State v Sakna (No 2) [2022] PGNC 381; N9920 (21 September 2022)

N9920

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1368 OF 2019

THE STATE

V

NAPOLEON SAKNA
(No 2)

Wewak: Miviri J
2022: 23^rd June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson 436 CCA – Alternative Charge Wilful & Unlawful Damage Section 444 (1) CCA – Trial – Respect for Rule of Law – Conflict – set on fire – destroyed – Prevalent Offence – Protection of Property & Life – Vehicle Burnt Down – First Offender – PSR MAR No Means to Restitution – Custodial Term Appropriate – 6 years IHL minus time on Remand.

Facts
Accused argued and fought with the victim and then set fire to his vehicle destroying it completely.

Held
PSR MAR No means.
Protection of Property & Life.
Strong Deterrent sentence
6 years IHL minus time on remand.

Cases Cited:
Public Prosecutor v Hale [1998] PGSC 26; SC564
State v Kikimbe [2016] PGNC 12; N6180
Cr 864 & 865 both of 2019 State v Krifu Neto & Jaymurray Trangui (2002) N9921
Gimble v The State [1988-89] PNGLR 271
Polau v State [2013] PGSC 6; SC1231
Kongian v State [2007] PGSC 45; SC928
State v Kauke [2013] PGNC 298; N5131
The State v Tardrew [1986] PNGLR 91

Counsel:

F. Popeu, for the State
A. Kana, for the Defendant

SENTENCE

21^st September, 2022

1. MIVIRI J: This is the sentence after conviction of Napoleon Sakna of Mindibit Angoram East Sepik Province for Arson pursuant to section 436 of the Code.
   
2. The facts sustained in the verdict are that on the 07^th of July 2018 at Kreer village Wewak, the Prisoner had no lawful excuse nor justification for setting on fire and destroying a motor vehicle, a Land rover discovery TDI White in Colour registered number WAE 406 the property of one Kevin Soopring. On that day He was at Kreer village when the subject vehicle was driven there by one Daniel Simingu. On seeing it he accompanied by friends and relatives went to it alleging it had caused the death of a relative earlier. Which culminated in confrontation between the family of Daniel Simingu. The Prisoner had a bush knife that he used to cut up the vehicle. And when Daniel Simingu tried to stop him, he was cut on the forehead. And the vehicle was pushed to the side and set on fire burning and destroying it. The Prisoner aided and abetted the offence contrary to section 7 of the Code. He contravened section 436 of the Criminal code.
   
3. Which is in the following terms, “A person who wilfully and unlawfully set fire- (a) a structure whether complete or not; or

(b) a vessel whether complete or not;

(c) a stack of cultivated vegetable produce; or

(d) a stack of mineral or vegetable fuel; or

(d) a mine, or the workings, fittings, or appliances of a mine; or

(e) an aircraft or motor vehicle,

Is guilty of an offence.

Penalty: subject to section 19 imprisonment for life.”

4. The State invoked section 436 (e) in his case. He is liable to be sentenced to the maximum imprisonment term of life years for the offence. But that is subject to the facts and circumstances of every individual case. Only the worst case of arson will draw out the maximum term of imprisonment of life years. In the case of the prisoner his facts and circumstances now do not dictate that the maximum sentence be imposed upon him. A determinate term is in view.
   
5. The defendant has been found guilty after trial. He is aged 33 years old and is a first time offender. Originally resident at Kreer from the village of Mindimbit in Angoram East Sepik Province. He is the first born from a family of six siblings. His father is deceased mother has remarried. He is educated to grade seven is literate with no further education since. He was employed with Sepik Coastal Agencies involved in removing cargo from Ships but left that work. And was unemployed at the date of the conviction. He has no cash or financial means to make good any orders for restitution in the matter. He is married with two children not in school.
   
6. These details are part of the material filed in court on the application made by defence counsel for a presentence report document 10 on the file in court filed as of the 21^st September 2022. He does not by that document evidence substance to make good the wrong against the victim. In this regard the victim has not given any feedback to the purpose of sentencing outside. It is clear that a non-custodial term with suspension will not eventuate as Prisoner does not demonstrate by the material compiled here that he will honour and discharge the orders if made to restitution. The Court is of law and any suspension must be based on material properly placed in court: Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998).
   
7. A vehicle was set on fire and destroying it a Land rover discovery TDI White in Colour registered number WAE 406 the property of one Kevin Soopring. The value of the subject vehicle is not before the Court. But it is reasonable to assume that money was lost by its destruction and for that fact a sentence imposed to reflect that personal properties must be protected with sentences to deter and punish offenders. Because one of the matters that would be amongst the many in determining an appropriate sentence would be the value of the subject property. Here subject vehicle as was the case in State v Kikimbe [2016] PGNC 12; N6180 (12 February 2016) where the vehicle truck worth K179, 098.00 was set on fire and destroyed over frustration and anger towards owner of truck, a mining company for not providing jobs for the prisoner’s people. A sentence of 8 years imprisonment was imposed.
   
8. Today in State v Krifu Neto & Jaymurray Trangui (2022) N9921, a sentence of 10 years was imposed for the arson of a dwelling house valued at K184, 506.00. with properties inside. The arson of a dwelling house will draw sentence that will be in my view higher than that of a property as here a vehicle. And this is because a dwelling house is where a person dwells. It is his abode and must be protected from all forms of criminal offences: Gimble v The State [1988-89] PNGLR 271 makes the point that whether it is a shack or castle, it is the abode of a person, a human being and must be respected and protected. Similarly, properties must also be protected and disputes have to be resolved by process of law. Invitation as here self help will encourage disorderliness and unlawful conduct. It must be stopped before it takes root. And strong determinate punitive sentences must be handed out to prevail.
   
9. I take due account that there is no value on the subject vehicle burnt down by the prisoner. Like Polau v State [2013] PGSC 6; SC1231 (8 May 2013) 5 years was imposed for a bush material house set on fire. The appellant pleaded guilty to and he was sentenced to 5 years imprisonment in hard labor of which three years was suspended. Similarly, in Kongian v State [2007] PGSC 45; SC928 (3 September 2007) the sentence of 13 and 15 years both were reduced to 3 and 5 years because they were all bush material houses burnt down. If these are guilty pleas of bush materials attracting sentence as such, then sentence here would be likened but differentiated on the basis of the value of the property.
   
10. And this consistency is seen out in State v Kauke [2013] PGNC 298; N5131 (4 April 2013) where two (2) fifteen-seater buses were set on fire and destroyed motivated by anger towards owner of buses for having affair with offender's wife. The court imposed 5 years imprisonment in hard labour considering that both buses were valued at K 45, 000.00 a total value of K 90, 000.00. And there was no means in the presentence to suspend part of the sentence.
    
11. The prisoner was at the scene of the arson and wilfully and unlawfully set fire to the vehicle. He started the assault upon the witness complainant that led eventually to the vehicle being pushed to the field and then set on fire because it was allegedly involved in the death of the father of one Naomi Momo. Prisoner led the offence which culminated in the arson of that vehicle. Again, the allegation is over death of relative pertaining to that vehicle owner. It is not a licence nor authority to encourage lawlessness in this way. Prisoner is a first offender and a trial was conducted to arrive at the verdict against the prisoner. It would therefore be a bit higher than a guilty plea to the same offence as set out above.
    
12. Here suspension of the sentence will not take place because the presentence report does not evidence the means upon which that can be made: Public Prosecutor v Hale (supra). There is really no material in the presentence report produced in each case to suspend sentence so that the resources produced available immediate will make right the wrong at the hands of the prisoners. There is no substance to make good what he has destroyed of that vehicle. In this regard The State v Tardrew [1986] PNGLR 91 is relevant and applicable because suspension is not an act in leniency, but a form of punishment that is to be served outside the prison system in the community based upon evidence that the prisoner will indeed live to the promise made in Court. There is no material upon which the orders sought will materialize. It will therefore not come the way of the prisoner in his sentence.
    
13. The aggregate after considering all above is that for the crime of Arson committed on the 07^th of July 2018 at Kreer village Wewak Napoleon Sakna of Mindimbit, Angoram, East Sepik Province is sentenced to 6 years IHL. His time on remand will be deducted he will serve the balance in jail forthwith.
    
14. The sentence of the Court is 6 years IHL minus time on remand. Balance will be served in jail forthwith.
    

Ordered Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant