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State v Yeskulu [2003] PNGLR 10 (24 April 2003)

SUPREME COURT OF JUSTICE

THE STATE

V

ANDREW YESKULU

WEWAK: KANDAKASI J

4, 23-24 April 2003

CRIMINAL LAW – PRACTICE & PROCEDURE – Indictment presented and accused arraigned before different judge – Whether appropriate to proceed on the basis of previous arraignment – No statutory prohibition against re-arraignment – Advisable to re-arraign to enable trial judge to be certain of accused final position – Trial judge needs to remind accused of what transpired under earlier arraignment before re-arraigning him - Accused entitled to maintain previous plea or change it.

CRIMINAL LAW – PRACTICE & PROCEDURE – Guilty plea to charge of arson – Accused claiming steps taken to rebuild the building destroyed by his crime and now prepared to provide free and supervise labour toward rebuilding and replace contents destroyed in the fire – Means assessment required to ascertain what means accused has to rebuild and replace contents of building - Pre-sentence report required to determine whether a sentence alternative to imprisonment is appropriate – Means assessment and pre-sentence report confirm accused having means to rebuild and replace contents of the building lost and accused not a threat to society – Community prepared to assist accused to rehabilitate in supervising any community service order – Suspended sentence on terms including an order for rebuilding and replacement of items lost imposed – ss. 2, 3, 4, and 5 of Criminal Law (Compensation) Act – ss. 19 and 436 of the Criminal Code.

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal liability or penalty – No compensation order can be made unless a means assessment report is requested and it confirms prisoner having means to replace property lost or destroyed by the criminal conduct in question - Compensation ordered in terms of rebuilding and replacing contents lost as a consequence of the offence ordered – Sentence to be suspended on condition that the orders for rebuilding and replacement orders being met – ss.2, 3, 4 and 5 Criminal Law (Compensation) Act.

CRIMINAL LAW - SENTENCE – PRACTICE & PROCEDURE – Arson – Parliament prescribed life imprisonment as maximum penalty for arson – Courts have imposed sentences far short of that – Offence is serious and is on the increase – Suggested category of arson cases and recommended sentences starting at 10 years for serious cases and 5 years for less serious cases – Presence or absences of factors in mitigation or aggravation may increase or decrease the sentences - s. 436 of the Criminal Code.

CRIMINAL LAW - Sentence – Arson – Burning down of elementary school classroom – Building built of bush material – Offence committed in a non-legal claim of a bona fide right of ownership – Guilty plea – Prisoner taking and prepared to take further steps to rebuild the building lost and replace contents lost in the fire – Means assessment and pre-sentence report support accused position and recommend non custodial sentence – First time offender – Expression of genuine remorse – 6 years suspended sentence on terms – ss.19 and 436 of the Criminal Code

SENTENCING POLICY CONSIDERED – Community based sentences.

Facts

The accused was charged for arson having burnt down an elementary school building containing 3 classrooms. He pleaded guilty. The Court reviewed the deposition and found that there was enough evidence to support the guilty plea, and convicted him. The Court then proceeded to consider sentence. The accused expressed remorse for what he had done and indicated that he had taken steps to rebuild the building and replace its contents. After considering the means test and pre sentence Reports The Court Held.

Held

1. Once a person is found guilty of a crime the onus is on him to show by appropriate evidence that he should not be given the maximum prescribed sentence.

2. In view of the mitigating factors and in particular the prisoner's undertaking to rebuild the school building and recommendation from the probation services and community for suspended sentence on terms, the prisoner was sentenced to a term of 7 years, the whole of which was suspended on conditions.

Papua New Guinea cases cited

Public Prosecutor v Don Hale (1998) SC564.
The State v Ipu Samuel Yomb [1992] PNGLR 261.
The State v Jack Oroko Tepol (08/10/99) N1941.
The State v Abel Airi (28/11/00) N2007.
The State v Otom Masa (20/12/00) N2021.
The State v Micky John Lausi (27/03/01) N2073.
The State v Dobi Ao (No.2) (01/05/02) N2247.

Counsel

M Ruari, for the State
G Korei, for the Prisoner

24 April 2003

Kandakasi j. You pleaded guilty to one charge of arson in that you burnt down an elementary school building, housing three classrooms on the 23rd of July 2002, at Tuonnumbu, in the Kubalia District of this Province.

The charge against you (indictment) was presented to this Court initially before a different judge last month. You pleaded guilty to the charge when put to you by the Court. But when the Court asked you to address it on your sentence, you claimed a bona fide claim of right over the land on which the building you burnt down was built. Given that, the Court decided to change your guilty plea to a not guilty plea and directed that your case to be tried in this Circuit.

When your case was called before me, both the State's lawyer and yours informed the Court of what happened previously. Your lawyer also told the Court that, he had sought your instructions in relation to your claim of a bona fide right and the availability of a legal defence. Based on his advice and your instructions, he informed the Court that you were no longer raising or pursuing your claim. I then sought both the State and your lawyers' counsel as to whether I should have you re-arraigned. They were both of the view and I agreed that you should be re-arraigned. You were therefore re-arraigned.

Upon your re-arraignment, you pleaded guilty to the charge presented against you. The State then admitted into evidence the depositions with your consent. I then read and considered the evidence against you. On the basis of the material in the depositions, I was of the view that there was enough evidence to support your guilty plea. I therefore accepted your guilty plea and had you convicted for the charge presented against you.

I consider that the procedure this Court adopted is appropriate for two obvious reasons. Firstly, there is no prohibition against a re-arraignment. All of the requirements both in the Constitution and the Criminal Code as well as the established practice is to ensure that an accused person fully understands the whole process that is in play against him. He needs to know why he is in Court and that he understands the charge against him. Also it is important, given the presumption of innocence that, what an accused person is saying both in relation to his guilt or innocence and passed that stage, his sentence is clear and is clearly understood by the Court.

Following on from the first is the second reason. An accused person is entitled to change his plea any time but before judgement even on the Court's own volition: See The State v Jack Oroko Tepol (08/10/99) N1941. Thus in my view, it does no harm for the Court to re-arraign an accused, if he was previously arraigned before a different judge. This will no doubt enable the Court to know exactly what the accused is saying about the charge, so as to eliminate any doubt as to what he is saying about the charge. Also, inevitably a lot of accused persons change their position between circuits. Some of these are on proper legal advice and others are on account of other factors. But all the same, the Court must be informed of the accused latest position in response to a charge against him. Through this process, a not guilty plea may turn into a guilty plea and a guilty plea might turn into a not guilty plea. It would therefore be unsafe to proceed on an assumption that an accused person is maintaining his earlier position.

Now getting back to your case, after having decided to accept your guilty plea and convicting you on the charge of arson in line with the above, I asked you to address me on sentence. In response to that, you expressed remorse for what you had done. In so doing, you acknowledged that, what you did was against your immediate society. You then informed me that you had taken steps to rebuild the building you had burnt down and replace its contents. You also informed the Court that you have about 300 vanilla plants, some coca and coconut plants and other cash crops. I then asked you whether you would be in a position to provide your labour free of charge toward the reconstruction work and other community work under supervision and also replace the contents of the building you burnt down. Your answer was in the affirmative. I also asked the principal of the elementary school who was present in Court to comment. He said he has not yet seen any material from you toward the reconstruction of the building.

I also asked Mr. Ruari, counsel for the State, as to whether, he would be opposed to a suspended sentence to enable you to rebuild the building by providing all the building material required. He indicated no opposition.

In the circumstances, I considered it appropriate that I should call for a means assessment report as to what means you have to do all that you said you are prepared to do based on the assets or properties you claim to have. I also considered it necessary to call of a pre-sentence report to determine whether it is appropriate to impose upon you the kind of sentence I intimated. Accordingly, I asked for these two reports from the probation services. This, in any case, I note that Iam obliged to call for and carefully consider as a matter of law: Public Prosecutor v Don Hale (1998) SC 564. This is particularly necessary to consider the appropriateness of a punishment outside the prison system. I have, in fact, imposed a good number of suspended sentences on terms based on such reports and recommendations. See for example, The State v Micky John Lausi (27/03/01) N2073.

I maintain the view that imposing a suspended sentence is not an exercise in leniency. But it is a form of punishment aimed at achieving one of the purposes of criminal sentencing, rehabilitation. I also maintain the view that a community based sentence is far more effective in appropriate cases, not only in terms of rehabilitation but serving both as a personal and general deterrence against other would be offenders. Persuaded by these, I imposed wholly suspended sentences in The State v Micky John Lausi (supra), The State v Abel Airi (28/11/00) N2007 and The State v Dobi Ao (N0.2) (01/05/02) N2247. Such sentences can only be given if there is a well balanced pre-sentence report, representative and reflective of the community's view on the kind of penalty that an offender should receive.

I have now received a means assessment report from the Probation Service, which incorporates a pre-sentence report segment. I take this opportunity to thank the Probation Service Officer here, Mr. Moses Galus, who has been able to furnish the report within the short time frame that was given him.

The means assessment report confirms that you have in fact taken steps toward reconstructing the building you had burnt down. It also confirms that you have K300.00 with your aunt. There is no confirmation of you having the kind of cash crops you informed the Court you have from which you could generate some cash income to buy and replace the teaching material that were lost in the fire. The report recommends that you be given a suspended sentence and be ordered to rebuild the classrooms you burnt down within 3 months. Then you be given a further 3 months to replace the teaching material that were in the building at the time of the offence. This is to minimize loss and suffering to the children in your village who are presently schooling under trees.

The Court now needs to consider and decide whether or not to accept the recommendations in the Probation Services report. It is trite law that the Court is not bound to accept and or follow the recommendations of such a report. See The State v Otom Masa (20/12/00) N2021, for an example and some of the circumstances in which a Court can reject the recommendations in a pre-sentence report.

A number of factors play an important part in the whole criminal sentencing system. One such important factor is the particular facts and the circumstances in which the offence under consideration was committed. The nature and or the type of offence involved as well as the community's response to the offence are also important considerations. The offender's own personal background, his response to the consequence of the offence and his preparedness to rehabilitate is also relevant. A sentencing Court is duty bound to strike a balance between the last two factors. In that process, a means assessment and a pre-sentence report do play an important role. I will consider each of these factors in the order in which they appear.

I start that process with a look at the particular facts and the circumstances in which you committed the offence. The relevant facts emerge from the District Court committal deposition, which was admitted into evidence with your consent. They are straightforward. They disclose that, in the early morning hours of 23, July 2002, around 2.00 am, you went to the elementary school at Tuonumbu and set a building housing three classrooms on fire. It completely burnt down the building together with its contents, mainly elementary school teaching material estimated to be K331.54. The building itself is estimated to be valued about K810.00. The total value of the loss you have brought upon the community is K1,141.54 as at the time of the destruction at your hands.

Although you claimed in your statement that it was only you, there is the uncontested evidence of other witnesses that clearly speak of you committing this offence with a Sabastian Bais. Also it is clear from other evidence despite your own claim against it, that you spread kerosene on parts of the building first and then set it on fire. It was therefore not an accidental burning. Instead, you deliberately set it on fire with intent to have the building destroyed completely.

According to your statement to the Police, you stated that you burnt down the elementary classroom building because your uncle, Robin Nangu, who actually owns the land on which the building was on, lost the council elections. You said you were angry over his loss. There is no evidence of any direction or suggestion from your uncle to do what you did. Even if he did, that would not have rendered what you did lawful.

There is no evidence to show or confirm that your uncle did in fact own the land on which the classroom building was built. Even if your uncle was in fact the owner of the land, it is not clear on what basis or terms the land was used to build the elementary school classrooms building. If it was on the basis that he was to be elected a councilor in the area, then that in my view, amounted to bribery, which is an illegal conduct. No one can be allowed to benefit from his or her own illegal conduct and what you did amounted to an illegal conduct on top of an earlier illegal conduct if the land was given to the elementary school in exchange for votes for your uncle. If however, your uncle gave the land away for free or sold it for some valuable consideration, it was already out of his interest. In any case, you had nothing to do with it because you were not the direct owner of the land.

Your actions, no doubt, affected the children who were attending the elementary school. The report from the Probation Services confirms that the learning and progress of the children have been seriously hampered by your actions. The children did nothing to reach such a set back to their learning. You had no regard whatsoever for their learning.

It is a common occurrence here in the East Sepik Province for people to carelessly burn down government and other public buildings. The most recent of this is the burning down of the Wewak District Court House. When these kinds of offences are committed, it is not an offence that is committed against a particular individual but the entire community in which such properties are located. The consequence of that is directly against a large number of people.

There can be no argument that it is the careless destruction or damage to public institutions, buildings and infrastructures that are seriously denying the progress of our nation. When a school or any of its classrooms is destroyed, a large number of students' future are seriously affected. That in turn means a destruction of a good number of potential and prospective contributors to the advancement of the country.

Given the bad impact, this kind of offences have against a particular community and the country as a whole in its struggle for development, the society expects the Courts to sternly deal with offenders like you. Parliament, after considering all things, prescribed a maximum penalty of life imprisonment under s436, subject to the Court's sentencing discretion under s19 of the Criminal Code.

There is no Supreme Court judgement on arson cases, which might provide us with some guidance as to how an appropriate sentence in an arson case can be arrived at. There are, however, a number of National Court judgements. Out of all of these judgements the case of The State v Ipu Samuel Yomb [1992] PNGLR 261 is viewed as providing some guidance. The Court in that case took 6 factors into account. These are:

1. the deliberate or very reckless putting of lives at risk;

2. the deliberate pouring of kerosene and setting fire to the roof, knowing that people were inside;

3. the deliberate locking of the door, to prevent any escape by any of the occupants;

4. the deliberate cold-blooded planning of the offence;

5. the value of the house and its contents to the occupants; and

6. the complete lack of provocation offered to the defendant by the occupants and their children.

The Court started with a head sentence of 7 years. It then had that reduced to 5 years on account of the offender being a person under the age of 20, he had no prior conviction and that he pleaded guilty. These and other cases subsequent to highlight the fact that deliberately and wilfully setting fire to a dwelling house is an aggravating factor. But even more serious is when the building or structure that is being set on fire has people inside.

In my view, just as all the other offences have their own categories, arson cases have their own categories. Without limiting the list, I list below the kind of category a case of arson may fall under:

1. a dwelling house with people inside;

2. a dwelling house without any occupants;

3. public institutions such as schools, hospitals, or offices with occupants inside;

4. public institutions such as schools, hospitals, or offices without occupants inside; and

5. a house wind or a garden house or a run down and deteriorated or incomplete structure.

Then of course other factors such as the type and value of the building, whether bush material, whether the offence is committed with premeditation with the aid of substances like kerosene or other such highly flammable substances like that would be relevant factors in aggravation. Similarly, a not guilty plea resulting in a conviction and or the offender having a prior conviction are factors in aggravation. At the same time, the opposite of these factors may operate in the offender's mitigation.

I am of the view that the kind of sentences that have been imposed to date, from wholly suspended sentences to 5 years, have failed to deter others from committing this kind of offences. In this province, alone there are a good number of arson cases pending on the list for trial. There are many instances of people everywhere in the country with more frequency in the highlands provinces in association with tribal fights, fearlessly and without hesitation, burning down a lot of public institutions and dwelling houses. The sentences therefore have to be seriously increased with a view to deterring other would be offenders. Crimes such as arson are an affront to progress just as the other serious crimes such as rape, armed robbery and or murder are. That is why Parliament has prescribed the maximum of life imprisonment. But Courts have seen fit to impose sentences well below life imprisonment. I simply do not know how a mere 4 years or 5 years or worse still a wholly suspended sentence compares or comes anywhere closer to life imprisonment and or the loss and suffering such an offence brings upon its victims.

I therefore consider that a sentence for a case of arson falling in the first, second, third and fourth categories without any aggravating factor should start at a minimum of 10 years. Where there are factors in aggravation, the sentence should be increased to terms beyond that up to the maximum prescribed of life imprisonment in the more serious cases. A sentence for a case of arson falling in the last category should start at 5 years, where there are no factors in aggravation. Where there are factors in aggravation, the sentence may go beyond that. Of course, in exceptional cases where there are very good mitigating factors, with the support of a pre-sentence report, a sentence below what is recommended may be imposed.

In expressing these views, I maintain the view that once a person is found guilty of a crime, the onus is on him to show by appropriate evidence that he should not be given the maximum prescribed sentence. This follows from my view that the presumption of innocence under the Constitution applies only up to the point when guilt or innocence is decided against an accused person. For the protection is in terms of an accused person being "presumed innocent until proven guilty according to law." Where a prisoner fails to demonstrate a case for leniency, he has no reason to expect a sentence other than the maximum.

Now returning to your case, I do not consider it appropriate and fair that I should start applying what I have just stated here to your case. Instead, I will allow this to be a warning to be sounded to would be offenders in Wewak and throughout the country that the sentences for arsonist will now increase substantially to counter the increase in the offence itself.

In order to determine an appropriate sentence for you, I note that, you burnt down a building that housed three elementary classrooms. There is no evidence of any of the students or the school doing anything against you. Even if they did, what you did is no justification for that. Schools, hospitals and other public institutions are built for the benefit of the whole community. So a commission of an offence against such properties amounts to an offence against the whole community directly. This makes the offence an aggravated one. It does not really matter whether the building is a bush material or not. What matters in my view is, what was its purpose and benefit to the immediate community and in the long term to the nation as a whole.

