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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 43 OF 2010
THE STATE
v
PRICILLA PIRU
Popondetta: Gavara-Nanu, J
2010: 15 & 21 April
CRIMINAL LAW – Sentence – Arson – Plea of guilty - Criminal Code Act, Chapter No. 262; s. 416 (3) – Maximum penalty – Deliberately setting fire to a large family house– House and all its contents destroyed and lost in fire – Valuable items lost in fire – Actions of the accused unprovoked – A deterrent custodial sentence appropriate – Appropriate sentencing principles discussed.
Case cited:
The State -v- Andrew Yeskulu (2003) N2410
The State -v- Enni Mathew (No.2) (2003) N2563
The State –v- Ipu Sammuel Yomp [1992] PNGLR 261
The State -v- Robin Warren (No.2)(2003) N2418.
The State -v- Prodie Akoi N2584
Counsel:
J. Done, for the State
F. Kirriwom, for the Accused
1. GAVARA-NANU, J: On 15 April, 2010, the accused pleaded guilty to wilfully and unlawfully setting fire to a dwelling house belonging to one Mrs. Freda Gordon (""Mrs. Gordon"") on 2 October, 2009, at Puhemo Block, Oro Province, contrary to s. 416 (3) of the Criminal Code Act, Chapter No. 262. This offence carries the maximum penalty of life imprisonment.
2. The circumstances in which this offence was committed are these; on the day of the offence, between 4.00pm and 5.00pm, the accused and Mrs. Gordon who is the accused''s mother in-law had an argument over some comments Mrs. Gordon made to the accused. The accused misunderstood Mrs. Gordon''s comments and she became angry and threatened to burn down Mrs. Gordon''s house. The accused and her family were also living in that house. After making threats, the accused went and got dry coconut leaves lit them then set fire to Mrs. Gordon''s house, resulting in the house and all its contents being burnt to ashes. The total value of the personal belongings for Mrs Gordon and her children that were lost in the fire was estimated at K4,462.00.
3. Mrs. Gordon''s deposition shows that on the day of the offence, she was minding the accused''s children at home when accused went to her garden. When the accused returned from the garden, Mrs. Gordon told her that, while she was happy to mind her grand children, she had also been fearful that the people who had an argument with her family sometime back might go and destroy their things. When the accused heard this, she thought Mrs. Gordon was complaining about looking after her children and she became angry and abusive towards Mrs. Gordon and called her names. This led to the argument between them. Before setting fire to the house, the accused told Mrs. Gordon that she was going to set fire to the house and kill her.
4. Mrs. Gordon managed to remove only a few of her personal belongings from the house, she then went and stood at a distance as she watched the accused set fire to the house.
5. The house had 4 bedrooms and had iron roofing. It had timber walls and flooring.
6. According to a Murray Gordon, one of Mrs. Gordon''s sons, the house had 9 posts, he himself used to live in the house with his family until they moved out sometime before this incident.
7. Mrs. Gordon is an old widow.
8. The accused is about 26 years old, she has 4 children. She is a first time offender, in her allocutus when expressing her remorse, she told the Court that one other reason why she was angry toward Mrs. Gordon was that Mrs Gordon also said to her that she and her children lived like animals and that she should work and support her children. The accused also said she was frustrated because her husband and all her inlaws were mistreating her. She said she was not happy when Mrs. Gordon only told her to work and not her son (accussed''s husband).
9. In her Record of Interview, the accused put the blame on Mrs. Gordon for burning the house down. She told the Court that Mrs. Gordon used to get cross to her and accused Mrs. Gordon of not controlling her children, including her (accused) husband. She said she was also frustrated because her husband did not support her which she said was one reason why she burnt down the house.
10. A quick survey of sentences given for arson cases shows that sentences generally range from a fully suspended term to about 6 years imprisonment in cases where offenders act alone and where only one house is destroyed.
11. But in cases of multiple offenders and where many houses are destroyed, such as in a tribal fight, sentences of up to 15 and 16 years have been imposed. See, The State -v- Robin Warrant (No.2)(2003) N2418. See also, The State -v- Enni Mathew (No.2) (2003) N2563 and The State -v- Prodie Akoi N2584. In Prodie Akoi''s case, head sentence of 10 years was imposed on two accused however, half of the sentence was suspended with conditions. Total value of the house and its contents was estimated at K64,000.00.
