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State v Ambasi [2018] PGNC 497; N7597 (7 December 2018)

N7597

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1239 OF 2018

THE STATE

V

YAKOP AMBASI

Kimbe: Miviri AJ
2018: 13^th November

CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson 436 CCA – Plea – semi permanent house –family conflict – set on fire – destroyed – prisoner intent to rebuild – first offender – PSR MAR dependent family block – no independent source of earnings – no real substance to rebuild house – custodial term appropriate

Facts
Prisoner argued with his brother over the bank card of their family block. On the subject date he took with him some lose fruits of oil palm set it alight on the veranda of the house of Lazarus Ambasi his brother. The fire grew and completely burnt down the whole house.

Held
Plea of guilty
Expression to rebuild the house
No basis to effect
Custodial term appropriate

Cases Cited:
The State v Kup [2018] PGNC 366; N7477
The State v Kondo [2018] PGNC 369; N7483
The State v Kongian [2007] PGSC 45; SC928
The State v Epa [2008] PGNC 41; N3309
The State v Wakis [2008] PGNC 111; N3426
The State v Evore [2006] PGNC 148; N3236
The State v Kongian [2007] PGSC 45; SC928

Counsel:

D Kuvi, for the State
B Takua, for the Defendant

SENTENCE

07^th December, 2018

1. MIVIRI AJ: Prisoner appears to receive his sentence after pleading guilty to burning down the dwelling house of his blood brother over a family dispute over the earnings from the subject block.
   

Short facts

2. The Prisoner and the complainant are blood brothers. Both argued over the bank card of the block of land at Barema block 1236 section 20 Bialla. Complainant swore at the prisoner who became angry. On the morning of the 12^th August 2018 he armed himself with a spear and loose oil palm fruit went to the house of the complainant placed the subject fruits on the veranda and set it alight. The fire grew and burnt down the semi permanent house of the complainant including his properties inside.
   

Charge

3. The charge is brought pursuant to s436 which states:
   

Section 436 Arson.

“A person who wilfully and unlawfully set fire to:

(a) a structure whether complete or not; or

(b) a vessel whether complete or not;

(c) a stack of cultivated vegetable produce; or

(d) a stack of mineral or vegetable fuel; or

(d) a mine, or the workings, fittings or appliances of a mine; or

(e) an aircraft or motor vehicle,

Is guilty of an offence.

Penalty: subject to section 19 imprisonment for life.”

Aggravation

4. This is the dwelling house of the complainant burnt down by his own brother over a family argument between both of them. The reaction of the prisoner is out of proportion as it is the next morning after the argument when he fronts up and commits the crime. Fortunately the complainant and his family are not in the house when it is set on fire and burnt down. Taking the law into one’s own hands in this manner is wrong and must be stopped at the outset by strong deterrent and punitive sentences. A man’s house whether it is made of high class material or semi permanent as here is a human beings abode and must be protected. It is a man’s castle. It is a basic human right to shelter and to have a shelter a house is not a light matter given the pain, time, money and resources spent to build one. It may have been a semi permanent house here but complainant no doubt spent time money and resources to put it up so that his family and he could have a home a place to go to at the end of the day to rest. He had personal properties within which have now gone up in flame and ashes. No value has been placed to show the level of loss suffered. It was a deliberate and calculated act of violence which will not be tolerated by the courts. There are avenues in law to resort to settle disputes and differences. These must be encouraged as the avenues to resort. Therefore strong punitive sentences against those who defy will be imposed.
   

Antecedents

5. Prisoner is originally from Waisinga village, Nuku, West Sepik Province. He is 44 years old blood brother of the complainant. A first offender who has pleaded guilty to the offence. By his action he has shown no brotherly love and forgiveness for his brother. It would appear that the family tie is not strong given that the natural father has stated in the presentence report ordered by the court, that the prisoner does not take heed of advice that he gives as the father. That he is afraid that the prisoner would take the life of a family member. That the prisoner is kept away from the family for some time. And he is not prepared to help the prisoner with compensation. That if both live together they would fight over the block and this is not the first time that this has happened between the two. Unless they are separated they will not stop fighting over it.
   