A further aggravation is the fact that there is direct evidence of you having planned the burning down of the classrooms building and set about executing it in the company of one other person. Not only that, you also used kerosene to assist you in your plan to completely burn down the building.

Furthermore, you are a mature person. You therefore had reason to know and appreciate the consequences of your offence. You also did have reason to know that burning down of the elementary classroom building would not make your uncle a councilor in your area, nor could it solve any other problem. Yet you chose to commit the offence.

Against these are the facts that, you are a first time offender, in that you have no prior conviction. The building was made out of bush material estimated to be at a value of a little over K800.00, less the teaching material which brings the total estimate of what was destroyed to a little over K1,000.00.

Secondly, you pleaded guilty to the charge, thereby saving the State more time and money in calling witnesses to establish your guilt. In furtherance of that, you have already taken steps to providing the material required for reconstructing the building. You are also prepared to provide your labour free of charge toward the reconstruction. You have expressed remorse and have undertaken to replace the teaching material that got destroyed in the fire. I also note that you are prepared to provide supervised community work. Your relatives whilst denouncing the offence you committed, they are prepared to help you to rebuild the classroom building.

I also note that you are married with about 4 children. Your father is dead but your mother is alive. Furthermore, the report from the Probation Services supports your wishes as to how you wish to make it right with your community, especially its children who are the real victims of your crime. There is no basis for me to reject these reports.

I therefore propose to start with a sentence of 7 years the whole of which I propose to suspend on the following conditions:

1. you provide all of the material required to rebuild the building you burnt down within 4 months from today;

2. you pay the K300.00 in your aunt's care and custody to the Tuonumbu Elementary School within 7 days from today toward a purchase and replacement of all of the elementary school teaching materials you had destroyed, in close consultation with the headmaster of the Tuonumbu Elementary School, and the Court file as to the items that were destroyed and needs to be replaced;

3. you provide free labour from 8.00 am to 4.00 pm each day commencing tomorrow to the Tuonumba Elementary School toward the rebuilding of the classrooms until the building is completed;

4. upon the full completion of the reconstruction of the classroom, you provide 5 hours free physical labour every Monday to Wednesdays and to any area of need in the School area and or the community in consultation with the community leader in the Tuonumbu area, the headmaster of the elementary school and the Probation Service here in Wewak for the whole of the balance of your suspended sentence of 7 years;

5. you remain indoors in your house in your village at Tuonumbu between the hours of 6.00 am and 6.00 pm;

6. you do not leave your village except with leave of this Court to sell any of your cash crops in Wewak with the prior approval and or endorsement of the village leader or the headmaster of the elementary school and or the probation officer on such terms as they consider appropriate;

7. you will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance with these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms;

8. the Probation Officer in Wewak shall attend on you each quarter to do a comprehensive review and report to this Court of your compliance of these terms;

9. if for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence of 7 years as at the time of the breach in hard labour at the Boram CIS;

10. you will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material;

11. you immediately enter into your own recognition to keep peace for the currency of your suspended sentence;

12. you accept that any member of your family or community will be at liberty to report to this Court for a failure to meet any of these conditions without any prior notice or warning to you; and

13. the Police shall also be at liberty to ensure and supervise compliance of these terms at any time.

I consider a sentence in these terms is preferred here because of the fact that you have the means to rebuild the classroom and replace the materials you destroyed. I also consider it appropriate as sending you to prison will be a strain on the public purse and the community will have to undergo the expenses of rebuilding the classrooms building with no or little contribution from you. Further, I note that a sentence in these terms will better rehabilitate you with the involvement of your own community leaders and serve a strong deterrent to you personally and to others in the community who might be inclined to committing similar offences. The sentence I propose here is also in line with what I have been saying in a good number of cases already such as in The State v Dobi Ao (N0.2) (supra). What I have said in these cases is that sentencing is a community responsibility and in appropriate cases, the Court should be ready to impose community-based sentences.

Accordingly, in the end, I order a sentence in the terms proposed above. In the event of a breach of any of the terms of the sentence, a Warrant of Commitment will automatically issue for the period remaining on the 7 years suspended sentence as at the time of the breach.

Lawyers for the State: The Public Prosecutor.
Lawyers for the accused: The Public Solicitor.