State v Tree [1997] PGNC 23; N1525 (12 March 1997)

Unreported National Court Decisions

N1525

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 984 OF 1996
THE STATE
v
MAFU TREE

Waigani

Passingan AJ
4-5 March 1997
10 March 1997
12 March 1997

CRIMINAL LAW - Arson - Dissatisfaction about inaction - Whether Action Amount to a defence - lawful act - S. 436 Criminal Code.

SENTENCE - Factors for Consideration - National Parliament Building - Community Concern - motivates prisoner - Appropriate Sentence - Deterrence.

Cases Cited:

The are no cases cited in the judgment

Trial On Indictment

The Accused Mafu Tree pleaded not guilty to one Count of Arson pursuant to S.436(a) of the Criminal Code. The facts appear in thgmendgment.

Counsel:

Mr Kaluwin & Ms Suwai for the State

Mr F Alua for the accused

10 March 1997

NGAN AJ: The accused Mafu Tree was charged that on the the 26th day of April 1996 he wilfully and unlawfully set fire to the Parliament House situated at Waigani. There is no substantiallicnflict in the evidence.

The accused is a young man aged 21 years. He resides with hisnts at s at Gerehu Stage 2. On 6th day of April, 1996 1996 at about 9.00 am he left huse to come to the Parliameliament House. He had a bag in his possession which contained a 2 litre Cordial bottle and a match. ot some pefrom the Gere Gere Gerehu Service Station. He arrived at the Paent Hont House and was allowed into the Public Galleryecuriards. He reHe rested for a moment. en poured petrol on severaeveral seats and oand on the Carpet floor. He then set alight with a match. #160; As he was walking o t of the gallery he heard guards calling out that the Gallery was on fire. He was st by Securiards ands and later taken by Police to the Gordons Police Station.

The fire first witness called in the State Case was Set Leo Omakan, the Investigating Officer. He gave evidence of anrvieerview with the ache accused on the 27th and 28th of April, 1996. That the accused made admnssions but that he gave reasons for his actions. The Record ofrview, handwrandwritte typed was marked “Ex20;Exhibit G1 & G2.” His reasons to ions 48 and8 and 50.

“Q.48......

A.ټ & To talk to thto the Politicians they they would not listen to you because we are nothing compared to them.&#16at I his time around wund will make them think real hard.

Q.50......

A. &#160 &##10;& Yes, a fair bit of t of advise regardless of whether you are big man or not its high time that one has to think seriously and make a complete change of hiself e borin ank to God because through him him everyeverythingthing will will go well. I sometimes come to tof ouof our spiritual lives that makes me often worry about it.”

The following witness’s Statements were tendered by Consent:

Eric Akehibit “A”

Dominic Walukia Exhibit “#8220;B”

Anton Korohi Exhibit “C”

Likot Kiare Exhibit “D”

Leslie Kaimalan Exhibit “E”

Peter Wangi Exhibit “FI & F2”

Geno Magu Exhibit “H”

Lua Boa Exhibit “I”

Most of these witnesses are security officers at the Parliament House. Jacob Wemen was one of them and was the final witness in the State case. The Gallery was fiwith smoh smoke. That the fire ut off by thby the automatic water sprinklers before the Fire Service vehicle arrived.

O

On the evidence before me I make the following findings at the outset:tset:

(a) that hai C or seats and thnd the floor Carpets were affixed to the building and were part of the Parliament Building;

(b);ټ&##160; on tth day of April, 1996 between 9.00 am and 10.00 am 0 am the athe accuseccused setd set fire fire to the Parliament House by setting fire on the chairs or seats and floor carpets;

(c) &##160; that that the accus2d&#8 a7;s action was wilful, that is, his action was intentional and deliberate; and

(d) ټ that that the Crime of arson has estabd.ISSU>ISSUES

The only issue before more me nowe now is whether or not the accused’s action was unlawful. Accordinghe OxDicti, a lawa lawful act is an act which conforms with with or r or recognized by law.

In my opinion one does not need to go too far out of the wording of S.436 of the Criminal Code itself. That Section provides, in part:

“A person who wilfully and unlawfully sets fire to;

(a) & a building or structure, ure, whether completed or not or.p>

...

is guilty of a Crime.

Penalty: Subj Subject to Section 19, imprisonment for life.”

Therefore, iniew tlful liberate sete setting ting of fiof fire to a building or structure is in breach of S.436 of the Criminal Code, and therefore unlawful.

I have to consider the lawfulness or otherwise of the accused actions in light of his reasons. I am satisfied that histioaction is that of an ordinary reasonable citizen of Papua New Guinea. He expressed the very preaspread dissatisfaction rdinary citizens have because of the actions and decisions made by the leadership of this Nhis Nation. That is, the concern forrights and welfare of the little man on the Street. A60; And also thcern for afor a “God-fearing” Nation. The that everson includinguding the leadership should consider turning their lives over to Godo God.

The next consideration is wh the ns given are suff sufficient to excuse him from Criminal liability (as a defence). Pa0; Part 1 ion 5 (ss.22-3.22-36) of the Criminal Code Chapter No. 262, sets out the recognized defences available to persons charged with offences against any law. Iview ccused’s reasoreasons are not sufficient to excu excuse him from Criminal liability. But may be relevant on then thetion of penalty.

I therefore, find the accused guilty of the Crime of Arson under ther the indictment, that is to say, that heully and unlawfully set fire to the Parliament House, a buia building situated at Waigani.

VERDICT

Guilty of arson.

REASONS FOR SENTENCE

12 March 1997

PASSINGAN AJ: You have been convicted of a serious Crime. Subject 19 of the Criminalminal Code, the maximum penalty is one of life imprisonment. The Court found uilty on a on a charge of arson, that on the 26th day of April, 1996 you wilfully and unlawfully set fire to the Parliament Housbuilding situated at Waigani.

The facts are simple and not in dispute. You hadu had reasnd you plou planned what you were going to do. And you carried our plans lans on the 26th of April, 1996. But as the Court foue mann manner in whichexpressed your dissatisfaction was against the law. Y60; Your belief or cn cann cannot excuse you from criminal liability. Tha it is notfence recognicognized by law.

In deciding ding what penalty to impose upon you, in my view I am not permitted to be encedhe fact that this this is the most important building in the Nation. That factor alon alone should not aggravate the Crime, unless your intention was to destroy the building. On the evidence intention tion was to draw the attention of the leadershipiticians) to widespread dissatisfaction over many things.

Section 436 of the Criminal Code does not distinguish the diffetypes of buildings or the vthe value of damage caused. The penas the same for anyr any type of building or structure whether completed or not.

At the outset this is a serious Crime. Ahis is an important buildbuilding in the Nation. I hame difficuere. O60; O60; On the one hand your reasons for doing what you did are shared by many in the communities and throughoe Cou And aour action was aimed imed at the leaders, about 109 of them in Parliament.&#160 On the other the Parliameniament House i central point of Papua New Guinea, the seat of the Government. Furtre, you have have the the majority of the population (3-4 on) who will be affected. This consiion must be t be t be understood for the purposes of considering sentence and punishment.In this case I have to treo treat you the same as other offenders charged with this Offence. In youour I take into acco account the following factors:

(a) & that yoat you are a young man age 21;

(b) ـ; at offe offender;

(c) &#160 good background and Cter ater as deposed to by your Pastor, John Poha; a>

160;& &##160 although your your action amounted to a to a crimecrime in the end, your intention was to express a widespread concern or views of the communities ofa Newea.

I note that up to August 1996 sentencetences imposed by the National Court varievaried from suspended sentences on good behaviour to six (6) years.

Taking all the circumstances into account I consider the deterrent aspect an overriding factor in considering your penalty. My conclusion on penalty is that a sentence of four (4) years imprisonment in hard labour is appropriate.

SENTENCE

4 years imprisonment in hard labour.

ORDERS

(1) ـ&#1 ordet that you syou syou serve eight (8) months of your sentence.

(2) &#160therrorder that tlancelance years 4 months be suspended on the condition that you be of good behaviour for afor a peri period of 24 months.

(3) ټ&##160; be red.La

Lawyer for the Stae State: Pte: Publicublic Pros Prosecutor

Lawyer for the Accused: