard that the company has removed one of my hectares. My father is very old and was not in a position to talk with the company. There is no one else to look after my mother and father and children. Please consider me for probation so that I and my brothers can serve our sentences outside the jail. That is the only way we can solve all these problems.

PRE-SENTENCE REPORTS

9. Pre-sentence reports, prepared by the Kimbe branch of the Community Correction and Rehabilitation Service, are summarised below.

Anton Towakra

• 29 years old
• Married, happily, with four children, aged six months to six years
• Educated to G10 at Hoskins Secondary School, 1997; later did an agriculture course and an elementary teaching course
• Lives on a block belonging to his parents
• Mother died last year; his father is now frail, aged 73
• Had formal employment with Hargy Oil Palms in 2000; presently he is teacher-in-charge at Galai 2 Elementary School, supervising five teachers; has a regular fortnightly income
• Father and rest of family supportive
• Health OK: non-smoker; moderate drinker; non-chewer (betel nut)
• AOG church member; committed and actively involved in church activities
• Highly regarded in the local community
• Subject to the attitude of the victims, the offender’s family and community do not support a prison sentence
• Suitable for probation, subject to conditions, including payment of compensation.
  

John Towakra

• 37 years old
• Married, happily, with five children, aged 2 to 15 years old
• No formal education
• Recently purchased a block at Kabaiya in the Bialla area and has settled there with his family
• Mother died last year; his father is now frail, aged 73
• No formal employment
• Father and rest of family supportive
• Health OK: non-smoker; non-drinker; non-chewer (betel nut)
• AOG church member; committed and actively involved in church activities at Kabaiya
• Highly regarded in the local community
• Subject to the attitude of the victims, the offender’s family and community do not support a prison sentence
• Suitable for probation, subject to conditions, including payment of compensation.
  

Carl Mathew

• 25 years old
• Married, happily, with four children, aged three months to six years
• Educated to G5 at Buvussi Primary School; wants to continue his education at Nazarene College to do pastoral studies
• Lives on a block belonging to his father at Galai 2
• Mother left nine years ago and now lives in the village in West Sepik; his father is elderly but has done a good job, as a single father, raising him
• No formal employment
• Father and rest of family supportive
• Health OK: non-smoker; moderate drinker; non-chewer (betel nut)
• Nazarene church member; committed and actively involved in church activities
• Well regarded by some sections of the local community except that Lepman Apkosa regards him as a trouble maker, especially when under liquor
• Subject to the attitude of the victims, the offender’s family and community do not support a prison sentence
• Suitable for probation, subject to conditions, including payment of compensation.
  

Common features of each pre-sentence report

10. The victims, Joshua and Lepman Apkosa, were each interviewed. They are not interested in compensation or having new houses built for them by the offenders. They feel that they and their families have suffered greatly and unnecessarily. They have attempted mediation with the offenders but it is the offenders who have not been co-operative and who refused to make peace. They want them punished by being forced to serve their sentences in prison.

SUBMISSIONS BY DEFENCE COUNSEL

11. Mr Gene asked the court to take into account the events that led to the incident and the provocation that existed. Their brother, Simon, was killed by one of the victims Joshua Apkosa (who is presently in jail, serving a 12-year sentence for manslaughter). Lives were not put at risk when the houses were burnt down. This is not a worst case scenario, so the sentences should be moderate, in the range of four to five years; and they should be suspended sentences, to allow time for compensation and reconciliation.

SUBMISSIONS BY THE STATE

12. Mr Popeu disagreed that provocation should be taken into account as a mitigating factor. If the provocation was said to be constituted by the death of Simon Towakra, that has been dealt with already by the court and Joshua Apkosa is serving time for what he did. If it was the injury to Elvis Dennis that is claimed to be provocation, that is also not a valid mitigating factor as the evidence at the trial showed that it was the offenders’ group that invaded the house in which the person who injured Elvis Dennis went to; so it was the actions of the offenders that led to him being injured.

13. Mr Popeu also pointed out that there has been no reconciliation between the offenders and the victims and it is the offenders who are the ones responsible for this. They were unwilling to talk about peace or compensation until they were convicted. So their genuineness in that regard must be doubted. A sentence of eight years each is warranted, Mr Popeu submitted.

DECISION MAKING PROCESS

14. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty for each offence?
• step 2: what is a proper starting point for each offence?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offender, for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence periods in custody be deducted?
• step 8: should all or part of each sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE?

15. The offenders have each been convicted of two counts of arson under Section 436(a) of the Criminal Code. The maximum penalty for each count is life imprisonment. The court has discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT FOR EACH OFFENCE?

16. As I have said in recent arson cases in this Province, the starting point for sentencing for the serious offence of burning down a dwelling house is ten years imprisonment (The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07; The State v Jacob Patore CR 32/2005, 27.03.07).

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

17. Before I fix a sentence, I will consider sentences I have handed down in other arson cases recently in West New Britain. These cases are shown in the following table.

TABLE 1: NATIONAL COURT SENTENCES FOR ARSON,
WEST NEW BRITAIN, 2005-2008, CANNINGS J

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENDER, FOR EACH OFFENCE?

18. I am sentencing three offenders for two offences each. I must therefore arrive at 3 x 2 = 6 notional sentences before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

19. I determine that for sentencing purposes the offenders had an equal degree of involvement in the offences. Their personal circumstances are similar. Therefore I will sentence them in the same manner. I will firstly, determine a notional head sentence for count 1 by looking in detail at the mitigating and aggravating factors and assessing what effect they have on the starting point of ten years. Then I will compare the seriousness of count 2 with count 1 and determine a notional head sentence for count 2.

Count 1: setting fire to Joshua Apkosa’s dwelling house and kitchen house

20. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

21. Three sorts of considerations are listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1 Did the offender cause damage of a relatively low value? No, a person’s home is their "castle" – whether it is a mansion on Touaguba Hill in Port Moresby or a bush material house in an oil palm settlement in West New Britain. The Supreme Court recognised in Gimble v The State [1988-89] PNGLR 271 that any crime that interferes with the peace or privacy of a person’s home is very serious. Whatever its economic value, a person’s home is sacred.

2 Was there no person or class of persons directly affected by the actions of the offender? No, a man and his family were directly affected.

3 Did the offender not put lives at risk? Yes, no one was in the house when it was burned.

4 Was there only one offender? No.

5 Did the offenders not plan the offence in a deliberate and calculated manner? Neutral. Although it appeared in some ways to be a spur of the moment event triggered by the injury to Elvis Dennis, it can also be categorised as a planned reaction to the failure of the Apkosa family to meet the compensation demands of the Towakra family.

6 Did the owner of the property or any other person provoke the offender in ‘the non-legal sense’? Neutral. I accept Mr Popeu’s argument that provocation cannot be relied on as a valid mitigating factor.

7 Was it an isolated incident? Yes.

8 Did the offenders give themselves up after the incident? No.

9 Did the offenders cooperate with the police in their investigations? Yes.

10 Have the offenders done anything tangible towards repairing their wrong, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what they did? No.

11 Have the offenders not caused further trouble since the incident? Yes.

12 Have the offenders pleaded guilty? No.

13 Have the offenders genuinely expressed remorse? Neutral.

14 Is this the first offence? Yes.

15 Can any of them be regarded as a youthful offender? No.

16 Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes. They each have a good pre-sentence report (subject to reservations expressed about Carl Mathew’s apparent alcohol problem). They are well regarded in the local community. They each have a strong family support network. Also, to their credit, they complied fully with their bail conditions and were co-operative with the court, and their attendance was punctual, throughout their trial.

Recap

22. The mitigating factors are:

• No 3 – lives not at risk;
• No 7 – isolated incident;
• No 9 – co-operated with police;
• No 11 – no further trouble;
• No 14 – first-time offenders;
• No 16 – favourable pre-sentence reports.
  

23. Aggravating factors are:

• No 1 – damage of high value;
• No 2 – a man and his family were directly affected;
• No 4 – acted in a group;
• No 8 – did not give himself up;
• No 10 – made no effort to reconcile;
• No 12 – took the matter to trial;
• No 15 – not youthful offenders.
  

24. The other factors (Nos 5, 6, 13) are neutral.

25. After weighing all these factors, comparing this case with the other recent WNB arson cases, particularly Rebon and Patore (this case is not as serious as them as lives were not put at risk), a head sentence just below the starting point is warranted. I impose a head sentence of nine years imprisonment.

Count 2: Lepman Apkosa’s permanent dwelling house-canteen

26. This is a less serious offence than count 1. I impose a head sentence of seven years imprisonment.

Total potential sentence

27. For each offender the total potential sentence is:

9 years (count 1) + 7 years (count 2) = 16 years

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

28. The general rule is that if two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent unless there are different victims (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88).

29. Here, there were two different victims, so the sentences should be served cumulatively, a total of 16 years, subject to the totality principle.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

30. I now look at the total sentence that each offender is potentially facing to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing crushing sentences, those that are over the top or manifestly excessive.

31. I consider that 16 years would be excessive. Despite the serious nature of the offences they have committed, they each have a family to support and the impact on their families of extended incarceration will be significant.

32. I reduce the total sentence to ten years and apportion it as follows:

• Count 1: 6 years;
• Count 2: 4 years.
  

STEP 7: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERMS OF IMPRISONMENT?

33. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment, the whole of the pre-sentence period which I determine to be three weeks in the case of each offender.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

34. The pre-sentence reports provide a fairly strong case for suspending a substantial part of each sentence and placing all offenders on probation for a long period subject to payment of compensation. There is ample precedent for that sort of approach. In most of the WNB arson cases referred to earlier I have imposed suspended sentences and in most cases this has worked out well for both the offenders and the victims. But this case is different, for two reasons. First, the amount of compensation that I would need to impose (about K75,000.00 on count 1 and K11,000.00 on count 2) is not realistic. I do not think the offenders would have any realistic chance of being able to raise that sort of money to pay the victims. Secondly, the victims do not want compensation. They want to see the offenders imprisoned.

35. Despite the victims’ lack of interest in compensation, however, I consider that that is the only way that the bad blood between the two groups is going to be displaced and their problems resolved. So, in formulating an appropriate sentence, I am going to strike a compromise that will, I trust, promote an environment for peace and reconciliation. I will order that the offenders spend some time in custody but I will suspend a substantial part of the sentence on conditions, one of which is that they pay some compensation prior to their release from custody.

36. I will suspend seven years of each sentence on the following conditions:

1. must, before release from custody, pay a total of K16,000.00 compensation (on behalf of the three offenders) to the Joshua Apkosa family and a total of K4,000.00 compensation (on behalf of the three offenders) to the Lepman Apkosa family;
2. the National Court must make an order for release from custody;
3. must within five days after release from custody attend the Probation Office and submit to directions from the Senior Probation Officer;
4. must within one month after release from custody participate in a reconciliation ceremony supervised by local community leaders and witnessed by the Probation Officer;
5. must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
6. must not leave WNB Province without the written approval of the National Court;
7. must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
8. must attend his local Church every weekend for service and worship and submit to counselling;
9. must report to the Probation Office at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;
10. must not consume alcohol or drugs;
11. must keep the peace and be of good behaviour;
12. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;
13. if any of the offenders breach any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

37. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

38. Anton Towakra, John Towakra and Carl Mathew, having each been convicted of two counts of arson under Section 436(a) of the Criminal Code, are sentenced as follows:

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offenders