12. In The State -v- Andrew Yeskulu (2003) N2410, my brother Justice Ambeng Kandaksai expressed a view that the range of sentences imposed for arson cases does not adequately reflect the seriousness and the gravity of the offence. His Honour said, the legislature has recognized and acknowledged this by prescribing a maximum penalty of life imprisonment, but the types of sentences imposed by the Courts do not adequately reflect the intention of the legislature. His Honour suggested that in serious cases, the starting point should be 10 years and in less serious cases the starting point should be 5 years. In that case, the accused burnt down an elementary school building which accommodated 3 class rooms. The accused was sentenced to 6 years imprisonment, but the sentence was wholly suspended after his Honour satisfied himself from a means assessment report that accused had taken genuine steps towards building a new building to replace the one destroyed and that the accused had adequate means to build the new building.
13. The accused in that case had a dispute with the school, claiming that he owned the land on which the building was built.
14. The value of the building was about K810.00, with the value of its contents, the total loss was estimated at K1,100.00.
15. In that case, the Court cited the case of The State -v- Ipu Samuel Yomb [1992] PNGLR 261, in which the Court set out matters which the Court should take into account when deciding sentence in an arson case:-
16. A couple of these matters related specifically to the facts of that case but the other matters were of general nature, thus they can also apply to this case, namely deliberately putting peoples'' lives at risk, cold bloodedness in setting fire to the house, the value of it''s contents to the owner and the total lack of provocation offered to the accused. These matters would aggravate the offence.
17. In the instant case, the house as described by Mrs. Gordon and her son Murray Gordon was obviously a large permanent building, thus it was a major family asset. The loss was therefore significant to Mrs. Gordon and her family.
18. In my opinion in a case such as this and indeed in any arson case for that matter, the accused should be ordered to build a new house for the victim as part of his sentence but such an order should only be made after a means assessment report is made available to the Court and upon the Court satisfying itself from such report and the evidence before it that the offender has not only the means to build a new house but that he is also physically able to build a new house and has taken genuine and tangible steps towards building a new house; or upon the Court satisfying itself that the offender can build a new house of equal value to the one destroyed. The rationale behind taking this approach is that, it would be pointless for the Court to order an offender to build a new house if the offender does not have the means to build a new house and or if he is not physically able to build a new house. Therefore, matters such as whether the offender has any financial means such as savings in a bank, the age of the offender, any physical disabilities of the offender, the gender of the offender and so on, should be taken into account when deciding sentence. It would for example be pointless for the Court to order a male offender who is old or an accused who is a woman to build a new house because such an accused would not be physically able to build a new house. Similarly, it would be pointless for the Court to order an accused who has no financial means to build a new house even if he was physically able to do so. I consider that ordering an accused to build a new house for the victim should be the preferred form of sentence over ordering compensation because of the limits imposed by s. 5 of the Criminal Law Compensation Act, as to the amount of compensation that an accused can be ordered to pay to the victim. If the accused is ordered to build a new house that would in my opinion fully and adequately compensate the victim for the loss suffered.
19. The Court should fully inform itself first of above matters from all the materials before it, including means assessment and pre-sentence reports and other relevant sources such as police before deciding on the sentence.
20. In this case a means assessment report and a pre-sentence report have been submitted to the Court by the Probation Officer following directions given by the Court after an application was made by the defence counsel.
21. It should be noted that whether the Court can accept the recommendations made in the reports would depend on the view the Court takes on these reports. The Court has a wide discretion in this regard.
22. In exercising its discretion the Court has to take into account the circumstances in which the offence was committed, the means the accused has and whether she can adequately compensate Mrs. Gordon for her losses.
23. Given that the contents of the house were valued at about K4,462.00, I would add another K3,000.00 to K4,000.00 for the value of the house, thus taking the total amount of Mrs. Gordon''s loss to about K7,000.00 to K8,000.00. The amount of loss indicated here only relates to the properties lost, it does not account for emotional distress and anguish suffered by the victim. This latter category of losses may be more appropriate in civil claims but I consider them to be relevant matters to take into account on sentence.
24. Applying the guidelines set out in The State -v- Ipu Samuel Yomb (supra), I take into account the fact that the accused deliberately set fire to the house. It was done with determination and cold bloodedness because she first expressed her intention to set fire to the house then executed the intention by going and looking for dry coconut leaves, which she subsequently lit to set fire to the house.
25. I note especially that accused expressed her intention directly to Mrs Gordon before executing her intention.
26. I find that even if I were to accept what the accused said in her allocotus that Mrs. Gordon told her that she (accused) and her children lived like animals and that she should work to support the children as a reason for setting fire to the house, I find that her actions were unwarranted and were excessively reckless and disproportionate to any form of provocation Mrs Gordon may have offered.
27. I note that among the things destroyed by the fire, was the title deed to the land on which the house once stood, that was a significant loss to Mrs. Gordon and her children. It is reasonable to say that Mrs Gordon and her family being ordinary villagers, it is not easy for them to obtain a new title deed from the Registrar of Titles given the cumbersome and complex procedures which one has to go through in the Titles Office to get a new title deed.
28. The actions of the accused were, plainly not only unwarranted, but were also reckless and callous. As noted, she destroyed a major asset belonging to her in-laws and it is in my opinion fatal to her that she confessed and admitted to the Court that she misunderstood what Mrs. Gordon said to her, which angered and casued her to burn down the house.
29. Frustrations towards her in-laws and lack of support by her husband quite clearly could not justify the offence committed. The deposition by Mrs. Gordon also indicates that it was the accused who was aggressive and called Mrs Gordon names. This also indicates clearly that accused was abusive and was the one who initiated the whole incident
30. As I said earlier, this is a type of case in which I would be inclined to order the accused to build a new house for the victim of her crime or order the accused to compensate the victim for the loss of the house and its contents. However, I have decided against making such orders because after having looked at the means assessment report and other materials before me, including the pre-sentence report, I am not convinced that the accused has the means and the ability to build a new house for Mrs. Gordon. The accused also cannot pay any form of compensation to Mrs Gordon even within the requirements under s. 5 of the Criminal Law Compensation Act.
31. The end result is that the only appropriate form of sentence for the accused is a custodial sentence.
32. I respectfully agree with the view expressed by my brother Justice Kandakasi in The State -v- Andrew Yeskulu (supra) that, sentences for arson cases need to be tougher than what they are now because of the serious and grave nature of the offence and the increase in its prevalence.
33. In many arson cases the victims invariably suffer greatly as they lose their homes and personal belongings, they have to look for new shelters and many victims as in this case are innocent. Some victims manage to build new houses for themselves, but in cases where victims are elderly, weak and or poor as in this case, the losses they suffer are painfully great and permanent.
34. Therefore when deciding the appropriate punishments for the offenders in arson cases, the Court should always bear in mind the clear legislative intent that is manifest in the prescribed maximum penalty. It is incumbent on the Courts to have serious and real regard to the prescribed maximum penalty when deciding sentence. In stating this, I appreciate the fundamental principle of sentencing that each case has to be decided on its own merits, but in my view, the principle has to be applied taking into account that the offence is one of the most serious crimes which attracts the maximum penalty of life imprisonment. The prescribed maximum penalty is therefore a factor which should always have bearing on sentences imposed.
35. The sentences imposed on the offenders should reflect adequately on the seriousness and the gravity of the offence and the Court should not shy away from imposing severe deterrent sentences on offenders in appropriate cases.
36. Having looked at the means assessment report, there is nothing to indicate to me that accused has any form of financial means readily available such as a savings in a bank which she can immediately use to repay the victim for her losses. The report states that she has fortnightly income of K600.00 gross and K500.00 net, she earns this by selling vegetables and oil palm nuts from her oil palm block. But there is no evidence of such earnings and they appear to be mere assumptions. The report states that she can pay K4, 000.00 through goods, but I am not convinced that she can pay that amount in goods let alone in cash. The report further states that she will give her oil palm block to Mr. Gordon to harvest and get the money that is equal to her loss and then return the block to the accused, but I do not think such an arrangement can work. In any case the accused is the one who should find the money and repay Mrs. Gordon for her losses. Furthermore, Mrs. Gordon would be too old to do such manual work.
37. For the foregoing reasons, it would not be realistic for the Court to order the accused to compensate the victim for her losses, let alone order her to build a new house for the victim.
38. As I said earlier, in my opinion, this is a case where the accused can only be appropriately punished with a custodial sentence.
39. Given the circumstances of the case, I do not consider that the sentence I am about to impose is a quantum leap from the current range of sentences. I consider that the sentence is appropriate and justified.
40. I have in deciding the sentence taken into account all the mitigating factors, including accused''s plea of guilty.
41. In the circumstances, I sentence the accused to 10 years ILL. I deduct the period she spent in custody, which is 6 months 3 weeks. That leaves the balance of her sentence at 9 years 5 months 1 week.
42. I will suspend 1 year 5 months 1 week on the condition that upon her release from jail, she will keep peace and be of good behaviour for 2 years. She will therefore serve 8 years ILL. I consider the 2 years good behavior bond entirely relevant and appropriate as a continued measure for her rehabilitation and correction after serving her term of imprisonment.
43. I order that her cash bail be paid to Mrs. Gordon.
44. This payment is to be made and supervised by the Clerk of Popondetta District Court at a time convenient to the Clerk and Mrs. Gordon.
_____________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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