6. Prisoner is unemployed and depends for his survival on the subject family block. He has neither record of formal employment nor any evidence of education. He has admitted to the use of marijuana in addition to betel nut and smoke. He has expressed to reconcile and amend with the complainant for the better. He is a non practicing member of the South Sea Evangelical Church.
   

Presentence Means Assessment Reports

7. The complainant has stated that he does not want compensation and would like to see the offender in jail. That this is not the first time that he has been treated in this way by the prisoner. That the prisoner has an attitude problem and always argues over the subject block. That part of the block was given to him by their father but the prisoner always harvests oil palm from there in defiance. It is not a light assertion in view of the number of matters that have come before the court where violence has climaxed to grievous bodily harm and murder: State v Kup [2018] PGNC 366; N7477 (24 September 2018); State v Kondo [2018] PGNC 369; N7483 (27 September 2018). Further there is no proper material before the court to exercise discretion for a non custodial term on condition to rebuild the subject house. The complainant has refused outright coupled with the views of the father the propensity of the reoccurrence of the matter some time must be spent in custody to amend the prisoner of his ways.
   
8. In the State v Epa [2008] PGNC 41; N3309 (12 March 2008) this court in Tabubli imposed 3 years imprisonment suspended on conditions for the burning down of a semi permanent house. The total value of the building was K9000 and the prisoner had pleaded guilty to the charge. The presentence report was favourable to the prisoner with recommendation to rebuild the subject building and prisoner had the means. The court acceded. Here the prisoner does not have the means and he is considered a threat to the family and this is not the first time that this has happened within the family. In the State v Wakis [2008] PGNC 111; N3426 (24 July 2008) two family semi permanent houses were burnt down arising from a family dispute. The prisoner pleaded guilty, the court imposed 6 years imprisonment. There was defacto provocation and it was an isolated incident the prisoner cooperated with police and pleaded guilty to the offence. The sentence was suspended after time in custody was deducted with condition for compensation of K6000 to be paid within 6 months. There was reconciliation between the brothers which is not the case here.
   
9. In the State v Evore [2006] PGNC 148; N3236 (23 October 2006) 3 years imprisonment was given part custodial and part suspended. The prisoner had partially set fire to a bull dozer seat. He had a favourable presentence and means assessment reports. His parents in law and relatives were willing to help in the payment of compensation. Here the father has refused to help because of the attitude of the prisoner and the brother complainant has also refused compensation asking that he spends time in custody. It is a prolonged dispute although the prisoner has expressed to rebuild the house, he has not demonstrated any real means to draw. Presentence has recommended a long term with strict conditions. But there is no substance to coincide. He is a first time offender who has pleaded guilty but he does not have the means or the substance to fulfil rebuilding.
   
10. In Kongian v The State [2007] PGSC 45; SC928 (3 September 2007) there were four convictions of arson each of which were held to be disproportionate by the Supreme Court substituting 5 years from the original 13 and 15 years. Yes they were cumulative but considered in the light of totality were disproportionate to the gravity of the offence. The appeal was allowed in respect of the sentences.
    

Allocutus

11. Prisoner apologised for his wrong and asked to be given a chance to rebuild the house for his brother.
    

Issue

12. What is the appropriate sentence for the prisoner here?
    
13. The presentence and means assessment report did not support the allocutus of the prisoner that he would rebuild the house of his brother. He had no means and it is impracticable to consider a non custodial sentence based. Suspension would have been warranted by proper material to promote personal deterrence, reformation, rehabilitation entailed with restitution of the victim: Tardrew, Public Prosecutor v [1986] PNGLR 91 (2 April 1986).
    
14. Accordingly the prisoner is sentenced to 5 years imprisonment in hard labour for the crime of Arson pursuant to section 436 of the Criminal Code committed on the 12^th August 2018 against his brother Lazarus Ambasi.
    

Ordered Accordingly
__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant