State v Bukere [1999] PGNC 18; N1848 (8 April 1999)

Unreported National Court Decisions

N1848

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. 1036 OF 1998
THE STATE
-V-
SEYE WASEA BUKERE

Lae

Sakora J
11 March 1999
8 April 1999

Counsel

Mr Peter for the State

Mr Inkisopo for the Defence

SENTENCE

8 April 1999

SAKORA J: You pleaded guilty to the charge that on the 26th day of January 1998, at Kabwum in the Morobe Province, you wilfully and unlawfully set fire to a building, a Pre-school classroom, the property of the Indagen Community School.

The agreed facts for your plea demonstrate the following circumstances. On the evening of that day about 11 o'clock you went to the Indagen Community School at Kabwum and set fire to the building that housed the Pre-school classroom. It was the State's case that after setting fire to the building you stood beside it and prevented people from putting out the fire, clearly intending that it should be destroyed completely.

As a consequence the building and its contents, valued at K1,026.00, were burnt to the ground. It would appear that prior to this act of arson on your part you had a continuing dispute with the school authorities over the land on which the Pre-school building had been constructed. In your Allocatus you said that this structure was erected some three metres outside the school boundary. You told them to remove it and erect it within the school grounds proper but they did not heed your many requests. You said that you and your father requested verbally and in writing many times over some four years but to no avail.

The second source of contention and conflict between the school authorities and yourself was the killing of your pig by the Headmaster. And despite your demands the Headmaster had not compensated you for the pig. Therefore, you said, you got angry and burnt down the classroom.

On the serious question of penalty or punishment for your offence, I have had the benefit of hearing both yourself and your lawyer, and the lawyer for the State. You yourself explained why you committed this offence (as I have related above). I note that you expressed regret, remorse, for what you did, which you quite correctly described as "taking the law into my own hands". And you urged the Court to take account of the fact that you are a first offender, an ordinary villager and not an urban youth. Under these circumstances you sought mercy of the Court in its consideration of an appropriate punishment and allow you "to go to the village".

Your lawyer, for his part, acknowledged that you had covered the history of this matter comprehensively, as well as noting for the Court's attention pertinent factors. You are aged about 22 or 23 years, and single. You yourself come from Waren village in the Kabwum district. Fifth in a family of 9 children (6 boys and 3 girls) you completed grade 6 primary education at Indagen Community School in 1990. Both parents are still alive; they are engaged in subsistence farming. Your family and yourself are members of the Lutheran Church.

You appeared from a K100.00 cash bail after initially spending two weeks in custody upon your arrest. As well as noting, for the purpose of considering an appropriate sentence for your offence, those matters urged upon me by both yourself and your lawyer, I have also noted what the lawyer for the State had to say.

This is a very serious charge indeed. This seriousness is reflected in the sentence or punishment the law itself prescribes, which is life imprisonment as the maximum. The learned counsel for the State urged a custodial sentence, not only to deter you but as a general deterence to others who may be minded to do likewise. You have an ongoing unresolved dispute with the school. It was submitted that a custodial sentence will, under the circumstances, ensure that you do not take the law into your own hands again.

The law considers arson as a very serious offence because it considers protection of property rights, both as to real and personal property, as very important. It is, therefore, the purpose of law to protect individuals' property from theft, physical damage or destruction (through deliberate and wilful actions such as arson), unjust deprivation or compulsory acquisition (by State authorities).

Needless to say, this protection, reflected in the constitutional and criminal laws of the country, extends to customary land also, and its usage and enjoyment of it. This was, it would seem, the whole basis of your grievance against the school authorities for some four years or so, and compounded further by the later incident of the killing of your pig by the headmaster. You obviously felt your right to your land had been interfered with (or was deprived of) when the school erected the classroom outside its designated proper boundary and thereby encroached upon your land.

In the context of your "land dispute" with the school, compounded as it was by your grievance about your pig being not compensated for, it cannot be helped but noted that the encroachment upon your land affected a mere 3 metres, as you yourself stated, beyond the school boundary. Whilst the Court acknowledges the vital importance and the very emotional significance of land to traditional peoples of PNG, the serious consequences to a school situated in a rural community must be contrasted with the mere 3 metres encroachment upon your land which may not have inconvenienced you in any significant respects.

The Court cannot help but note that this is the very school which gave you a full primary education. The school exists for the benefit of your particular community, its primary and only purpose being to bring basic education to the children there. It is a fact of life these days, and a continuing and worrying one at that, that government support for this important social service is not always there. Schools always, these days, lack proper level of staffing, teaching materials and equipment are never enough, and classrooms and other necessary facilities are often non-existent or inadequate, or run-down.

Under these circumstances, to lose a classroom with its contents totalling K1026.00 in value is a devastating experience for a school such as this, and its effects are bound to be continuing. Schools, like other social services such as hospitals and other health facilities, can ill-afford to lose classrooms and equipment. More often than not, schools, hospitals or aid posts in the rural communities of PNG are the direct result of community self-help efforts because of government neglect and/or inaction.

I make these comments to underline that, whatever may have been the rights or wrongs of your grievance with the school authorities, you had no justification for what you did. Infants who were to benefit from early exposure to formal education had and have been directly affected adversely by your action. In this respect it is instructive to note that the Court has been told only one side of the story about your grievances, yours. I have not had the benefit of the school's and headmaster's versions: their responses and attitudes to your allegations. It would have been useful and pertinent to the Court to have these put before it by the State.

Be that as it may, it must be emphasised here that your action did not solve anything at all, least of all your personal grievances. It only made matters worse, firstly, for yourself, and, secondly, for the school with very serious consequences. It involved you in being charged and subsequently convicted of a very serious offence carrying the maximum penalty of life imprisonment. For the school, great inconvenience was caused, as well as the needless loss of a valuable asset.

Schools are not in the communities for their own independent existence and benefit. They are there for a particular community's benefit; for the education and advancement of its children. You yourself were a direct beneficiary of this school. You repaid this benefit by burning down one of its classrooms!

To destroy school property in this way is counter-productive and expensive for the community concerned. Children are deprived of proper and adequate facilities and equipment for the learning process. Schools are not remote and uncaring, unresponsive institutions. They can, therefore, be properly characterised as real community-based and functioning institutions; they are there for the community's purposes and benefits.

There would seem to me to be an undesirable culture abroad in this country in recent years that finds practical expression in vandalism and other deeds of destructiveness such as arson. This culture seems to say that when ever any individual or group has some real or imagined grievance of one kind or another, it is permissible to employ stand-over tactics, threats and blackmail to get his or its way. More often than not, these undesirable and uncivilised forms of behaviour find innocent people and valuable social service infrastructure as victims. Thus, schools, hospitals, communications and transportation facilities are targetted for vandalism and destruction, and innocent people for blackmail and intimidation.

In these days of dwindling or non-existent government funding for public purposes, there is a greater need to preserve and properly maintain the few public facilities that we do have. And proper level of infrastructural development for the provision of social and economic services has been woefully lacking despite nigh on 24 years of political independence.

I condemn this undesirable culture of wanton vandalism and destructiveness that is driven by selfishness and lack of respect for authority and for other human beings, not to mention an absence of a sense of community. It is driven also by pure idleness, resulting in the growth of what can properly be described as the hand-out mentality; waiting idly to receive something for nothing. I condemn this in all its manifestations.

There is, therefore, in the end result, nothing redeeming about what you did that I can find. Your reasons, whether real or imagined, neither excuse nor justify your action.

Though no case law has been cited to me by both counsel, I have taken the liberty of doing a brief research on my own to assist me in my consideration of an appropriate sentence. I have thus been greatly assisted by the decision of Justice Doherty in the case of The State -v- Ipu Samuel Yomb [1992] PNGLR 261. The decision helpfully refers to other cases of arson in this jurisdiction in recent years: the unreported decisions of Justice Jalina in Boas Nodai and Elsie Marasmalik; and Justice Salika in Linus Kameko.

In Ipu Samuel Yomb, Justice Doherty sentenced the prisoner to 5 years IHL. The prisoner had pleaded guilty to the act of arson in setting fire to the house occupied by his sister-in-law and her family. This was in reprisal for the ill-treatment of his sister by her husband. There was here a very serious and imminent danger to the safety and lives of the householder, his wife and children. The family had been asleep when fire was unlawfully and wilfully set to their home. Upon discovering their home was on fire, they tried to open the door to the house to escape but it had been locked from the outside by the prisoner. The family eventually escaped unharmed by forcing open one of the walls of the house. The house and all contents were destroyed by the fire.

Four years imprisonment was the sentence imposed by Justice Jalina in Boas Nodai where a copra drier had been set on fire. But his Honour imposed 2 years in Elsie Marasmalik where the prisoner after an argument with her brother, set fire to his house. The sentence was then suspended. It was never suggested that anyone had been in either the copra drier or the house when fire had been started.

In Linus Kameko my brother Salika J. had sentenced two men to a term of imprisonment for 5 years each for setting fire to a family home as an act of reprisal for alleged sorcery. The victim and his family had been in the house at the time it was set on fire.

Her Honour Justice Doherty set down 5 factors or aspects of the case before her that she considered relevant when exercising her sentencing discretion (at p. 263). Although the structure in the present case was not a domestic residence, I respectfully adopt these as relevant considerations in sentencing in arson cases. From the few cases in this jurisdiction, the worst cases involve family dwellings with occupants in at the time of arson.

At the other extreme lie the cases of empty residential premises. I have not come across any case involving large commercial or public building of great value and housing large number of workers and equipment.

But as noted earlier, the law considers arson as a very serious offence indeed. The offence itself is included in the group of criminal offences generically described as "property offences", located in Chapter VI of the Criminal Code Act. Offences there include: Stealing and like offences; destruction of property; and arson. This is a throw-back to the English common laws reverence for and protection of private property. Thus, the saying: An Englishman's home is his castle.

Finally, on the serious task of determining an appropriate sentence for your offence, I note the following matters that have been urged upon me by your lawyer, and which I have taken into account in your favour:

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Contrasted and bad agatheseof cothose factors of seriousness ness and aand aggravggravation discussed earlier.

It isIt is, therefore, the judgment of this Court that you be sentenced to a term of imprisonment for four years. After much thought, it is the opinion of this Court that the sentence here must reflect a need to deter both yourself and others who way be similarly inclined. A school classroom serves an important and useful purpose. Its destruction causes great inconvenience and disadvantages large number of children. To replace it costs time, effort and money. The structure you destroyed was of permanent materials, intended to last and serve for a long time.

This sentence is intended to also send the message that wanton vandalism will not be tolerated. Similarly, self help justice is intended to be deterred.

From this sentence of 4 years must be deducted the time you have spent in custody awaiting trial or disposal of your case by the Court. The period is 2 weeks, leaving the balance of 3 years and 11½ months. In the further exercise of the Court's sentencing discretion, I deduct the period of 3 weeks from the above balance. The Court intended to sentence you on 15 March 1999, but this had to be further deferred through no fault of yours.

You are, therefore, ordered to serve a period of 3 years, 10 months and 3 weeks imprisonment IHL.

Lawyer for the State: The Public Prosecutor

Lawyer for the Defence: The Public Solicitor