Kongian v State [2007] PGSC 45; SC928 (3 September 2007)

SC928

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 92 0F 2003

BETWEEN

EMIL KONGIAN, BASIL SINGAWI, DENNIS NOPI,
FREDDY KAM, HENNI MATHEW, JACK KAM,
JEFFREY WINJAT AND ROGER GISA
Appellants

AND

THE STATE
Respondent

Wewak: Jalina J, Mogish J, Cannings J
2006: 26 April,
2007: 3 September

CRIMINAL LAW – indictable offences – arson – burning down of dwelling houses – group raid – appeals against convictions and sentences.

CRIMINAL LAW – indictable offences – unlawful deprivation of liberty – appeals against convictions and sentences.

CRIMINAL LAW – sentencing – need to follow well established principles when determining whether sentences to be served concurrently or cumulatively.

The National Court convicted the appellants of four counts of arson and one count of deprivation of liberty. They were sentenced to total terms of imprisonment of between 13 and 15 years each. They appealed against conviction and sentence. They argued (1) as to the arson convictions, that the trial judge failed to take into account that they were provoked; (2) as to the deprivation of liberty convictions, that the guilty finding was against the weight of the evidence; and (3) as to the sentences, that they were excessive.

Held:

(1) Provocation is not a defence to arson and the trial judge made no error of law in convicting the appellants.

(2) A trial judge is in the best position to weigh the evidence. Though there was a greater quantity of evidence in favour of the accused, the trial judge was entitled to enter a conviction for unlawful deprivation of liberty based on acceptance of the evidence of the complainant. The trial judge made no error of law in convicting the appellants.

(3) The trial judge made identifiable errors when exercising discretion as to sentence, concerning:

• the head sentences for arson;
• the determination that the arson offences be sentenced cumulatively;
• the determination that the unlawful deprivation of liberty sentences be served cumulatively to the arson sentences; and
• application of the totality principle.
  

(4) Such errors had the effect of vitiating the sentences.

(5) Accordingly, the appeals against the convictions were dismissed but the appeals against sentences were allowed. The sentences passed by the National Court are quashed and substituted with sentences of three to five years for each offender.

Cases cited
The following cases are cited in the judgment:
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
The State v Andrew Yeskulu (2003) N2410
The State v Enni Mathew and Others (2003) N2563
The State v Inawai Moroi [1981] PNGLR 132
The State v Robin Warren and Others (2003) N2418
William Norris v The State [1979] PNGLR 605

APPEALS
These were appeals against conviction and sentence for arson and unlawful deprivation of liberty.

Counsel
E Kongian, in person, for himself and other appellants
P Kaluwin, for the respondent

28 June, 2007

1. BY THE COURT: This is an appeal against conviction and sentence by the National Court of eight men from Mamari village, East Sepik Province. They were jointly tried and convicted of four counts of arson and one count of unlawful deprivation of liberty. There was another man, Leonard Mambu, who was tried, convicted and sentenced with them. He was also an appellant but has escaped from custody and we have dismissed his appeal.

2. The arson convictions were for burning down four dwelling houses at a place called Kumbimeri. The houses belonged to people from Sangriman village, about 6 km from Mamari. The other conviction was for unlawfully detaining a young Sangriman man, Damien Dombi, against his will. The trial judge found that all offences were committed on 2 October 2001, following ongoing land disputes and ill-will between the people of Mamari and Sangriman villages.

3. In addition to the four arson charges of which they were convicted, the appellants were indicted on eight other arson charges relating to school classrooms, dormitories and teachers houses. They were acquitted of those eight charges.

4. They were convicted after a four-day trial in June 2003 and sentenced in October 2003. They were sentenced to total terms of imprisonment of between 13 and 15 years each, depending on their degree of involvement, their status in the community and their age.

5. On 27 November 2003 they each gave notice of an appeal. That was within the 40-day period permitted by Section 29(1) of the Supreme Court Act. We are satisfied that the appeal is properly before the court.

THE GROUNDS OF APPEAL

6. There are three grounds of appeal. The first two are against the convictions. The last is against the sentences. The appellants argue (1) as to the arson convictions, that the trial judge failed to take into account that they were provoked; (2) as to the deprivation of liberty convictions, that the guilty finding was against the weight of the evidence; and (3) as to the sentences, that they were excessive.

7. The issues we must determine therefore are:

(1) Did the trial judge err in entering any of the convictions for arson?

(2) Did the trial judge err in entering convictions for unlawful deprivation of liberty?

(3) Are the sentences excessive?

DID THE TRIAL JUDGE ERR IN ENTERING ANY OF THE CONVICTIONS FOR ARSON?

8. The appellants admitted at the trial that they had, in fact, attacked Kumbimeri and burned down a number of garden houses and a hauswin belonging to people from Sangriman. They each gave evidence that the reason for doing that was that they were provoked by a Sangriman man, Otto Simon, who was observed making his garden on the right side of the Krosaameri River, contrary to a Local Land Court decision. Ownership of the land in their area had been the subject of ongoing disputes over a number of years and Otto Simon was breaking the government’s decision by his actions. Leonard Mambu (the appellant who has escaped) had a fight with Otto Simon, then Leonard went back to Mamari, mobilised a group of villagers including the appellants and staged a raid on Kumbimeri. The appellants admitted at the trial that they were armed with bushknives and sticks but not firearms.

9. The appellants now argue that the trial judge committed an error of law by taking no account of the fact that they were provoked by Otto Simon’s actions into raiding Kumbimeri and burning down the garden houses and hauswin.

10. We reject this submission as provocation is not a defence to arson. For provocation to be a defence to any offence, the defence must be expressly provided by the Criminal Code (The State v Inawai Moroi [1981] PNGLR 132). Examples are Sections 266 and 267, which provide that a person is not criminally responsible for an assault committed on a person who gives him provocation. The effect of these provisions is that the provocative act must be done against the person charged. The defence does not operate if the provocative act is done against the accused’s property, as distinct from his person. This means that there can be no defence of provocation if a person is charged with arson. However, as we point out below, provocation is something that can be taken into account as a mitigating factor.

11. The offence of which the appellants were convicted is created by Section 436 of the Criminal Code, which states:

A person who wilfully and unlawfully sets fire to ... a building or structure, whether completed or not ... is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

12. There are four elements of the offence:

• setting fire to;
• a building or structure;
• wilfully; and
• unlawfully.
  

13. There was clear evidence in support of the first three elements. The only issue of any substance the trial judge had to determine was whether the appellants acted unlawfully, ie without any lawful justification or excuse. The appellants’ actions could have been excused if they owned the land or the houses standing on the land or if they had the consent of the landowners to burn them down. The trial judge heard evidence about ownership of this land. There was a Local Land Court decision confirming that the land did not belong to the appellants. It had been awarded to the Sangriman people. The appellants did not have the consent of the owners to burn down the houses. Their actions were therefore unlawful. The fact that they were provoked by Otto Simon was not a defence.

14. The trial judge therefore made no error of law in convicting each of the appellants of four counts of arson.

DID THE TRIAL JUDGE ERR IN ENTERING CONVICTIONS FOR UNLAWFUL DEPRIVATION OF LIBERTY?

15. The appellants argue that their convictions for unlawfully depriving a year 7 school student, Damien Dombi, of his liberty, were against the weight of the evidence. Damien was the only person who gave direct evidence of this alleged abduction.

16. Damien said that he was taken as a prisoner. They held him up, tackled him, put him into a motor canoe and repeatedly hit him until they reached Mamari. He was imprisoned there for two weeks, blindfolded and had his hands and legs tied, before the Wewak Police rescued him and took him back to his village.

17. The appellants argued that the police officer who gave evidence at the trial about the alleged rescue operation, Sergeant Patrick Wallace, was not in a position to give evidence of what actually happened.

18. By contrast the defence evidence at the trial came from each of the appellants. They each testified that they did not abduct Damien Dombi. Damien was frightened and he had no way to escape to so he went with them. Leonard Mambu gave evidence that when he originally fought with Otto Simon, Damien was on his (Leonard’s) side. Dombi’s mother is from Mamari. When Damien went back with the group to Mamari he stayed with his uncle, Jeffrey Winjat, who looked after him. Damien was not assaulted. Throughout his stay, he was moving around freely in the village and the community looked after him.

19. We consider that a trial judge is usually in the best position to weigh the evidence adduced at trial. Though there was a greater quantity of evidence in favour of the accused, the trial judge was entitled to enter a conviction for unlawful deprivation of liberty based on his acceptance of the evidence of the complainant.

20. The trial judge found that:

• Leonard Mambu was evasive when he was asked why Damien would give evidence against the accused;
• Freddy Kam was also evasive;
• Jack Kam gave inconsistent evidence about the number of people who went to Kumbimeri;
• Jeffrey Winjat gave inconsistent evidence about what was said to Damien;
• Basil Singawi was evasive;
• Emil Kongian was evasive;
• Roger Gisa’s evidence was inconsistent with the others as he said he did not see Damien at Mamari;
• Dennis Nopi's evidence was inconsistent with the others as he said that Damien had no way of escaping so he surrendered;
• it did not make sense that the Mamari community would look after Damien as he was from Sangriman and therefore an enemy;
• it was illogical to say that Damien was free to do as he pleased at Mamari but did not go back to his own village the next day or soon thereafter;
• there was no good explanation, if the defence evidence were true, as to why Damien would give such strong evidence against the accused;
• the demeanour of each of the accused did not give the impression that they were truthful witnesses.
  

21. We find nothing irregular in the way that the trial judge concluded that the accused persons were not reliable witnesses regarding this aspect of the case. His Honour was entitled to reject their evidence and prefer the evidence of the complainant, Damien Dombi. Sergeant Wallace’s evidence about mounting a rescue mission, the condition in which he found Damien and what happened when he took Damien to Sangriman corroborated Damien’s evidence.

22. The trial judge made no error of law in convicting the appellants.

ARE THE SENTENCES EXCESSIVE?

The judgment on sentence

23. The trial judge published a 15-page judgment on sentence (The State v Enni Mathew and Others (2003) N2563).

24. The maximum penalty for arson is life imprisonment. His Honour said that cumulative sentences of about 12 years imprisonment were warranted for each of the four arson charges, being a total of 48 years imprisonment. However, since such sentences would be crushing, under the totality principle he imposed a sentence of 12 years for the four arson charges for five of the offenders. Two of them were given 14 years each; Leonard Mambu because he was the ringleader and Enni Mathew because he was a local government councillor, someone with a special duty to uphold the law. Two were given slightly less, 11 years, as they were aged only 19 or 20 at the time.

25. As for the unlawful deprivation of liberty convictions his Honour noted that under Section 355 of the Criminal Code the maximum penalty was three years imprisonment. Seven offenders were given one year, two months. The same two given the highest sentences for arson were for the same reasons given higher sentences of one year, six months each.

26. The arson sentences and the unlawful deprivation of liberty sentences were made cumulative, as shown in the table below.

NAME	ARSON	UDL	TOTAL
Leonard Mambu	14 years	1 year 6 months	15 years 6 months
Heni Mathew	14 years	1 year 6 months	15 years 6 months
Dennis Nopi	11 years	1 year 2 months	12 years 2 months
Roger Gisa	11 years	1 year 2 months	12 years 2 months
Emil Kongian	12 years	1 year 2 months	13 years 2 months
Freddy Kam	12 years	1 year 2 months	13 years 2 months
Jeffrey Winjat	12 years	1 year 2 months	13 years 2 months
Basil Singawi	12 years	1 year 2 months	13 years 2 months
Jack Kam	12 years	1 year 2 months	13 years 2 months

27. Each sentence was subject to the proviso that if the Mamari people paid K5,000.00 compensation to the Sangriman people within 12 months after the date of sentence, half of the total sentence would be suspended. The amount of compensation comprised K900.00 for the unlawful deprivation of Damien Dombi’s liberty and K4,100.00 for the destruction of dwelling houses.

The arson sentences

28. In arriving at the sentences of 11 to 14 years imprisonment for arson, the trial judge referred to his judgment in The State v Andrew Yeskulu (2003) N2241, in which he used a starting point of 10 years imprisonment for burning down a dwelling house or public institution such as a school or hospital. If the structure was a hauswin or garden house or was run down or incomplete the starting point should be five years.

29. His Honour said that this case involved burning down of dwelling houses so the starting point was ten years. He emphasised that the maximum was life imprisonment, which reflected the seriousness of the offence, yet the National Court had got into the practice of passing sentences of only four or five years, sometimes wholly suspended. His Honour indicated it was time that the court got serious about arson, as the offence was far too prevalent especially in the Highlands and East Sepik Provinces where people were taking the law into their own hands as a way of dealing with tribal or village disputes.

30. His Honour identified the following aggravating factors:

• the offenders acted in concert, deliberately setting out to destroy houses and property belonging to the Sangriman people;
• they acted in contempt of the decision of the Local Land Court which had awarded the disputed land to the Sangriman people who had made gardens and constructed buildings on the land;
• they failed to take the opportunity provided by the period between the dates of conviction and sentence, to make peace with the Sangriman people and pay compensation;
• they pleaded not guilty, causing great expense to the State;
• they were all of sound mind and aware that what they were doing was wrong and unlawful.
  

30. His Honour identified the following mitigating factors:

• they were first-time offenders;
• no one was inside the buildings when they burned them down;
• they did not use a dangerous substance such as kerosene to execute the offences;
• they did not carry firearms.
  

31. His Honour said that their expressions of remorse in allocutus did not operate in their favour as the remorse was not accompanied by anything tangible. They had pleaded not guilty, forcing the victims to come into court and relive the bad memories inflicted on them. The remorse came too late and meant nothing.

32. His Honour compared this case with his judgment in another Wewak arson case, The State v Robin Warren and Others (2003) N2418. (Note that appeals against convictions and sentences in that case are pending). It was a group attack by one village on another resulting in destruction of 19 houses and a motor vehicle. The attack was in retaliation for the killing of one of the offenders’ fellow villagers by a member of the village that was attacked. Sentences were 15 or 16 years for each offender.

33. That was a more serious case because of the number of houses destroyed.

34. However, because the aggravating factors outweighed the mitigating factors in the present case, sentences above the starting point of 10 years were warranted. That is how his Honour arrived at a standard sentence of 12 years, which, as explained earlier, was lifted in two instances to 14 years and lowered in two other instances to 11 years.

The unlawful deprivation of liberty sentences

35. His Honour noted that this is a serious offence involving breach of the victim’s right to liberty under Section 42 of the Constitution. As for a starting point his Honour suggested that a simple deprivation of liberty deserves a sentence of a few months to a year. If violence is involved, the maximum of three years could easily be imposed.

36. In this case violence was involved. The offenders injured the victim during both his capture and the time he was detained at Mamari. His Honour imposed a standard sentence of 14 months each, lifted in two instances to 18 months each.

Approach to determining whether the sentences were excessive

37. Our task in determining an appeal against sentence is first to ascertain whether the trial judge made any identifiable errors of law. If yes, we must assess whether the errors invalidate exercise of the judge’s discretion. If yes, we are obliged to quash the sentence and pass a substitute sentence. If there are no identifiable errors, our next task is to assess whether the sentence is obviously excessive. If yes, that is also a vitiating error and we are obliged to quash the sentence and pass a substitute sentence. (William Norris v The State [1979] PNGLR 605.)

Comments on the trial judge’s approach

38. We have found no errors in the exercise of the trial judge’s discretion as to the following matters:

• variation of the head sentences for arson according to the offender’s degree of involvement in the crimes, his status in the community and his age;
  
• determination of the head sentences for the unlawful deprivation of liberty offences.
  

39. The approach his Honour took to those issues was within the scope of his sentencing discretion, fair and reasonable.

40. However, we respectfully consider that his Honour erred in the following aspects of the exercise of discretion as to sentence:

• the head sentences for arson;
  
• the determination that the four arson offences be sentenced cumulatively;
  
• the determination that the unlawful deprivation of liberty sentences be served cumulatively to the arson sentences;
  
• application of the totality principle.
  

Head sentences for arson

41. We agree with the trial judge that a proper starting point when sentencing an offender for arson is ten years for a dwelling house or a public institution and five years for a hauswin or a garden house.

42. We also agree with most of the aggravating factors his Honour highlighted. The offenders acted deliberately in concert. They were contemptuous of a court order. They failed to take the opportunity to make peace or pay compensation. They were of sound mind and knew what they were doing.

43. His Honour also properly identified as mitigating factors that they were first-time offenders, that no one was inside the buildings, that they did not use a dangerous substance and that they did not carry firearms.

44. However, we consider, with respect, that his Honour made four identifiable errors.

45. First, his Honour categorised the buildings burned down as dwelling houses, which connotes that they were somebody’s permanent home, when the evidence was that they were garden or transit houses made of bush materials, of little economic value, used by people on a temporary basis when they are working the gardens at Kumbimeri. We consider that the starting point should have been five years, not ten.

46. Secondly, his Honour sentenced the offenders as if they had pleaded not guilty but failed to take into account all the circumstances in which the pleas were entered and the admissions made by the offenders. They faced 12 arson charges and were acquitted of eight, suggesting that they acted entirely reasonably and within their rights by pleading not guilty. The convictions against them were facilitated by their own admissions, given in sworn evidence, which was tantamount to pleading guilty. The trial judge gave them no credit for doing that, which we think his Honour was duty bound to do.

47. Thirdly, his Honour failed to take account of the de facto provocation constituted by evidence of Otto Simon gardening on Mamari land on the right side of the Krosaameri River and the fight that ensued. That was the motivation for the raid on Kumbimeri. It was, as we have already explained, not a defence, but it was a mitigating factor that deserved some consideration.

48. Finally, we consider that his Honour’s complete rejection of the expressions of remorse was harsh. Given the admissions the offenders made in the course of the trial, their remorse should have been accepted as genuine and regarded as a mitigating factor.

49. We consider, with respect, that the effect of those errors is to invalidate exercise of the learned trial judge’s discretion. We will therefore quash the sentences for arson and pass substitute, lower, sentences. We consider that the errors were serious and that each sentence should be substantially reduced. The standard sentence should be four years, increased to five years in the case of the councillor, Henni Mathew, and reduced to three years in the case of the younger offenders, Dennis Nopi and Roger Gisa.

Whether the four arson offences should be sentenced concurrently or cumulatively

50. The trial judge had discretion to impose concurrent or cumulative sentences. However, that discretion had to be exercised in accordance with well established principles. In Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 the Supreme Court held that in deciding whether sentences should be made concurrent or cumulative the court should be guided by the following principles:

(i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii) Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii) When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

51. In the present case the four arson offences were committed in the course of a single transaction. Given the drafting of the indictments, the victims were arguably different but in all the circumstances the offences were very similar in character. Accordingly, all the arson sentences should, with respect, have been made concurrent.

Whether arson and unlawful deprivation of liberty sentences cumulative or concurrent

52. We respectfully consider that the learned trial judge did not apply the established principles correctly when determining this issue. The offences of arson and abduction arose out of the same set of circumstances and therefore the sentences should have been concurrent.

Totality principle

53. We consider that the trial judge fell into error by applying the totality principle only to the arson sentences. In order to comply with the approach set out in Kerua’s case, the totality principle should have been applied after arriving at appropriate head sentences for all offences and deciding whether they were concurrent or cumulative.

Conditions of suspended sentences

54. We agree with his Honour’s decision to suspend half of each sentence on condition that K5,000.00 be paid. However, in the circumstances, we will vary the conditions of suspension to lengthen the period within which proof of payment is required, to the date of hearing of this appeal.

Summary of effect of errors

55. We reiterate that we have detected identifiable errors in:

• the head sentences for arson;
• the determination that the arson offences be sentenced cumulatively;
• the determination that the unlawful deprivation of liberty sentences be served cumulatively to the arson sentences; and
• application of the totality principle.
  

56. We have already noted, in relation to the arson sentences, that the effect of those errors is to invalidate exercise of the learned trial judge’s discretion as to those sentences. We have therefore decided to quash the sentences for arson and pass substitute, lower, sentences.

57. The error in the determination that the arson sentences be sentenced cumulatively has no flow-on effect. However, the opposite is the case with the error in the determination that the unlawful deprivation of liberty sentences be served cumulatively to the arson sentences. We consider that that error was serious and that each sentence should be served concurrently.

58. The error in application of the totality principle does not have any flow-on effect.

59. The result, by way of example in relation to Heni Mathew, is as follows:

• the head sentence for each of the four arson convictions is 5 years, resulting in a total potential sentence of 20 years;
  
• the four arson sentences should be served concurrently, so the effective sentence for the four arson offences is 5 years;
  
• the head sentence for the unlawful deprivation of liberty offence is 1 year, 6 months, resulting in a total potential sentence of 6 years 6 months; however, the arson and unlawful deprivation of liberty sentences should be served concurrently, so the total sentence remains 5 years;
  
• by applying the totality principle, we consider that 5 years is a just and appropriate sentence in view of the totality of the criminal conduct involved, and that will be the substitute sentence that we will impose.
  

60. We have adopted the same process of reasoning in relation to the other seven appellants.

JUDGMENT

61. We will therefore make the following orders:

(1) the appeals against conviction for arson and unlawful deprivation of liberty are dismissed;

(2) the sentences imposed by the National Court are quashed and substituted with concurrent sentences as shown in the following table, half of each total sentence being suspended on condition that the offenders keep the peace and be of good behaviour and on evidence, presented to the National Court or a Judge of the Supreme Court, that K5,000.00 compensation has been paid by the Mamari people to the Sangriman people prior to the date of hearing of this appeal, 26 April 2006:

NAME	ARSON	UDL	TOTAL
Heni Mathew	5 years	1 year 6 months	5 years
Dennis Nopi	3 years	1 year 2 months	3 years
Roger Gisa	3 years	1 year 2 months	3 years
Emil Kongian	4 years	1 year 2 months	4 years
Freddy Kam	4 years	1 year 2 months	4 years
Jeffrey Winjat	4 years	1 year 2 months	4 years
Basil Singawi	4 years	1 year 2 months	4 years
Jack Kam	4 years	1 year 2 months	4 years

(3) the warrants of commitment issued by the National Court are quashed and fresh warrants of commitment reflecting the new sentences will be issued in substitution for them.

Judgment accordingly.

Appellant in Person
Public Prosecutor: Lawyer for the respondent