State v Neto [2022] PGNC 393; N9921 (22 September 2022)

N9921

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 864 & 865 OF 2019

THE STATE

V

KRIFU NETO & JAYMURRAY TRANGUI

Wewak: Miviri J
2022: 21^st June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson 436 CCA – Trial – permanent house – Allegation Over Sorcery – set on fire – Burnt Down K 184, 506.00 Valued – Violence on Victim – Protection of Life & Property – Respect for Rule of the Law – Prevalent – Strong Deterrent & Punitive Sentence – 10 years IHL.

Facts
The two Accused suspected victim of killing by sorcery a relative. They went to his house chased him away poured petrol lit it burning it to the ground.

Held
Respect for Rule of Law.
Violence over & above.
Protection of Life & Property.
Deterrent & Punitive sentence.
10 years IHL minus time in remand.

Cases Cited:
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Hale [1998] PGSC 26; SC564
The State v Tardrew [1986] PNGLR 91
Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
Kama v The State [2004] PGSC 32; SC740
State v Sai [2018] PGNC 229; N7309
Polau v State [2013] PGSC 6; SC1231
Kongian v State [2007] PGSC 45; SC928
State v Raka [2021] PGNC 513; N9327
State v Kikob [2008] PGNC 313; N3944
State v Warren (No 2) [2003] PGNC 99; N2418

Counsel:

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

SENTENCE

22^nd September, 2022

1. MIVIRI J: This is the Sentence of Krifu Neto and Jaymurray Trangui both of Wamayan, Yangoru Sausia, East Sepik Province who were found guilty of Arson of a dwelling house on the 24^th June 2022.
   
2. The relevant facts were that, on the 07^th of May 2018 between 5.00pm to 6.00pm at Perigo, Wewak the two Accused went to the house of Simon Ulai. They went there accusing him of practicing sorcery and causing the death of a relative recently. They were armed and tried to assault Simon Ulai who avoided and escaped. And he watched them from where he hid near the house. He saw Krifu Neto got a container of petrol assisted by Jaymurray Trangui, poured it around the house, got a dry coconut frond, lit it setting the house on fire, burning it down destroying it. The house with all that was within was valued at K 184, 506. 00 the property of Simon Ulai and others. It was unlawful and wilful act on the part of the prisoners.
   
3. Both were found guilty after trial in respect of the charge laid pursuant to 436 of Arson which read:
   

“A person who wilfully and unlawfully set fire to-

(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. This is an offence that prescribes that subject to section 19 the maximum penalty is imprisonment for life which is due the prisoners for the conviction that each has secured. It is trite that the maximum penalty is reserved for the worst offence of its kind. The facts and circumstances here do not warrant the maximum penalty of life imprisonment upon the prisoners. But it is a very serious offence when the aggravating features are scaled out with the mitigating factors. And time in jail must be served to stress that the house and dwellings of a fellow human being is one’s home. It is basic need to every human being. Because one must shelter from the elements and time is spent to curve out a home as here. Dwelling house will always have human’s resident in it because it is the dwelling of that person. And when an offence as is the case eventuates the prospect and propensity of the occupants being hurt and injured by the fire is there. The facts here depict that against Simon Ulai.
   
5. He was set upon because of an accusation that he through sorcery was responsible for the death of the relatives of the prisoners. And he suffered with the demise of his house. This was at the hands of the prisoners taking the law unto themselves to dish out for the complainant. In so doing it was within their discretion to desist but no, they opted to ensure that he was left with nothing by their conduct of violence which was over and above their plea for leniency here. They did not accord that he was a relative a neighbour who must be respected in the enjoyment of his property. He was chased out of the house with violence that almost cost his life. Because he was almost cut with the bush knife that Krifu Neto was wielding and swinging at him. Both prisoners attacked him in his own house no fault of his.
   
6. It is my view that the dwelling house must be protected because whether it is a shack or castle that is a man’s abode. It is basic to him as a human being and must be protected, Gimble v The State [1988-89] PNGLR 271 made this very clear in the various sentences in the case of armed robbery of a house which it set as a starting point of seven (7) years imprisonment. I adopt that as relevant here because this is a crime of violence perpetrated upon the dwelling house of the complainant victim Simon Ulai. It must be protected as in armed robbery with very strong and punitive sentences to deter and prevent. Accordingly, it is my view that as here taking account that the prisoners are both first offenders JayMurray Trangui aged 25 years old and Krifu Neto is 24 years both are married with wives who are expecting their first child each. Each is a first offender with no record of any convictions known to the law.
   
7. In my view the level of violence exerted will increase the sentence from the seven years which I determine as the starting point against each prisoner. Because Simon Ulai built a home for himself and his family at the cost of K 184, 506. 00 but the value of the house alone is K 160, 000.00. Which was undisputed at trial and has remained the value burnt to ashes at the hands of the prisoners. Therefore, any dispute to it at this stage of the proceedings when sentence is considered will be late in the day. As the appropriate time for the same would have been when the matter was tried. Therefore, the material that has now come by way of the presentence report by Ward Councillor Ward 10 Wewak Rural Local Level Government Robert Kreng undated does not bring any mitigation. He is not an expert valuer and is not coming at trial for assessment then. His assessment is not based on any material submitted so that there is basis upon which it is coming. He assumes and assumptions do not bring the case any further to mitigate. Accordingly, it has no basis and is not considered. There is no basis in law for its consideration or inclusion at this stage of the proceeding. The issue has been determined that the value of the subject house is K 160, 000.00. alone and is K 184, 506. 00 with what properties were inside it destroyed. And both prisoners have been convicted on that basis it will not be visited here again.
   
8. The presentence report dated the 20^th September 2022 attaches a letter dated 09^th September 2022 under hand of Trangui Family, whoever that maybe, seeking mercy in revalued payment of complainant Simon Ulai’s house. Trangui Family is not an individual although the letter is signed by a single signature for all. It is addressed to the National Court Registrar Wewak National Court and is attention to the presiding Judge. It is clear that the letter is by the family of the two prisoners Krifu Neto and Jaymurray Trangui who are challenging that the value K 184, 506. 00 is not the true value of the subject house. It is also not valued K 160, 000.00. alone and must be revalued so that they can pay that money on the revalued terms. And on that basis, each of them pay and contribute to build the house. That will not happen for the reasons set out above. Accordingly, the sentence will not be effected by this fact.
   
9. And each person Ms. Filomina Trangui primary School Teacher Tega Lutheran Primary School, Mr Nelson Hamambi, another primary school teacher Jambitanget primary school, Michelle Jerry Air Niugini Staff, Francis Trangui Police Department, Fredrick Trangui another primary school teacher Jambitanget primary school, Kingsford Senginawa Constable of Police, Japheth Jerry another police mobile Squad member, Yvonny Hamambi Secondary school Teacher Lae have each agreed to make commitment to buy certain material for the house to be built for the complainant. These are relatives of the prisoners who have opted to help the prisoners to build back the house of the victim. It is a discretionary matter in their hands. But the fact of the matter is there is no real substance and basis to the assertions that they make. It is not like a pond of money in a savings account that is readily available that will be sourced from to meet the commitment made here. All have lives of their own to live and no doubt will affect should an order be made imposing no fault of theirs in the matter.
   
10. In this regard the conviction that has been sustained here is against Krifu Neto and Jaymurray Trangui. Who must by that fact in law bear responsibility for their criminal actions breaching section 436 (a) of the Criminal Code Act. It is not the responsibility of the relatives whose names are set out above to bear responsibility for the penalty due the prisoners. They are answerable in law for the wrong that they have committed and will serve that time. What orders are made will be against them not against the relatives named above. Each relative who has given a letter to the probation report does not affect the penalty that is due the prisoners for their criminal actions. In this regard there is nothing that is forthcoming from the hands of the prisoners to right the wrong that they have committed against Simon Ulai. They both have not demonstrated individually that they will meet the commitment. Jaymurray Trangui does not have the financial means to pay for the house lost. The same is so of the prisoner Krifu Neto. Both do not evidence any means to pay back K 184, 506. 00 the value of the house together with properties lost. Let alone the sole value of the house itself K 160, 000.00.
    
11. There is really no money in the sum of K 184, 506. 00 in the pocket of the prisoners from which they can draw to build back the house of the complainant. He is now left high and dry because any orders to build back up will be not materialized as the prisoners do not have the means to realize. Even with the help of the relatives that they have pledged there is really nothing substantive to sway that orders that are made will be carried out to fulfill giving a house back to Simon Ulai. 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).
    
12. At the outset it is in their favour together that both are first offenders Kirifu Neto is originally from Wamayan, Yangoru Sausia, East Sepik Province, and resides at Perigo. JayMurray Trangui is originally also from that village district and Province. This is about all that is in their favour. The former is aged 24 years old and the latter is 25 years both are married with wives who are expecting their first child each. Each is a first offender with no record of any convictions known to the law. Both have faithfully observed the conditions of bail until conviction a period of four years since 2018. And pleaded for leniency in each case so that they can each serve the sentence outside on the condition to build back the house of the complainant. Which is K184, 506. 00 that they have asked to build back up. And both have not produced the means and resources including money from which they would carry this task out to complete. It is therefore without merit and will not sustain in their favour.
    
13. Krifu Neto is educated to grade 12 from Bamesaka Secondary School in second year at the Rev. Maru Teachers College 2022 when convicted since the 24^th June 2022. This sets out that his criminal conduct has forfeited his quest to be a teacher. He has no record of any employment history. There is no problems in his health. He is the third born of a family of five children. He has elder brother and sister who are employed working in Lae who also look after the younger two siblings.
    
14. In the case of Jaymurray Trangui he is educated to grade 12 at Mt Hagen Secondary School after which he continued to International Training school in Lae in 2017 where he did Diploma in Human Resource Management. And was in the process of seeking employment when he heard of the death of his father here. Which is the reason for the attack upon the complainant who he suspected of the death of his father through sorcery. For an educated persons both did not act in the spirit of that education to reason out and avoid what has now happened. By that fact they ought to have taken the matter to the hands of the law to resolve. It is a very serious matter when self help as here culminates in serious offences known to the law. The Court will not harbour and exercise leniency readily as there is nothing on the materials before me to defer other than what is due. Criminals who pay no heed to public authority, public safety and respect for the lives and property of all law-abiding honest citizens of society must face stern sentences to deter and to punish them and others with similar inclinations. The courts will not condone nor deal lightly with crimes of violence perpetrated against citizens who strive to live and earn honestly and contribute to the good of the town province and the country.
    
15. Because suspension of sentence is not on the basis of mercy alone, but the prisoner will rehabilitate, and it will promote general deterrence of the offender. 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. Both do not evidence any substance to make good what they have destroyed to the value of K184, 506. 00. In this regard the views by 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 material upon which the orders sought will materialize. Here prisoners must convince that they can build a house worth K184, 506. 00 for the complainant. Suspension of the sentence must be justified by the presentence report that is furnished not without: Public Prosecutor v Hale (supra).
    
16. And it is rather late to come and plea on the basis of their personal background including whether parents are together as in the case of Krifu Neto, and in the case of Jaymurray Trangui that the parents have since died. And that both have now married with young wives expecting. That they have responsibility to care for other elderly or vulnerable members of the family. These ought to have been at the forefront of their minds at the time of the offence. The sentence due under law will not be deviated by these facts: Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
    
17. What is clear is that the house of Simon Ulai aged 62 years old, originally from Warakembe village in Yangoru who had acquired land at Perigo since his mother gave birth to him there and was living there up to the 07^th of May 2018 between 5.00pm and 6.00pm was burnt to ashes by the Prisoners. And at the time it was burnt down he was in the house with his wife and six-month-old baby. There were three visitors, bubus or grandparents of the baby had come to visit. And he heard noise of boys calling out on the road moving to his house. They were calling out that it is the Ulai family they are the ones who performed sorcery and killed our uncle. It is Simon Ulai only, he is a Kan. kill him. They ran up to his house and I left the house and went down to meet them. I said boys what is it, is there something. They were all armed with one meter bush knifes. When I asked Krifu Neto threw the first bush knife at me and said, you Kan, I avoided when I stepped back. He threw another one and swore kan. Patu came at the back with other boys and he swung his bush knife at the back. I thought they will surround me now and kill me. Krifu Neto swung at me but I was trying to avoid and fell down. When this commotion was happening my wife and child and three visitors ran away. Our Baby was 6 months old sleeping on the swing, mother pulled her out and they escaped with bubu.
    
18. When I fell down, I thought that the only hope was to run into the house. Patu also followed and they chased me up to the veranda. I went into the house and closed the door. Krifu was swinging the bush knife at the door of the house trying to get into the house. When Krifu was doing that, Patu was breaking the louvres and flywire and trying to get into the house. I called out for help if anyone on the road to come and help me. The five boys who were outside got stones and were throwing them at the fibro wall to break it down and were saying, kill him, kill him. Brian Hamabi said, let him, let’s go and get petrol and come back and burn him with the house. When they left to get the petrol, I jumped down and escaped. I was thinking of my wife and child and the three visitors thinking where have they gone? My wife and child were hiding near the cemetery where there were small bushes. My wife said come here so I went to them. We hid and watched and saw if they will get the petrol and come back. Not long they came back, Krifu carried a white four litre container of fuel. He poured the petrol and broke open the flywire around the house. Other boys cut our cooking utensils set out on the bed outside.
    
19. Krifu got a coconut frond into the petrol threw it at the back of the house and set it on fire. Patu got another one threw it in front of the house. I told my wife we have seen it let us run away. The Fire lit up and they said if he is in the house, he will come out. He is not in the house. Search him in the bushes he must be there and kill him. My wife and baby, I told them they will not hurt you so my wife and baby followed road. I continued along the bush. They went out to Peter Ulai’s house and assaulted him unconscious. They went to his wife’s house cut up the utensils and burned down the house. I hid in the bush I was afraid of my life.
    
20. Given this background both prisoners have since being granted bail for the four years up to today, lifted no finger to make good the wrong that they have committed against Simon Ulai. To come at the eleventh hour when the sentence is dished to plea as here is not real attempt to replenish what they have destroyed. It is a last-minute hatch to avoid the full force of the law. What is contained in the presentence report has no real substance but haste to avoid the full force of the law upon them for the violent crime that they have both committed. Both have even gone to extreme to get a unnamed relative within the Court to come out and dispute the veracity of the value of the subject property. But at trial represented by counsel lifted no finger to bring that to the eye and hearing of the Court. It is late to assert the value when the evidence has led to the determination and now the penalty due. What is now before the court from the presentence report is contemptuous and challenges the findings and the determination of the Court. Rather than point to resources to make good the wrong, reasons are perpetrated as basis why the decision of the court was wrong. That is not the way to bring restitution because firstly the decision of the Court must be accepted, and substance produced from which restitution will be made to compensate the victim. That is not the case here therefore the presentence report does not mitigate the sentence due the prisoners both.
    
21. Any plea for leniency is extinguished because where the crime is exerted committed with determination as here, it must be returned that the rule of the law is supreme and respect must be accorded it. No mercy was accorded Simon Ulai by both prisoners who were accompanied by others. And the supreme Court has imposed that crimes of violence draw stiff and deterrent penalties: Kama v The State [ 2004] PGSC 32; SC740 (1 April 2004); State v Sai [2018] PGNC 229; N7309 (20 June 2018). Twenty-five (25) years imprisonment was confirmed for murder committed in the course of an armed robbery and the appeal was dismissed. Here is a crime of violence perpetrated on a dwelling house of the victim and he is literally chased out with violence out of his house with his wife and baby before the house is set on fire. He is in the house when prisoners go out and return with the means to burn down the house. Through grace the victim has survived to tell.
    
22. In Polau v State [2013] PGSC 6; SC1231 (8 May 2013) the appellant pleaded guilty to setting fire upon a bush material dwelling that was burnt down. He was sentenced to 5 years imprisonment in hard labor of which three years was suspended. And the court considered the prevailing dispute over the subject land that led to the arson. But it was not justified on that basis and was prevalent, hence the sentence passed. He was a first offender and had pleaded guilty and that was warranted by the suspension of the sentence. There was no error, and the appeal was dismissed, and the sentence was confirmed. That is not the situation here. Nor is it the situation in Kongian v State [2007] PGSC 45; SC928 (3 September 2007) because in both these cases the houses are hauswin made from bush materials which is not the case here. So, a reduction of the sentence from 13 and 15 years to 3 and 5 years is in order there. Here it would not be given the house is valued at K 184, 506.00. Further the case of State v Raka [2021] PGNC 513; N9327 (25 November 2021) facts do not par out with the present set of facts and circumstances so that sentence is considerate here. A dwelling house was set on fire culmination of fighting with K20, 000.00 worth of properties destroyed. That is not the case here. And therefore, that case is not applicable here in the sentence to be passed.
    
23. In State v Kikob [2008] PGNC 313; N3944 (15 February 2008) 5 and 8 years IHL were imposed upon the prisoners with conditions for suspension who set fire to bush material dwelling houses and a kitchen house of the victim. Both pleaded guilty to the arson. This is not a guilty plea and is a trial on a house valued at K 184, 506.00. with properties inside. It will draw a higher sentence given. And where the lives of the occupants of the house are deliberately put at risk the penalties ought to be reflect including where the level of violence exerted is high the sentence must reflect that fact, State v Warren (No 2) [2003] PGNC 99; N2418 (20 June 2003), 15 and 16 years were imposed upon the prisoners after trial for a raid where 15 houses were burnt down by men who were armed with guns and other weapons acting in revenge for the stabbing of one person by another. They were first offenders.
    
24. Here is violence that has culminated in the burning down of the house of the victim complainant over an allegation of sorcery. And it has been by the prisoners armed with bush knives and accompanied by others who went to threatened and assaulted him almost injuring and maiming had it not been for his defensive evasion. Taking account of all set out above the lowest sentence due is 8 years imprisonment and the highest due is 16 years imprisonment. This is not a bush material house and the value of the house is not below K 20, 000.00. In fact, it is valued at K 184, 506.00. with properties inside it. And a trial has been run to come to the verdict against both prisoners. There is no substance to restitution by the prisoners each has no money no means to restitution of the victim complainant. He is living in a tent now at date of this sentence. For the four years since and after the commission of the offence no attempt was made at restitution by each of the prisoners or their immediate family who have poured in now in the presentence report with no real substance to restitution. This is one house valued at K 184, 506.00 and 15 bush material houses were burnt down drawing 16 years imprisonment in Warren (No 2) supra. Protection of homeowners and their homes from crimes of violence have been stressed in Public Prosecutor v Hale (supra) where 10 years imprisonment was envisaged where it was committed at night time. Here it was in the afternoon going to late and hence in my view will draw similar. The starting point here would be 10 years imprisonment going to the highest of 16 years imprisonment. Which will be justified with the violence that is exerted in the commission of the offence. Both prisoners are first offenders with a good record since and having been educated to an extent where they will fit back into society after service of time in jail.
    
25. The aggregate given all in my view is that for the crime of Arson pursuant to section 436 (a) of the Criminal Code committed upon Simon Ulai on the 07^th of May 2018 between 5.00pm to 6.00pm at Perigo, Wewak the prisoners Krifu Neto and Jaymurray Trangui are hereby sentenced to 10 years imprisonment IHL. Time on remand is deducted forthwith. Both will serve the remainder IHL in jail.
    

Ordered Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant