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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR Nos. 1301, 1302, 1303 OF 2020
THE STATE
v
DARIUS RAKA
ELIJAH GAMBU
GABRIEL MANDARO
Kimbe: Numapo J
2021: 25th August & 25th November
CRIMINAL LAW – Sentencing – Arson s. 436 Criminal Code – Guilty Plea – Aggravating and Mitigating factors – Value of property lost - Restitution and compensation – Suspended sentence with conditions.
Held:
(i) In arson cases, the peculiar nature of the offence demands that restitution and compensation is paid to replace the properties lost through the fire.
(ii) The need for restitution requires that the prisoners be given a non-custodial sentence either wholly or partially in order to make the restitution or pay the compensation. Incarceration might make it difficult for the offender to do that.
(iii) Reconciliation through restitution or payment of compensation is regarded as important in maintaining the on-going relationship between the victim and the offender in the long term.
(iv) When ordering restitution or compensation, it is imperative that the court carefully assessed the extent of the damages caused and the properties lost before making the appropriate orders for restitution.
(v) Sentence suspended wholly with conditions including orders for compensation.
Cases Cited:
State v Pianus Kiwo & Tovili Kula Cr. Nos. 1103 & 1104 of 2019
State v Calistos Kadoka & Samuel Kadoka (2017) N8454
State v Ipu Samuel Yomb [1972] PNGLR 261
State v Rebon & Ors [2007] PGNC 197; N4996
The State v Andrew Yeskulu (2003) PGNC 88; N2410
Emil Kongian & Ors v The State; SCRA No. 92 of 2003
The State v Undicki (N2019) N7839
State v Sengi (2015) N6087
The State v Bart Kiohin Mais (2005) N2811
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v William Bruce Tardrew (1986) PNGLR 91
Counsel:
N. Pare, for the State
B. Takua, for the Defence
SENTENCE
25th November, 2021
1. NUMAPO J: This is a decision on sentence. The Prisoners DARIUS RAKA, ELIJAH GAMBU and GABRIEL MANDARO all pleaded guilty to one count of Arson pursuant to section 436 (a) of the Criminal Code and were convicted accordingly.
2. The facts to which the prisoners pleaded guilty to are that; on the 10th September 2018 at Dami village, West New Britain Province they each and severally wilfully and unlawfully set fire to a dwelling house belonging to another person namely; Nick Bangau.
Section 436. Arson.
A person who wilfully and unlawfully sets fire to -
(a) A building or structure, whether completed or not;
is guilty of a crime.
Penalty: Subject to section 19, imprisonment for life.
3. The issue for consideration is; what is the appropriate sentence for this particular offence?
(i) Aggravating factors
- Use of dangerous weapons namely; guns and bushknives
- Victim was shot on the leg
- House and properties destroyed by the fire
- Properties were stolen
- Victim and his family were displaced
- Prisoners were in company of others
- Prevalence of the offence.
(ii) Mitigating factors
- No prior convictions
- First time offenders
- Pleaded guilty early
- Expressed remorse and very apologetic
- Cooperated well with the police during investigation
- Paid some compensation to the victim.
4. Counsels also referred the Court to some recent sentences on arson to show the current sentencing trend set out below:
The offenders pleaded guilty to arson. It was a revenge attack after one of their relatives was cut by the son of the victim. They set fire to 5 buildings belonging to the complainant and properties valued at K61, 387.57 were lost through arson. They were each sentenced to 4 years to be wholly suspended with conditions on compensation and restitution.
The prisoner pleaded guilty to setting fire to the victim’s permanent house in Hoskins, West New Britain Province. They were sentenced to 4 years to be wholly suspended with conditions on restitution and compensation.
The offender pleaded guilty to arson. He sentenced to 7 years which was reduced to 5 years. The court took into consideration the offender’s young age, his early guilty plea and good behaviour.
Three offenders were found guilty on arson after a trial. They were convicted and sentenced to 10 years each however, the sentence is to be suspended on the condition that each offender pay a sum of K2, 500 cash each as compensation to the victim to be paid within three months.
The offender burnt down an elementary school building built of bush materials housing three classrooms. Land dispute was the reason for burning down the building. Teaching materials were destroyed and student denied their education. The presiding judge suggested 10 years imprisonment as the starting point for burning down dwelling house or buildings housing public institutions such as schools or hospitals and the like. It was further suggested that starting point for hauswin or garden house should be 5 years.
The appellants were sentenced to a total term of between 13 and 15 years each for four counts of arson. They appealed against the conviction and sentence. Appellants argued that they were provoked which the trial judge failed to take into account. The Supreme Court held that provocation is not a defence to arson. However, the houses burnt down were not dwelling houses as they were situated in the gardens commonly referred to as garden houses. The sentences were quashed and substituted with sentences of 3 – 5 years for each offender.
This was a group attack on another village in which 54 houses were burnt down following a land dispute. The offenders were upset when the complainants failed to turn up for a scheduled mediation over a land dispute. The Court imposed a head sentence of 10 years of which 4 years were suspended on conditions. The Court could not order compensation as proper materials quantifying the losses were not available, neither in the file nor in the pre-sentence reports.
The court held that the starting point for sentencing for arson is 6 to 7 years imprisonment. The court applied the guidelines set out in re: Ipu Samuel Yomb (supra).
The prisoners pleaded guilty to arson for burning down a semi-permanent dwelling house made of corrugated iron roof and rest with bush materials. Household goods and clothes were also destroyed. Sentences of 2 years was imposed on each offender which was wholly suspended with conditions imposed. The PSR was also favourable to the prisoners.
5. The facts showed that this was a deliberate attempt on the part of the offenders to set fire on the building following a fight in the village. The victim and his family lost everything in the fire. They are now living with other relatives in another clan. Victim was also shot on his leg when he went to check on his house. He then escaped into the oil palm plantation with his two sons.
6. According to the Pre-Sentence Report (PSR) the prisoners are all self-employed and live in their village sustaining their livelihood from the sale of oil palm and other cash crops. In their allocutus, they each told the court that they are very sorry for what they did and ask the court to be lenient with them and give them probation. They have already paid compensation to the victim and his family totalling to K2,000.00 in cash which the victim had accepted. Victim has no intention to ask for further compensation however, they are willing to pay further compensation if ordered by the court. Prisoners asked that they be given a non-custodial sentence.
The Probation Officer assessed the prisoners to be of low risks to the community and recommended that they be given a non-custodial sentence.
7. Mr Takua for the defence submitted that the present case does not fall into the category of worst type offence and asked the court to consider the principle set out in Goli Golu v The State [1979] PNGLR 653. The victim and the offenders come from the same area and incarceration may not be the solution to bring peace within their community. Furthermore, compensation in the sum of K2,000.00 has been paid to the victim and his family although, the victim only requested for K500 each from each of the offenders totalling to K1, 500. The total value of the properties lost is fairly minimal.
8. Counsel submitted that the court be guided by the current sentencing trend on arson and impose a non-custodial sentence on the prisoners.
9. Mr Pare for the State submitted this was a deliberate and reckless acts by the prisoners putting lives at risk by setting fire on a dwelling house. It was fortunate that no one was in the house at the time. They set fire on the victim’s house following a fight in the village. The victim was in Kimbe town when his house was burnt down.
10. The value of the properties destroyed was put at K20,431.00 but there is no evidence including an independent assessment or valuation to substantiate the loss in monetary terms. State also admitted that the victim has accepted K2,000.00 that has been paid as compensation and intends not to ask for further compensation as stated in the PSR.
11. Mr Pare submitted that the aggravating factors outweighs the mitigating factors which calls for a sentence with a deterrent effect. A term of between 7 and 10 years would be appropriate in this case however, the court has a wider sentencing discretion under section 19 of the Criminal Code to consider a lesser sentence. Counsel further submitted that if suspended sentence is to be considered than strict conditions should also be imposed.
12. Taking into account the factual circumstances of the case, I agree with Counsels that this case does not fall under the category of worst type offence to attract the maximum penalty prescribed by law. It is trite law that maximum penalty is only reserved for the worst instances of the particular offence; (Goli Golu (supra)).
13. In arson cases, the peculiar nature of the offence demands that restitution and compensation is paid to replace the properties lost through the fire. This is considered the most appropriate form of punishment. The need for restitution requires that the offender is given a non-custodial sentence wholly or partially in order to make the restitution or pay the compensation. Incarceration might make it difficult for the offender to do that.
14. The current sentencing trend in arson cases showed an imprisonment term of between 4 to 6 years that is either suspended wholly or partially, with conditions, one of which is restitution or compensation.
15. The first priority for victims who lost their houses and properties through arson is to rebuild their lives again by building a new house to live in it. This of course, will require money and resources.
16. In State v Calistos Kadoka & Samuel Kadoka (supra), I outlined a number of considerations to be taken into account when considering sentencing in arson cases:
17. Firstly, in arson cases one of the important considerations should be the restitution of properties lost through fire in addition to any statutory penalty imposed by the court. In most cases, the victim would expect that some form of restitution or compensation is paid to replace what was lost. Imprisoning the offender without any form of restitution or compensation does not give the victim any sense of relief or justice. In some instances, the property could be lost forever especially when it is not insured hence, permanently depriving the owner of his house or property. It makes it even worse when the victim does not have any money to rebuild his house lost through fire. Restitution in my view, should be made mandatory as part of the sentence imposed to restore the victim back to his original position or at least somewhere closer to it (State v Pianus Kiwo & Tovili Kula (supra).
18. Secondly, in situations where the victim and the offender all come from same village or community like in this present case, one of the important considerations is that whatever the decision the court makes, it must be one that promote peace and harmony within the village or the community. In that regard, reconciliation through restitution or payment of compensation is regarded as important in maintaining the on-going relationship between the victim and the offender in the long term.
19. Thirdly, when ordering restitution or compensation, it is imperative that the court carefully assessed the extent of the damages caused and the properties lost before making the appropriate orders for restitution. The court should insist on getting an assessment report from an independent Valuer where appropriate to assist in quantifying the extent of the losses suffered especially in relation to permanent buildings or structures. For instance, a permanent house no doubt, will cost more than say a house built entirely of bush materials or a building made of part permanent materials and part bush materials. A dwelling house built from bush materials worth more than a house-win, for example. The Court must be on guard against those who wants to use the court to profit from their losses. Victims are only entitled to what they lost through arson to put them back to their original positions, nothing more and nothing less.
20. Finally, the offender must be given every opportunity to make restitution. It does not make sense or serve any useful purpose to incarcerate the perpetrator and in the same breath order him to make restitution or pay compensation. The opportunity to make restitution becomes difficult when the offender is in prison. In that regard, non-custodial sentence seems more appealing in arson cases. The court may also consider part custodial and part non-custodial sentence where appropriate so that the offender also spend time in prison for breaking the law. Restitution may also mean the court ordering the offender to build a new house to replace the one that was burnt down at the perpetrator’s own expense as a form of punishment. The court has a wide discretion under section 19 of the Criminal Code to consider all these sentencing options available to it
21. In the present case, I considered suspended sentence as the most appropriate form of punishment as it would promote restitution and restoration Accordingly, I adopt and apply the principle on suspended sentence enunciated in Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91.
22. I make the following orders:
(i) I sentence the Prisoners each and severally to four (4) years IHL.
(ii) I deduct one (1) year and four (4) months for the pre-trial custody period pursuant to section 3 (2) of the Criminal Justice (Sentences) Act 1986.
(iii) Prisoners are to serve the remaining balance of two (2) years and eight (8) months imprisonment.
(iv) I further order that the balance of the remaining term of imprisonment is wholly suspended on the conditions that:
- Pursuant to sections 2 and 5 of the Criminal Law (Compensation) Act 1991, I further order that the prisoners each pay a compensation of K1000 cash each and only one live pig between the prisoners, worth not less than K1000, to the victim within 3 months of the date of this Order.
- Upon payment of the compensation, the prisoners will be placed on a one (1) year probation with strict conditions under the supervision of the Probation Office.
Orders Accordingly.
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence
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