State v Epa [2008] PGNC 41; N3309 (12 March 2008)

N3309

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 154 of 2008

THE STATE

-V-

YUNATI EPA

Tabubil: Kandakasi, J.
2008: 5, 6 and 12 March

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular offence – Arson – Burning down of a semi permanent dwelling house – Provocation in the non-legal sense – Total value of building and contents K9,000.00 – Guilty plea by first time offender – Pre-sentence report recommending non custodial sentence on conditions including restitution – Prisoner has means to restitute - Head sentence of 3 years imposed wholly suspended on conditions – Criminal Code s. 346.

Cases cited:
The State v. Andrew Yeskulu (24/04/03) N2410.
The State v. Bart Kiohin Mais and Henry Kevi (23/03/05) N2811.
The State v. Peni Bilak (21/07/05) N2866.
The State v. Bob Wamu & 34 Ors CR NO. 510, 539, 648, 649, 650, 651 & 652 of 2006 (Unreported and yet to be numbered decision delivered in Daru on 15/06/07).
Rudy Yekat v. The State (22/11/01) SC665.

Counsel:
J. Kesan, for the State.
P. Kapi, for the Accused.

12 March, 2008

1. KANDAKASI J: You pleaded guilty to a charge of arson contrary to s. 346 of the Criminal Code, and I had you convicted on the basis of your guilty plea and received yours and that of your lawyer’s as well as the State’s address on sentence.

Relevant Issue

2. What remains to be resolved is the question of what is an appropriate sentence for you. This issue can be resolved by reference to the relevant facts, the offence and sentencing trend or tariffs, the factors operating for and against you and your family and personal background.
   

Relevant Facts

3. I turn firstly to a consideration of the facts and note that the facts giving rise to the charge, your guilty plea and your conviction are these. You originally come from, Lian Village, in the Kandep District of Enga Province, but now leave here in Tabubil. On 10 December 2007, you went to Gilson Lam, your brother through marriage’s house a semi permanent house consisting of corrugated iron roofing and the rest bush material. The house was situated at seventh corner here in Tabubil, where you also lived in with your children and wife who is the sister of Mr. Lam’s wife. Mr. Lam and his wife had on three different occasions, sent your wife and children away to Oksapmin, where your wife comes from. On one of those occasions, one of your children got fire burns to her body. So since than, you have become worried and concerned over the safety of your wife and children. Also on the previous occasions, you incurred costs bringing your family back from Oksapmin to Tabubil. You therefore, asked Mr. Lam and his wife not to send your wife and children away and warned that, you will take action against them if they do. They did not take you seriously and sent your wife and children away to Oksapmin where your wife comes from for the fourth time. That caused you to be angry so you went to Mr. Lam’s house and burnt it down with its contents. The total of all that you burnt is put at K9,000.00.
   
4. Immediately after burning down the house, you reported the matter to police here in Tabubil and surrendered yourself to them. From that day on, you continuously admitted to burning down the house and the reason for doing that. You are also prepared to restitute if the Court is able to give you time to do that. You have a motor vehicle which you are willing to sell to help restitute what you destroyed. Also, if need be, you will use income from a canteen in Kiunga which brings in K900 per month.
   

Offence and Sentencing Trend

5. With these facts in mind, I turn to a consideration of the offence and the sentencing trend and guidelines. Section 346 of the Criminal Code, creates and prescribes the sentence of life imprisonment for the offence of arson and its penalty of life imprisonment. This is however, subject to the Court’s discretion whether or not to impose the maximum sentence prescribed in the Code in all criminal cases, even in more serious offences such as willful murder, under s. 19 of the Code. Usually, in serious cases like willful murder and murder, non custodial sentences are considered inappropriate. In arson cases, I have carefully reviewed the sentencing trend or practice in the case of The State v. Andrew Yeskulu.[1] That work showed that the courts have in the past imposed wholly suspended or non custodial sentences in some cases. I also noted that, imposing such sentences have failed to deter other would be offenders and suggest that, the sentences should be substantially increased, given the seriousness of the offence and the maximum prescribed sentence being life imprisonment. In order to do that, I recommended the following guidelines:
   

"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."

6. I went on to say:

"I ... 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 prescribe 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."

7. I note that, other judges have accepted and or followed the guidelines I have suggested and imposed varying sentences, though not necessarily in the terms I have suggested. One of the first such cases is the case of The State v. Bart Kiohin Mais and Henry Kevi.[2] There, Cannings J., considered the guidelines I have suggested and he added a few more and decided to impose a wholly suspended sentence of 2 years with conditions. Amongst others, he found that, although fuel was used to burn down a dwelling house with several rooms built with wood and corrugated iron roof, by a group of offenders and that, the victims were directly affected, the offenders did not put the victims directly at risk as no one was in the house and the offence was not preplanned or calculated. He also found that, there was an element of provocation, as the offenders had heard that the owner of the house had attacked and stabbed one of the offenders’ brothers and killed him, which was partly true. Further, His Honour found that, the commission of the offence was isolated, they cooperated with the police although, they did not voluntarily give themselves up to the police. Further still, His Honour found that, the offenders had done something tangible to repair their wrongs. They built the victim a new and much better house. Furthermore, His Honour found that, the offenders did not cause further trouble since the incident and have pleaded guilty to the charge, expressed remorse and that they were both first time offenders.
   
8. Another case, is the decision by Lay J., in The State v. Peni Bilak.[3] There, His Honour considered the guidelines I suggested in the Andrew Yeskulu as approved by Cannings J in the Bart Kiohin Mais and Henry Kevi case. His Honour however, had difficulty following the suggestion to start with sentence of 10 years. Then on the particular facts of the case before him, His Honour found it inappropriate to start with a sentence of 10 years because the offence of arson was not a prevalent offence in the East New Britain Province and decided to impose a custodial sentence of 2 years in hard labour.
   
9. After the decision in the above cases, I imposed wholly suspended sentences in The State v. Bob Wamu & 34 Ors CR NO. 510, 539, 648, 649, 650, 651 & 652 of 2006 (Unreported and yet to be numbered decision delivered in Daru on 15/06/07). There, a whole group of men armed with bows and arrows and dressed in war dress chanting war cries attacked a whole village and burnt down their houses. The values of the house and contents burnt reached K100,000.00 All of the offenders were first time offenders and were provoked into committing the offence by the victims who did not want to resolve conflict, given rise to by pre-existing land dispute. The offenders pleaded guilty and were prepared for restitution or at least pay the damages they caused. I imposed a wholly suspended sentence of 7 years for all the adult offenders and 4 years for the only young offender amongst them on conditions of restitution and community work.
   

Sentence in Your Case

10. Fully noting the relevant facts in your case as well as the sentencing trend, I now need to determine the issue of what is an appropriate sentence or punishment for you. In order to determine that question, it is necessary for me to take into account what you said in your address on sentence, your lawyer’s submissions and the factors that are in your favour as well as those against you.
    
11. I turn firstly to your address on sentence. In your address on sentence, you said you are already guilty of committing the offence. You also said sorry for committing the offence. Further, you said you are a first time offender and that you have not been in trouble with the law before.
    
12. Your lawyer added by saying, you are 20 years old and married with two children. Family wise, your father is deceased while your mother is alive. According to the pre-sentence report, you have a good relationship with your own family. However, since moving to Tabubil and living here, you have not had any contact with your family members. Education wise, you reached grade 6. At the time of the offence, you were employed but now you have no employment due to this case against you. You hope to secure new employment once this case is finished. Finally, your lawyer concluded your background information by pointing it out that, you have been in custody for 4 months before a cash bail of K1000 with K500 surety.
    
13. At the end of outlining your personal and family background, your lawyer went on to highlight the mitigating factors against you. I now turn to a consideration of those factors and note them accordingly before arriving at a decision on your sentence. First, I accept that, you pleaded guilty to the charge. That saved the State and the Court much time and expenses of running a trial to establish your guilt.
    
14. Secondly, your lawyer pointed out and I accept that, this is your first ever offence. This is supported by the inputs by two community leaders a Mr. Ware and Inspector Alphonse Jimu. These leaders say that, you are a very pleasant person, very friendly and with Seventh Day Adventist (SDA) Christian background. You have not been a troublemaker in the township of Tabubil and that the commission of this offence is a step out of character.
    
15. Thirdly, your lawyer submitted and I accept that, you expressed remorse. I find that to be genuine, given your preparedness to pay for your crime by paying over to the victim the full amount of the estimated value of the house and its contents which the State has put at K9,000.00 and you accepted. I contrast your case with some other cases in which offenders often say sorry but do not show it in action. The Supreme Court in a number of cases as in Rudy Yekat v. The State[4] confirmed that position.
    
16. Fourthly, I note that, you surrendered yourself to police soon after committing the offence. From then on, you maintained your admission to committing the offence making police and everyone’s work a lot easier less time and money consuming. The law in terms of various decisions of the Supreme and National Courts again as in the decision in the Rudy Yekat (supra) case make it clear that a person who admits earlier on in the process of arrest and prosecution of an offender and says sorry, ought to be dealt with leniently.
    
17. Finally, I note and accept your lawyer’s submission that, you had good reason to do what you did. You were sufficiently provoked in the non-legal sense, by the conducts of the victims of your offence. Had they not interfered with your marriage relationship with your wife and, if they adhered to your pleas for them not to send your wife and children away, you could not have committed the offence.
    
18. Turning now to the factors against you, I note firstly that, you have committed an offence that is prevalent in some parts of the country. However, I cannot say it is true here in Tabubil or the Western Province. I am aware of only three or four cases so far. Given that, it is not safe to say the offence is prevalent here although it is prevalent elsewhere as in the Highlands and the Sepik Provinces.
    
19. Secondly, I note that the offence was committed almost within the township of Tabubil. There is no evidence of anything stopping you from going to any of the lawful authorities to help resolve the conflict between you and the victims. The peaceful means and forums to resolve your conflicts peacefully were within your immediate reach but you did not use them. Instead, you chose to take the law into your own hands.
    
20. Thirdly, I note that the amount of loss you brought upon the victim is great. However, the consolation is that, you are prepared to compensate him fully in the amounts put to you during your arraignment. In so noting, I also note that, your victim prefers that, you be sent to jail and that such a penalty be served in your home Province, because he believes that you do not have the means to compensate him. This runs contrary to what is before me in the form of the pre-sentence report which shows that, you do have the means to meet any orders for compensation. All that you ask for is time up until October 2008 to make the payment.
    
21. On balance, I find that the factors that operate in your favour, in particular the defector provocation from the victim in interfering with your family and the other factors and your cooperation with the police and other authorities and your good standing in the community, outweighing those against you. I further find that, your case is similar to the cases of The State v. Peni Bilak and Kiohin Mais and Henry Kevi. Accordingly, I consider a head sentence of 3 years appropriate and I impose that sentence against you.
    
22. Out of that head sentence of 3 years, I order a deduction of the 4 months pre-trial custody period. That would leave you with a balance of 2 years and 8 months. I further order that, that part of your sentence be wholly suspended on the following terms and conditions:
    

(1) You pay a total of K9,000.00 in restitution to the victim of your offence, Mr. Gilson Lam over a period of 8 months from today in the following manner:

(i) Your bail and surety totalling K1,500 be reimbursed on the provision of your respective bail receipts and be paid over to Mr. Lam in witness of police and community leaders here in Tabubil;

(ii) The balance of K7,500 be paid in equal instalments of K1000 each month commencing on 11 April 2008 or until the full amount of K7,500 is paid or in the event that you fall into arrears make one lump sum payment by or before 11 November 2008.

(iii) Each instalment or lump sum payment be made in the presence and witness of the police and community leaders in Tabubil.

(2) You immediately enter into a recognizance to keep the peace for the whole of the period of your suspended sentences;

(3) You and you wife and children move to a new or alternative accommodation away from the victim, Mr. Lam and his family.

(4) Save only to move your family if they are with the victim, you are restrained from entering or going anywhere near the victims’ residence or place of employment.

(5) The victim shall refrain forthwith from interfering into or with your marriage relationship in any manner or form.

(6) Any breach of terms (3), (4) and (5) above by either you or the victim shall amount to contempt of Court and the Police shall be at liberty to arrest the person in breach and keep him or her in custody pending the Court determining an appropriate penalty for the contempt;

(7) You provide 5 hours free physical labour each week to a public institution such as church, educational and health establishments in Tabubil as identified by the probation officer here in Tabubil.

(8) The Probation Officer here in Tabubil shall in consultation with your community leaders and heads of the public institutions shall work out your work schedule and the supervisors within one month from today and forward it to the Court for its approval;

(9) Pending approval of the work schedule, you shall immediately commence your work as of next week by rendering 5 hours of free community work to a educational, health and other public institution in Tabubil.

(10). You will all remain indoors in your house which may be in Tabubil or Kiunga between the hours of 6.00 am and 6.00 pm;

(11) You shall not leave Tabubil or Kiunga except with leave of this Court.

(12) You will allow for and permit Probation Services Officer here in Tabubil to visit your home on a regular basis to monitor your compliance of these terms and to make such recommendations, as he or she may consider appropriate either for a variation or an implementation of these terms;

(13) The Probation Officer in Tabubil shall attend on you each quarter to do a comprehensive review and report to this Court of your compliance of these terms commencing 11 June 2008;

(14) If for whatever reason you breach any of these terms, you will serve the balance of the term of your respective suspended sentences as at the time of the breach in hard labour at Ningerum or Bomana Correction Service;

(15) You will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material;

Public prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused

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^[1] (24/04/03) N2410.
^[2] (23/03/05) N2811.
^[3] (21/07/05) N2866.
^[4] (22/11/01) SC665.