Polau v State [2013] PGSC 6; SC1231 (8 May 2013)

SC1231

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 29 OF 2012

BETWEEN

LEMEN POLAU
Appellant

AND

THE STATE
Respondent

Waigani: Mogish, Makail & Kawi, JJ
2013: 01st & 08th May

SUPREME COURT APPEAL – Appeal against sentence – Excessiveness of sentence – Sentence of 5 years imprisonment imposed – 3 years suspended – One count of arson – Setting fire to bush material dwelling house – Exercise of sentencing discretion – Whether discretion wrongly exercised – Whether identifiable errors established – Supreme Court Act – Section 22(d).

Cases cited:

William Norris -v- The State [1979] PNGLR 605
Emil Kongian & Ors -v- The State (2007) SC928

Counsel:

Mr R Raka, for Appellant
Mr R Auka, for Respondent

JUDGMENT

08th May, 2013

1. BY THE COURT: This is an appeal against sentence pursuant to section 22(d) of the Supreme Court Act. The appellant was convicted on his guilty plea on a charge of arson under section 436(a) of the Criminal Code, Ch 262. He was sentenced to a term of five years imprisonment in hard labour. Three years of that was suspended on condition that he re-built the victim's house on the victim's land and serve the balance in prison.

2. The facts on which he was convicted and sentenced are briefly stated as follows; the appellant and the victim Polon Chalau had a dispute in relation to a piece of land called Bunai on Rambutso Island in Manus Province. The appellant claimed that he owned the land because in 1977, the Local Land Court awarded it to him. The victim built a dwelling house on it without his approval. The house was made out of bush material. He made many requests to the victim to vacate the land but was unsuccessful. On 02nd December 2010, he set fire to the house.

3. The first ground of appeal alleged that the sentence was excessive and wrong because there was no evidence to support the Trial Judge's finding that the house was a dwelling house. It was submitted that in addition to there being no evidence to support the Trial Judge's finding that the house was a dwelling house, the Trial Judge was wrongly led to believe that it was a dwelling house when it was a "hut" situated on the beach with no-one in it when it was set on fire.

4. The second ground also alleged that the sentence was excessive because the Trial Judge placed more emphasis on the leadership of the appellant in the community and placed less emphasis on the mitigating factors more particularly the presence of a strong de-facto provocation arising from an on-going land dispute between the parties. It was submitted in support of this ground that the Trial Judge wrongly exercised his discretion in imposing a partly suspended sentence of five years imprisonment because he did not give enough weight to matters which favoured the appellant such as his early guilty plea, being a first offender, his past and current position of leadership in the community and the land dispute between the parties. If he had given more consideration to these mitigating factors, he would have wholly suspended the head sentence of five years imprisonment.

5. The State countered these submissions by submitting that the Trial Judge made no error. The offence was prevalent and needed a sentence that would have a deterrent effect bearing in mind that the prescribed maximum penalty for arson is life imprisonment. A term of five years imprisonment was appropriate in the circumstances especially when a dwelling house was burnt down and the appellant was a leader and was expected to be a good example to others. Finally, it was submitted that the sentence fell within the range of sentences imposed by the National Court in past cases.

6. The appeal is against the sentencing discretion of the Trial Judge. In an appeal against sentence, the appellate Court will not disturb the sentencing discretion of the Trial Judge unless it is established that the Trial Judge fell into error and the error must have the effect of vitiating the sentence. Kearney, J eloquently stated the principles in William Norris -v- The State [1979] PNGLR 605 at 612-613 as follows:

"So the question in practice on a sentence appeal is usually this – has the appellant shown that an error occurred which has the effect of vitiating the trial judge's discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion."

7. The issue is whether the appellant has shown that the Trial Judge made identifiable errors sufficient to vitiate the sentence. Arson carries a prescribed maximum penalty of life imprisonment. Under section 19 of the Criminal Code, Ch 262, the sentencing judge has discretion to impose a penalty lesser than life imprisonment. In Emil Kongian & Ors -v- The State (2007) SC928, the Supreme Court accepted that the starting point for arson is ten years imprisonment for a dwelling house or a public institution and five years imprisonment for a hauswin or garden house.

8. In this case, a sentence of five years imprisonment was imposed. Three years was suspended leaving a balance of two years for the appellant to serve. Applying the Supreme Court decision in Emil Kongian (supra) and accepting that the house was a hauswin, we consider the head sentence of five years appropriate and correct. In our view, the suspension of three years was an allowance made by the Trial Judge because of the matters operating in favour of the appellant such as early guilty plea, being a first offender, etc. However, if we accept it was a bush material dwelling house as stated in the indictment, the offence was aggravated by a number of factors. First, it was prevalent. That was the concern his Honour had and he said that the offence was prevalent not only in Manus Province but also in the country. Thus, he said and we agree that whatever the penalty he imposes must have a deterrent effect.

9. There is no dispute that in his decision, his Honour took into account the de-facto provocation that existed due to the on-going land dispute between the parties. But he said that if the appellant was unhappy with the victim building the house on the land, he should have sought redress through other processes "available under our laws to deal with such matters." Although his Honour did not elaborate on the other processes and without speculating, we gather that he was suggesting a complaint to the police to have the victim arrested and charged for illegal squatting or filing legal proceedings for possession of land. Be that as it may, the point his Honour was emphasising was that, setting fire to a house was not the way to resolve the dispute and he was not convinced that because of the on-going land dispute, he should wholly suspend the head sentence.

10. Secondly, it did not help when the appellant raised the issue of standing and leadership in the community. Standing and leadership in the community can operate either way in sentencing and in this instance, it operated against him. His Honour said that as a leader, he was supposed to be an example to the people in the community. He was not supposed to go around destroying people's property. What he did was not a good example to others and it is noted that in his decision, his Honour devoted a considerable amount of time talking about this issue. It would be fair to say his Honour placed a lot of weight on this factor and gave less consideration to the appellant's early guilty plea, being a first offender, cooperation with the police, no-pre-planning, no injury or death arising and willingness to re-build the house such that it persuaded him to impose the sentence under appeal. But his Honour was dealing with an adult and a leader. He was no ordinary villager. It was expected of him to lead by example and he failed. And so we agree with the Trial Judge that the penalty must reflect the heavy responsibility that comes with the honour and privilege of being a leader and the partly suspended sentence of five years imprisonment reflected those sentiments. We are not satisfied his Honour fell into error.

11. For the foregoing reasons, the appeal must fail. The orders are:

1. The appeal is dismissed.

2. The sentence is confirmed.

_____________________________________________

Public Prosecutor: Lawyers for Appellant
Posman Kua Aisi Lawyers: Lawyers for Respondent