N10864

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 404 OF 2021

THE STATE

V

THOMAS MANGA
(No 2)

Minj : Miviri J
2024: 13th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson 436 CCA – Trial – Tractor Registration TAA 769 – Dispute Over Payment Of Compensation – set on fire – Burnt Down K 80, 000.00 Valued – High School Teacher – Middle Aged 62 Years Old – First Offender – Law Into Own Hands – Defiance of Rule Of Law – Offence Committed 20 year  – Dispute Over Company Performance Management – Opportunity to Make Good Loss of Tractor – Suspended Sentences Conditions For Reconciliation.

Facts
The Accused put burning wood with dried Kunai grass lit and placed the fire on the Tractor TAA 769 belonging to the Company burning it to the ground. He was angry that he was not paid compensation that he had demanded off the Company.

Held
Unlawful and wilful burning 
Tractor property of Company.
First Offender.
Dispute over Running of Company.
Middle aged 62 years old.
Opportunity for Restitution.
5 years IHL suspended on Conditions.

Cases Cited: 
Public Prosecutor v Hale [1998] PGSC 26; SC564 
The State v Tardrew [1986] PNGLR 91
Polau v State [2013] PGSC 6; SC1231
Kongian v State [2007] PGSC 45; SC928
State v Raka [2021] PGNC 513; N9327
State v Kikob [2008] PGNC 313; N3944
State v Warren (No 2) [2003] PGNC 99; N2418

Counsel:
J. Kesan, for the State	
R. Mangi for the Defendant
						
SENTENCE

13th June 2024 

1.	MIVIRI J: This is the sentence of Thomas Manga of Kimil, Banz, North Wagi, Jiwaka Province who was convicted of the unlawful and wilful setting fire to a Ford Tractor registered number TAA 769 valued at K 80, 000.00 the property of Komban Plantation Limited.

2.	It was arraigned that he on the 23rd July 2002 around midday, when Police and the management of Komban Plantation Limited went to retrieve the Ford Tractor, registered number TAA 769 from his village Kuman, he set it on fire wilfully and unlawfully destroying it. It was valued at K 80, 000.00 the property of Komban Plantation Limited. He had driven it to his village over a dispute over compensation allegedly due to him from the subject company.

3.	His conviction was pursuant to section 436 for arson reading, “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.”

4.	He could be sentenced to a maximum of life imprisonment for the offence. It would follow if his case by its facts circumstances is considered the worst offence of arson. I hold that it is not the worst case because it arises out of a dispute within a company. And it is relative to the performance of that company and dues he allegedly is due from that company. It is therefore not the worst offence of arson. It could have been easily the subject of civil proceedings to be able to get what he was due from that company. The burning of the tractor in my view showed lack of respect for the rule of law Particularly serious because he was a high school teacher. And an elderly person in his 60s. It could have been easily resolved through the process of law. Taking the law into one’s own hands must be stopped. It will not be tolerated ever. Particularly given that the police had attended the dispute. He ought to have restrained himself from the actions that he took. What he has done has landed him in jail. It is a very serious offence depicted out by the will of the legislature imposing a maximum penalty of life imprisonment. But his facts do not warrant that be imposed, but surely a determinate term of years. Sentencing is not a mathematical formular but derived ultimately from weighing out the aggravating, mitigating and any extenuating circumstances to arrive at a just proportionate due the prisoner. And that will be what will be done here.

5.	Because what he had done will not solve whatever was that he had with the company due him. It is a company from the evidence that has come of the people there in that area. Dividends earnings of the Company need the equipment such as the subject tractor to produce money so persons there will enjoy what is due them from its performance. The burning of the tractor means that the company will have a tractor less to do its operations. The offence took place on the 22nd July 2002 which is 20 years ago. And he was taken into custody and charged with the offence on the 30th July 2020 in a formal record of interview. That was almost 18 years later. It is not clear why it has taken that long to bring it to the law. Offences breaches of the law must be processed right there and then when it occurs. It should not be allowed to wither so that a person accused life is taken out in this way. Yes, criminal offences do not have time within which to be brought out in the law. But when a person accused is there and persons who are affected as a result do not engage the process of the law, for reasons known to them, it really draws bad in the case of an accused if he has taken amends from that. For the complainant victim to sit out in this manner giving 20 years and to come as it is now, is bad particularly when life has moved on for all. Here it is even bad because there are no effects of that crime painted clear before the court by evidence to show the seriousness, and the effect of that crime on the victim, here the company and its people there. One cannot sleep over breaches of the law and bring it many years down as is the case here. This is a commercial matter but for the arson of the tractor. In criminal settings as here, the sentencing is seriously effected if there is no fault of the prisoner that he is now to be sentenced after 20 years has lapsed since the commission of the offence. It will be different if he has taken pains to avoid the long arm of the law. Where he is easily available to be processed in law, but the complainant has set out all these years to wake up 20 years later, and to bring him to the law, given that he also has carried on his life without breach of the law, the sentencing must seriously take account of that fact. It will have a bearing on the sentence to be imposed here. I bear in mind the evidence here that there are commercial matters relating to this offence in the civil registry. Given it would not in my view justify immediate incarceration of the prisoner.

6.	I take due account that the prisoner is a first offender in his 60s now 63 years old. A high School teacher by profession currently teaching at high school. That career will be affected, and it means a teacher less for pupils in that high school who depend on him to provide that service. From the way that he has observed his bail conditions and appeared in Court until after conviction, he appears to be a responsible and law-abiding person except for this crime. It is out of the ordinary for him. And really is a commercial and business basis that has drawn him here. He has no doubt learnt the hard way that it does not pay to engage in criminal behaviour. And it does not pay to be take the law into one’s own hands.

7.	I do not discount that it was his hands that brought the tractor destroyed. And this is not set out very well in the evidence that the State has produced. But the value of the tractor has not been settled. Wii Pau director of the said company said it was valued at K 200, 000.00 but produced no papers warranting that figure. And the indictment set it at K 80, 000.00 again with no evidence led to confirm that amount as being the value of the subject tractor. Its present value and status after 20 years has not come before the court so that what ever damage done then is clear. And what actions have been taken to see out that it had burnt dashboard and tyres repaired is not clear. In this regard relevantly whether it is up and running serving that company or not is not clear. Also how has its demise if that is the word effected the operations and the earnings of the company is not clearly settled by evidence.

8.	From the evidence of the witnesses including one Wii Pau, director of the subject Company, it is a company of that particular area benefitting that community and the village there. The company Plantation Okay Corporation is held in shares by that local area people, some of whom have come to testify before the court both in prosecution and defence. No doubt they must be encouraged to run companies such as this to benefit the people and to develop their lives and the Country. That is without saying, but lawlessness must be stopped for the good of all. Persons who have like mind as the prisoner must be stopped and tailed to follow the due process of the law to solve disputes. In his case he is a high School Teacher teaching yet but resorted to this illegal criminal behaviour. It must be laid out in bold that such has no place in the law books and must be immediately stopped in its tracks by strong deterrent and punitive sentences. Of course, gauged with the personal antecedents and circumstances of the prisoner as here. He is not the sacrificial lamb but a signpost for all others who think and dare to take that path.

9.	I am mindful that all are from the same locality, and it is their company. It is their responsibility jointly to see it operating and benefitting the people there. The prisoner has resorted to the breach of the law over a matter pertaining to its administration and operations serving the shareholders there. It must be encouraged to continue to operate for its people including the prisoner. But he must be placed in very clear shackle by the law that his actions will not be tolerated, and he will be impounded should he breach into sanctions due him under law. This is a case where the evidence before the court is sufficient to fill out what was settled in Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). 

10.	What is materially lacking here is the extent of the damage to the subject tractor. And if there were any repercussions in the earnings of the company. If so, how much so that the seriousness of the actions will entail in the sentence to be passed upon him. In this regard the views by The State v Tardrew [1986] PNGLR 91 is relevant and applicable because suspension is not an act in leniency, but a form of punishment that is to be served outside the prison system in the community based upon evidence that the prisoner will indeed live to the promise made in Court. There is material upon which the orders sought will materialize. Here I am mindful that all are from the same area. The dispute that led to the arson is over the performance administration of the Company. All must observe the law continue to serve the company, so it benefits their people. And the prisoner will abide by the law in all his dissatisfaction. He is a first offender a high School teacher. He has demonstrated observation of the law by the way that he has observed his bail conditions to the eve of trial. It is his character he is not a bad person. The sentence must take account that he is a 60 year old high school teacher still teaching at a high school.

11.	In Polau v State [2013] PGSC 6; SC1231 (8 May 2013) the appellant pleaded guilty to setting fire upon a bush material dwelling that was burnt down. He was sentenced to 5 years imprisonment in hard labor of which three years was suspended. And the court considered the prevailing dispute over the subject land that led to the arson. Here is dispute in the operations of the company. The prisoner in a way has cut off the hand he will feed from. As in that case Prisoner here is a first offender but ran a trial to secure conviction. There was no error, and the appeal was dismissed, and the sentence was confirmed. That is not the situation here. Nor is it the situation in Kongian v State [2007] PGSC 45; SC928 (3 September 2007) because in both these cases the houses are hauswin made from bush materials which is not the case here. So, a reduction of the sentence from 13 and 15 years to 3 and 5 years is in order there. Here it is a tractor value then and current not disclosed. It will make a very big difference in the sentence to be imposed. Further the case of State v Raka [2021] PGNC 513; N9327 (25 November 2021) facts do not par out with the present set of facts and circumstances so that sentence is considerate here. A dwelling house was set on fire culmination of fighting with K20, 000.00 worth of properties destroyed. That is not the case here. And therefore, that case is not applicable here in the sentence to be passed. 

12.	In State v Kikob [2008] PGNC 313; N3944 (15 February 2008) 5 and 8 years IHL were imposed upon the prisoners with conditions for suspension who set fire to bush material dwelling houses and a kitchen house of the victim. Both pleaded guilty to the arson. This is not a guilty plea and is a trial on a tractor valued undisclosed. It will draw a sentence comparatively low given. Because this is not a case where the lives of the persons within are deliberately put at risk warranting the penalty to reflect including where the level of violence exerted is high the sentence must reflect that fact: State v Warren (No 2) [2003] PGNC 99; N2418 (20 June 2003), 15 and 16 years were imposed upon the prisoners after trial for a raid where 15 houses were burnt down by men who were armed with guns and other weapons acting in revenge for the stabbing of one person by another. They were first offenders.

13.	Much of all these is not present here warranting a high sentence. I consider that a proportionate sentence given all would be 5 years imprisonment in hard labour which I so impose upon the prisoner forthwith for the crime of unlawfully and wilful setting fire to the Ford Tractor registered number TAA 769 valued at K80, 000.00 the property of Komban Plantation Limited. 

14.	In the exercise of my discretion pursuant to section 19 (f) of the Criminal Code, I order that the 5 years IHL is suspended on a 5 years GBB on the condition that a customary peace reconciliation is held between the prisoner and the Company officials and the local community of that area within 6 months as of todays date which eventuates on the 13th December 2024. That will be witnessed by retired Chief Sergeant of the Royal Papua New Guinea Constabulary James Goimba and the Police Station Commander Minj Police Station who shall file a report of that into this Court through its registry here.

15.	Should the prisoner offend this condition or any law within that period of 5 years he shall be arrested taken before the court and will serve the 5 years now suspended. He will know what it is like to be in prison by virtue of the day he has now spent in custody after conviction on 12th June 2024.

Ordered Accordingly
_______________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant