N4770

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. No.734 OF 2011

BETWEEN:

THE STATE

AND:

SAMSON LEILA
Prisoner

Mt. Hagen & Minj: David, J.
2012: 26 July & 16 & 24 August

CRIMINAL LAW – sentence – arson – two counts - burning of two dwelling houses – permanent house valued at K120,000.00 – bush material house valued at K5,000.00 – substantial loss by victim and family – complete lack of provocation – prisoner apprehended and handed over to police – nothing tangible done by prisoner to repair wrong – expression of remorse not genuine – prisoner not youthful offender – prevalence of offence - lives not put at risk – prisoner acted alone - no pre-meditation - isolated incident – co-operation with police during investigations – no further trouble since incident – convictions through guilty pleas – first offender – victim an in-law - prisoner traditional villager, illiterate and lacks sophistication – prisoner has no means to restitute or pay compensation –deterrent sentence serving both as personal and general deterrence against other would be offenders required – first count, sentence of 7 years imprisonment in hard labour – second count, sentence of 4 years in hard labour – sentences to be served concurrently – effective sentence 7 years imprisonment in hard labour - sentence partly custodial and non-custodial – Criminal Code, Section 19 & 436 (a). 

Cases cited:

Public Prosecutor v Kerua [1985] PNGLR 85
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Mase v The State [1991] PNGLR 88
The State v Ipu Samuel Yomb [1992] PNGLR 261
State v Akena Pawa [1998] PNGLR 387
The State v Andrew Yeskulu (2003) N2410
The State v Robin Warren (No 2) (2003) N2418
The State v Henny Wamahau Ilomo (2003) N2420
The State v Enni Matthew (No 2) (2003) N2563
The State v Prodie Akoi and Steven Akoi (2004) N2584
The State v Bart Kiohin Mais (2005) N2811
The State v Peni Bilak (2005) N2866
The State v Bernard Bambai (2006) N3019
Emil Kongian v The State (2007) SC928
The State v Yunati Epa (2008) N3309
The State v James Wakis (2008) N3426
The State v Anton Towakra (2009) N3845
The State v Mapi Mack (2010) N4100
The State v Mono Kukiwa, CR No.1093 of 2008, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 22 March 2011

Counsel:
Joe Kesan, for the State
Philip L. Kapi, for the prisoner

SENTENCE

24 August, 2012

1.	DAVID, J: On 26 July 2012, I convicted the offender on pleas of guilty to two counts of wilfully and unlawfully setting fire to two dwelling houses belonging to one Andrew Andup on 12 April 2011 at Panda village, Dei District, Western Highlands Province in Papua New Guinea contrary to section 436 (a) of the Criminal Code. The prisoner appears before me for sentence from custody. This is the sentence of the Court.

2.	 The short facts presented to the Court for purposes of arraigning the prisoner are these. The prisoner was at Panda village, Dei District in the Western Highlands Province in the early hours of Tuesday, 12 April 2011 at about 01:00 o'clock. At the time, he had been drinking and was under the influence of alcohol. The victim, Andrew Andup owned two dwelling houses, one a permanent house valued at K120,000.00 and the other a bush material house valued at K5,000.00. He went to the victim's area and set fire to both houses and got burnt down. At the time when the prisoner burnt the houses, he had no lawful reason to do so. 

3.	On his allocutus, the prisoner said he burnt down the houses as a result of an existing dispute and animosities that had arisen between his family and the victim's in connection with two blocks of land at the village that his father had acquired from the victim. His family used these blocks, one for building their houses on and the other to plant coffee trees on. At one stage, the victim took over the coffee block as he wanted to plant coffee trees as well, but later abandoned it. When he left, other people not related to him helped themselves by harvesting coffee and benefitting monetarily. His father managed to take the coffee block back, but that brought about his death. Thereafter, the victim wanted the coffee block to be returned to him. 

4.	Of the four siblings in the family, apart from himself, the rest have gone to school. He sought financial assistance from the complainant to pay for school fees, but received no response from him. Instead, one day, his house with his young male child inside was set alight. Fortunately, his son was saved by a female walking by. The victim undertook to do something to appease the prisoner's family for the ordeal his child had gone through and the burning down of the prisoner's house, but nothing materialized. Sometime later, another house of his was set alight, but he managed to put the fire out. He got angry and burnt the victim's two houses. 

5.	He admitted breaking the law, said sorry and begged the Court to have mercy. 

6.	I directed the Probation Service in Mt. Hagen to compile and file a Pre-sentence Report on the application of the prisoner through his counsel. I have received the report which I have considered. The Probation Service has recommended that I should impose a non-custodial sentence. 

7.	The prisoner does not have any criminal convictions recorded against him.

8.	The prisoner is originally from Anji village, Wapenamanda District in the Enga Province. Until the offence, he was residing at New Camp, Panda village, Dei District in the Western Highlands Province. He was initially married to one Cathy Kelmend and they have a son called Mason from the marriage who is about 5 years old now. He left Cathy and married one Roselyn. He has no children from his relationship with Roselyn. He is a subsistence villager and is aged about 28 years now having been born in 1984. His father is deceased and is survived by his mother. There are four siblings in the family comprising three brothers and a sister and he is the eldest. He is a member of the Apostolic Church. He has not received any formal education. He has been in custody since 17 April 2011 and that works out to be one year, 4 months and 1 week as of today. 

9.	In mitigation, it was submitted that; first, the prisoner pleaded guilty; second, the prisoner is a first offender, there being no criminal convictions recorded against him; third, he expressed remorse; and fourth, elements of provocation in the non-legal sense were present.

10.	The defence urged the Court to impose sentences between 4 to 5 years for the first count and 1 to 2 years for the second count. 

11.	In aggravation, it was submitted as follows. First, two houses were burnt down and damage of substantial value had been caused. The value of the permanent house including its contents was estimated at K120,000.00 and the value of the bush material house including its contents was estimated at about K10,000.00. Second, the victim was innocent of any wrong-doing, there being a complete lack of provocation on his part to warrant the burning down of his houses.

12.	Mr. Kesan submitted that since there were no sentencing guidelines prescribed by the Supreme Court for arson cases, the Court apply the sentencing guidelines suggested in decisions of the National Court in The State v Ipu Samuel Yomb [1992] PNGLR 261 and The State v Andrew Yeskulu (2003) N2410. He suggested that sentences between 5 to 10 years for the first count and a term less than 5 years for the second count were appropriate.

13.	Section 436 of the Code creates the offence and prescribes the penalty. This is a serious offence as is indicated by the penalty. The maximum penalty to which an offender is liable is imprisonment for life. A lesser determinative term could be imposed in the exercise of the Court's discretion by virtue of Section 19 of the Code. This discretion is exercised upon the consideration of both the mitigating and aggravating factors present in a particular case. 

14.	I concur with Mr. Kesan that there are no sentencing guidelines enunciated by the Supreme Court for arson cases. However, the criteria applied by Doherty, J in Ipu Samuel Yomb and those suggested by Kandakasi, J in Andrew Yeskulu have often been applied in arson cases.

15.	In Ipu Samuel Yomb, the prisoner pleaded guilty to one count of arson in setting fire to the house occupied by his sister in law and her family at night. There were children in the house. The fire was pre-planned. The door was locked from the outside by the prisoner. This act was in reprisal for the ill treatment of his sister by her husband, who was the brother of the victim of the arson. The Court there started with a sentence of 7 years which was then reduced to 5 years.

16.	In Andrew Yeskulu, the prisoner burnt down an elementary school building built of bush materials housing three classrooms. Land dispute was claimed to be the reason for burning down the building. Teaching materials were lost. Kerosene was used to set the building alight. On a guilty plea, a sentence of seven years IHL was imposed wholly suspended with strict conditions applying including restitution of the burnt down building and free labour to the school for seven years.

17.	In The State v Bart Kiohin Mais (2005) N2811, Cannings, J adopted and applied the guidelines suggested by Kandakasi, J in Andrew Yeskulu and adopted the starting point of 10 years for the burning down of a dwelling house in that case. I will adopt a starting point for this case of 10 years imprisonment.

18.	After carefully considering the guidelines suggested in Ipu Samuel Yomb and Andrew Yeskulu and the application of the guidelines in several other cases, Cannings, J in Bart Kiohin Mais proceeded to formulate 16 considerations which he considered should be taken into account when deciding an appropriate sentence for a particular arson case. These are:

1	Did the offender cause damage of a relatively low value?

2	Was there no person or class of persons directly affected by the damage or destruction of the property?

3	Did the offender not put lives at risk? 

4	Was there only one offender?

5	Did the offender not plan the offence in a deliberate and calculated manner?

6	Did the owner of the property or any other person provoke the offender in 'the non-legal sense'? 

7	Was it an isolated incident?

8	Did the offender give himself up after the incident?

9	Did the offender cooperate with the police in their investigations?

10	Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?

11	Has the offender not caused further trouble since the incident?

12	Has the offender pleaded guilty?

13	Has the offender genuinely expressed remorse?

14	Is this his first offence?

15	Can the offender be regarded as a youthful offender?

16	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? 

19.	I applied these guidelines in The State v Mapi Mack (2010) N4100 and The State v Mono Kukiwa, CR No.1093 of 2008, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 22 March 2011.

20.	I will adopt and apply these considerations in the present case as well in the order set out above in the following manner.

1.	The offender caused damage of substantial value. The total value of the two houses and belongings destroyed was K125,000.00. 

2.	The victim and his family were directly affected. 

3.	The offender did not put lives at risk.

4. The offender acted alone.

5. The offence was not pre-meditated. 

6.	There was complete lack of provocation by the victim. The Record of Interview reveals that the offender had marital problems with his wife Roselyn who was the daughter of one of the victim's brothers. That was the real cause of the burning of the victim's houses and not as he had stated on his allocutus.

7.	It was an isolated incident.

8.	The offender was apprehended and handed over to the police.

9.	The offender co-operated with the police in their investigations.

10.	The offender has not done anything tangible towards repairing his wrong. 

11.	There is no evidence of the offender causing further trouble since the incident. 

12. The offender pleaded guilty.

13.	The offender has not genuinely expressed remorse.

14. This is the offender's first offence.

15. The offender cannot be regarded as a youthful offender.

16.	Other circumstances of the incident or the offender that warrant mitigation of the head sentence are:

(a)	the victim is the offender's in-law;

(b)	the prisoner is a traditional villager, illiterate and lacks sophistication. 

21.	The considerations which mitigate the offence are numbers 3, 4, 5, 7, 9, 11, 12, 14 and 16.

22.	The considerations which aggravate the offence are numbers 1, 2, 6, 8, 10, 13 and 15. The offence is also prevalent.

23.	There are slightly more mitigating factors than aggravating factors. 

24.	To assist me in arriving at an appropriate sentence in the present case, apart from the cases I have discussed earlier, I have also considered the following arson cases.

25.	In The State v Robin Warren (No.2) (2003) N2418, the offenders were all found guilty and convicted after a trial on 21 charges of arson contrary to Section 436 (a) and (f) of the Code. Nineteen of the charges were for the burning down of bush material dwelling houses while the remaining 2 were for the burning of 2 motor vehicles owned by 2 different persons. Guns and other weapons were used to facilitate the crime conducted in a group raid in the early hours of the morning between 5:30 and 7:00 o'clock. The attack was in revenge of the stabbing of 1 person by another which eventually led to the death of the victim. No remorse was shown. Sentences of 15 and 16 years imprisonment in hard labour were imposed on the offenders.

26.	In The State v Henry Wamahau Ilomo (2003) N2420, the offender burnt down a dwelling house, a kitchen and a firewood shed acting on the belief that the owner practiced sorcery to kill his sister. On a guilty plea, a sentence of 7 years imprisonment in hard labour was imposed wholly suspended on terms including an order for restitution.

27.	In The State v Enni Mathew (No.2)(2003) N2563, the offenders were all found guilty and convicted after a trial on 4 charges of arson for burning down four bush material dwelling houses. They were also found guilty and convicted on a charge of unlawful deprivation of liberty. Those offences were committed out of a pre-existing land dispute and animosities arising out of that and after the Local Land Court had awarded the disputed land to the victims. The offenders were sentenced to 11 to 14 years imprisonment in hard labour to be served concurrently with sentences for deprivation of liberty. The convictions and sentences were appealed. The Supreme Court's judgment on the appeal is published in Emil Kongian v The State (2007) SC928. The appeals against conviction were dismissed, but the appeals against sentence were allowed. Sentences of 3 to 5 years imprisonment were substituted for each offender in relation to the arson convictions.

28.	In The State v Prodie Akoi and Steven Akoi (2004) N2589, 2 houses were burnt down. The offenders acted on the belief that the victim practiced sorcery to kill their brother. The total estimated value of items lost was placed at K64,000.00. An offer to restitute was refused by the victim. The crime was committed on allegation that the offenders' deceased brother moved the coffin he was in to point out the sorcerer responsible for his death. One of the offenders then took a plastic container half filled with petrol, broke open the main door of the victim's house, poured petrol all over the inside of the house and set it alight. That house and a nearby house were completely burnt down. A baby boy asleep in the house was saved by his father just in time. Both offenders pleaded guilty. Sentences of 10 years imprisonment in hard labour were imposed on each offender with 5 years suspended on terms including 8 hours per week free community service.

29.	In the State v Akena Pawa [1998] PNGLR 387, the prisoner burnt down a modern permanent house which included some modern appliances and goods. Kerosene was used to set the house alight. The house and its content were valued between K80,000.00 and K85,000. The offender was a young man, but no leniency was given on that account because the offence was pre-meditated. The value of the house and goods destroyed and the intentional and pre-meditated actions of the offender were factors that determined the head sentence of 4 years in hard labour on a guilty plea.

30.	In The State v Bernard Bambai (2006) N3019, the prisoner pleaded guilty to burning his family home, a Provincial Government owned house which he was renting after an argument with his wife. The house was valued at about K36,000.00. He was sentenced to 3 years imprisonment in hard labour. Execution of the sentence was delayed for 3 months to allow restitution to take place and if it were not effected within that period, the offender was required to show cause why he should not be immediately committed to custody to serve sentence. 

31.	In The State v Yunati Epa (2008) N3309, the offender burnt down a semi-permanent house constructed with a corrugated iron roofing and the rest bush material with its content. Estimated loss was placed at K9,000.00. The offender and the owner of the house were married to two sisters. The offender and his family also resided in the house. Some differences arose concerning the offender's wife and children being sent away on a number of occasions by the victim and his wife to his wife's village and he had to meet the costs of their return on all those occasions. On one of those occasions, one of the prisoner's children received fire burns to her body. Concerned about the safety of his family, the offender warned the victim and his wife not to send his family away again because if they did, he would take action against them. His family was sent away again and this infuriated the prisoner. He then went to the house and set it alight. On a guilty plea, the offender was sentenced to 3 years imprisonment in hard labour less the period for pre-trial custody. The balance of the term was wholly suspended with conditions including an order for restitution. 

32.	In The State v James Wakis (2008) N3426, the prisoner had a long-running dispute with his brother over the oil palm block which they shared and on which they had separate houses. He joined with two others and entered his brother's house, assaulted the occupants and forced them to flee. He then poured kerosene around the house and set it alight. The result was that the dwelling house and an adjacent haus boi both semi-permanent buildings were completely burnt down including the properties in them. On a guilty plea, the offender was sentenced to 6 years less time spent in custody and the balance of the sentence was wholly suspended with conditions.

33.	In The State v Anton Towakra (2009) N3845, three offenders were convicted of two counts of arson after a trial. For the first count, they were convicted of burning down their relative's permanent dwelling house and properties worth K67,667.90 and bush material kitchen house worth K8,000.00. For the second count, they were convicted of burning down the first victim's brother's permanent dwelling house-canteen worth K11,371.60. For the first count, each offender was sentenced to 9 years imprisonment in hard labour. For the second count, each offender was sentenced to 7 years imprisonment in hard labour. The total potential sentence each prisoner was to serve was 16 years, but reduced to 10 years applying the totality principle. Seven years of each sentence was suspended on terms. 

34.	In Bart Kiohin Mais, the prisoners with others burnt down a semi-permanent dwelling house made of corrugated iron roofing and the rest with bush materials. Household goods and clothes were also destroyed. It was a spontaneous attack executed by the prisoners and several others acting on the belief that the victim had stabbed a brother of one of the prisoners which was true and constituted some de facto provocation. They then took a plastic container of petrol, poured it around the house and set it alight. No one was in the house at the time. Guilty pleas were entered. Sentences of two years imprisonment in hard labour were imposed on each offender wholly suspended on terms.

35.	In The State v Peni Bilak (2005) N2866, the prisoner burnt down a bush material dwelling house acting on the belief that the owner of the house practiced sorcery to kill another. The prisoner and his friends threw stones at the house forcing the victim's family to flee from the house. The prisoner and his friends proceeded to pull down the bamboo walls. They then took a plastic container of kerosene, poured it around the house and set it alight. As a result of the fire, the victim and his family lost their personal belongings. The court sentenced the prisoner to two years imprisonment in hard labour. 

36.	In Mono Kukiwa, I convicted the offender, aged 35 years of arson after a trial for burning down a bush material constructed dwelling house in the Lumusa District, Western Highlands Province. It cost about K1,000.00 to construct the house and personal belongings worth K700.00 went up in flames. I sentenced the offender to 6 years imprisonment in hard labour. The pre-sentence custody period of 2 years, 10 months and 1 week was deducted leaving 3 years, 1 month and 3 weeks to serve. I suspended 3 years on terms. 

37.	I am satisfied that the prisoner has made out a case for the maximum penalty not to apply and for a sentence below the starting point of 10 years to be imposed. 

38.	Taking into account all the circumstances of this case, I consider the appropriate sentences in the present case to be for the first count, 7 years imprisonment in hard labour and for the second count, 4 years imprisonment in hard labour.

39.	These offences were committed in the course of a single transaction therefore the sentences will be served concurrently: see Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 for discussion of the principles applying to concurrent and cumulative sentencing. The effective sentence for the two convictions will therefore be 7 years.

40.	The offender has been in custody since 17 April 2011. The total period to be deducted will be one year, 4 months and 1 week leaving 5 years, 7 months and 3 weeks as the balance of the sentence to be served (the remaining term).

41.	In the exercise of my discretion under Section 19 of the Code and in applying the principles in Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91, I will suspend part of the remaining term on the following conditions:

1.	That the prisoner shall immediately serve 3 years, 7 months and 3 weeks in custody.

2.	After serving the custodial sentence, the prisoner shall be discharged upon entering into his own recognizance without any surety to keep the peace and be of good behaviour for 2 years.

3.	That the prisoner shall completely refrain from consumption of any alcoholic or intoxicating substance including illicit drugs during the period of suspension.

4.	That the prisoner shall reside at New Camp, Panda village, Dei District in the Western Highlands Province for the duration of the period of suspension.

5.	That the prisoner shall not leave the Western Highlands Province without the permission of this Court during the period of suspension.

42.	In the event that any one of the conditions set out in the preceding paragraph is not complied with, the prisoner will be arrested and sent to the Baisu Correctional Institution to serve part of the remaining term of 2 years which I have suspended.

43.	I order that an appropriate warrant of commitment be issued to give effect to this sentence forthwith.

44.	I sentence the prisoner accordingly. 

______________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner