State v Ame [2024] PGNC 248; N10915 (19 July 2024)

N10915

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 945 OF 2024

THE STATE

V

MAISON AME

Minz: Miviri J
2024: 10^th & 19^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson 436 CCA – Plea – Bush Material Dwelling House – Dispute Over Complainant Not Moving Out of Land – set on fire – Burnt Down – 25-Year-Old Man – First Offender – Law Into Own Hands – Defiance of Rule Of Law – Dispute Over Victim Not Moving Out Of Land – Opportunity to Make Good Loss Of House – Suspended Sentences Conditions For Reconciliation.

Facts
The Accused set fire to the bush material dwelling house of the victim over allegation that despite being paid money he did not move out of the land.

Held
Unlawful and wilful burning
Bush Material Dwelling House
First Offender.
25-year-old man
Opportunity for Restitution.
5 years IHL suspended on Conditions.

Cases Cited:
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998)
The State v Tardrew [1986] PNGLR 91.
Polau v State [2013] PGSC 6; SC1231 (8 May 2013).
Kongian v State [2007] PGSC 45; SC928 (3 September 2007).
State v Raka [2021] PGNC 513; N9327 (25 November 2021).
State v Kikob [2008] PGNC 313; N3944 (15 February 2008).
State v Warren (No 2) [2003] PGNC 99; N2418 (20 June 2003).

Counsel:
F. Popeu, for the State
D. Pepson for the Defendant

SENTENCE

19^th July 2024

1. MIVIRI J: This is the sentence of Maison Ame of Teremanda, Wabag, Enga Province who pleaded guilty that he on the 17^th January 2024 at Warakar unlawfully and wilfully set fire to a bush material dwelling house
   
2. He was arraigned that on the 17^th of January 2024 at Warakar at around 12.30pm the accused went to the dwelling house of Eskay Jess at Warakar and set fire to it burning it down completely. It was built of bush materials. The Accused alleged that he had paid money of the complainant, but he did not move out, so he set the house on fire. He had intentionally set the house on fire, and he had no lawful excuse and justification in what he did. The house was completely burnt to ashes.
   
3. His actions contravened section 436 arson reading, “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. What has come out in the section 96 Statement at Committal is that prisoner had handed K800 to the complainant for the subject land upon which she had the subject house. And prisoner says this money was paid at the Police Station to the complainant 2022 for her to remove her house. Again, Prisoner has elected to become the law unto himself. He paid and he removed the dwelling house by the fire that he set on it. This was the dwelling house of the victim complainant, and it was serious because he was deprived a house where Complainant could live. It was completely burnt down to ashes. It is now confirmed by the presentence report that has been filed that the complainant was ordered to move off the said property. And the subject order has been attached to the presentence report dated 23^rd January 2024. He has not complied hence the frustration of the prisoner in committing the offence. It would seem that the prisoner has some rights to the subject land and therefore the conduct he showed by the offence.
   
5. It is therefore not the worst offence of arson. It could have been easily the subject of civil proceedings to be able to get what he was due from complainant. A dwelling house is where a human being lays down his head for the night. It is where he draws his life from. All human beings are entitled because it is a basic human need for shelter. In the way it was burnt down to ashes is very serious. No value has been disclosed. But to deal with in this manner has been viewed seriously. Armed Robbery in a house is very serious: Gimble v The State [1988-89] PNGLR 271.
   
6. Burning down of a dwelling house is very serious and must be sanctioned by the penalty due a prisoner. The prisoner is a first offender who has pleaded guilty. He is 25 years old single man. And educated to grade 11 did not complete because of a fight. Originally from Teremanda in Wabag, Enga Province he has no employment experience in the formal sector. From the SDA Christian Faith, the subject land is a block that he purchased upon which the complainant lives. The matter came to this offence because five (5) years had lapsed without the complainant moving so the allegation.
   
7. It could have been easily resolved through the process of law. He ought to have restrained himself from the actions that he took. What he has done has landed him in jail. It is a very serious offence depicted out by the will of the legislature imposing a maximum penalty of life imprisonment. But his facts do not warrant that be imposed, but surely a determinate term of years. Sentencing is not a mathematical formular but derived ultimately from weighing out the aggravating, mitigating and any extenuating circumstances to arrive at a just proportionate due the prisoner. And that will be what will be done here.
   
8. This is a case where the evidence before the court is sufficient to fill out what was settled in Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998).
   
9. There is no value to the house in Kina. 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 I am mindful that all are from the same area. The dispute that led to the arson is over the land on which the complainant’s house was. And the prisoner will abide by the law in all his dissatisfaction. He is a first offender a good person in that community except for this offence. He has demonstrated observation of the law pleading guilty.
   
10. 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. Here is dispute where the village court has made orders in his favour. It is not as serious in comparison to 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. It will make a very big difference in the sentence to be imposed. 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.
    
11. 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 a guilty plea. It will draw a sentence comparatively same given. Because this is not a case where the lives of the persons within are deliberately put at risk warranting the penalty to 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.
    
12. Much of all these is not present here warranting a high sentence. I consider that a proportionate sentence given all would be 5 years imprisonment in hard labour which I so impose upon the prisoner forthwith for the crime of unlawfully and wilful setting fire to the dwelling house.
    
13. In the exercise of my discretion pursuant to section 19 (f) of the Criminal Code, I order that the 5 years IHL is suspended on a 5 years GBB on the condition that a customary peace reconciliation is held between the prisoner and the Complainant within 6 months as of todays date which eventuates on the 19^th January 2025. That will be witnessed by the probation officer Salome Siwi and the Arresting Officer Philemon Steven Banz Police Station who shall file a report of that into this Court through its registry here.
    
14. Should the prisoner offend this condition or any law within that period of 5 years he shall be arrested taken before the court and will serve the 5 years now suspended.
    

Ordered Accordingly,
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant