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State v Yomb [1992] PGLawRp 600; [1992] PNGLR 261 (12 February 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 261 - State v Ipu Samuel Yomb�

[1992] PNGLR 261

N1102

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

IPU SAMUEL YOMB

Lae

Doherty J

12 February 1992

CRIMINAL LAW - Sentence in arson offences - Matters to be considered - Burning of a building putting lives at risk more serious.

CRIMINAL LAW - Sentencing - Arson - Relevant considerations.

Facts

The accused pleaded guilty to an act of arson in setting fire to the house occupied by his sister-in-law and her family. This act was in reprisal for the ill treatment of his sister by her husband, who was the brother of the victim of the arson.

Held

Extended liability for the wrongs of a family member, although acknowledgeable by tradition when it comes to compensation payment, is not a mitigating factor in cases of this type of "pay back".

The accused was sentenced to 5 years in hard labour.

Cases Cited

Papua New Guinea cases cited

Aubuku v The State [1987] PNGLR 267.

Gimble v The State [1988-89] PNGLR 271.

State v Boas Nodai unnumbered, unpublished.

State v Else Marasmalik unnumbered, unpublished.

State v Linus Kameko unnumbered, unpublished.

State v Wangar (1991) unpublished N975.

Other case cited

R v Sangha [1988] 3 All ER 385.

Counsel

S Kesno, for the defendant.

Mirou, for The State.

12 February 1992

DOHERTY J: The defendant was indicted and pleaded guilty to one count of arson contrary to s 436 of the Criminal Code.

The incidence of this arson was a particularly bad one, as counsel for the defence has conceded.

The facts show that the householder, his wife and family were asleep in their home on 1 December 1990. It is not clear how many children were with their parents. The evidence refers to "children", making it clear there was more than one child. The list of personal effects lost (accepted as part of the evidence) shows clothes belonging to other people (including one baby), leading to an inference that there were between 2 and 5 children in the house at the time in question.

At about 3.30 am in the morning, one of the daughters woke the parents because she felt the heat coming from the roof. As soon as they woke up, they could see that the roof of the house was burning.

They tried to leave only to find that the door was locked on the outside, barring their way out. This aspect of the case is, to my mind, one of the worst aspects of this offence. Both eye witnesses, Steven Koborogi and his wife, Ester, say that they tried to open the door, but it was locked from the outside. The children were crying and screaming, the roof fire was rapidly spreading and eventually they got out by "forcing the wall made up of roofing iron and jumped out". They had hardly anything except the clothes they were wearing.

The evidence shows that the defendant had approached other people with a view to burning the house, but they had refused to participate. This indicates to me an element of pre-planning in cold blood rather than an act in the heat of anger or passion. The defendant and the victims were related by marriage, and I think I can safely conclude that the defendant knew they had children. The locking of the door from the outside indicates that he knew people were inside, although this is not stated in the record of interview, and I can make no definite finding on this point.

The crime of arson pursuant to s 436 of the Criminal Code carries with it a sentence of up to life imprisonment, subject to the provisions of s 19 of the Code.

The crime of arson, as distinguished from negligent use of a fire, provides for a wilful setting of fire to a building, vessel or other things provided for by s 436.

The Supreme Court has not set guidelines for this type of offence. Counsel have not been able to refer me to any precedent setting out guidelines, nor have I been able to trace any such precedents myself. I have not been able to find any precedent setting out guidelines in the United Kingdom jurisdictions. Such precedents would not be binding upon this Court, but I note United Kingdom decisions were considered in cases such as Aubuku v The State [1987] PNGLR 267 and Gimble v The State [1988-89] PNGLR 271.

I have considered decisions by my brother judges in arson cases. Counsel has referred me to two previous cases in this Court. In one, a defendant was given a non-custodial sentence and sentenced to a term on probation. In the other, a defendant was given a partially custodial and partially probation sentence. In both those cases, the building was empty and the defendants reacted spontaneously (or almost spontaneously) in anger to some action by other people. I said in one case (The State v Wangar) that I considered that the possibility that people were living in the house at the time when it was set on fire to be an aggravating factor.

I have considered other cases in the courts imposed by my brother judges. For example, in Kavieng in the cases of State v Boas Nodai, Judge Jalina sentenced the defendants to 4 years in hard labour for the burning of the copra drier, but on the same circuit he gave a 2-year suspended sentence to Elsie Marasmalik, a defendant who burnt her brother's house after an argument. It will be noted that there is no suggestion that anyone was in either house at the time in question. In State v Linus Kameko, Salika J sentenced 2 men to 5 years in hard labour for arson of a dwelling when the victim and his family were asleep inside. It was a reprisal for suspected sorcery.

In contrast, sentences have ranged from probationary periods to 2 years for the burning of garden houses or empty houses.

In overseas jurisdiction, the English Court of Appeal has confirmed a sentence of 30 months plus three months for burning furniture in R v Sangha [1988] 2 All ER 385. That fire spread to other parts of the dwelling where the furniture was. Overseas cases are not on all fours to Papua New Guinea cases and should only be used as an indication. There is very little in the way of organized fire brigades and fire-fighting equipment in village and rural areas, whereas in urban western areas the knowledge that fire fighting resources are available could be a factor in the mind of some accused.

I consider the following to be relevant aspects in the case before me:

N2>1.������ The deliberate or very reckless putting of lives at risk;

N2>2.������ The deliberate pouring of kerosine and setting fire to the roof, knowing that people were inside;

N2>3.������ The deliberate locking of the door, so preventing escape by the occupants;

N2>4.������ The deliberate cold-blooded planning of the offence;

N2>5.������ The value of the house and its contents to the occupants;

N2>6.������ The complete lack of provocation offered to the defendant by the occupants and their children.

On the side of the defendant, he has explained why he committed the offence. The elder brother of Ester Steven, the occupant of the house and wife of the householder, was married to the defendant's sister. Counsel has said that this sister was an older sister of the defendant. During the marriage, (which counsel says has now ended), the brother/husband "belted" the defendant's sister. Counsel has informed me that attempts were made to sort out their matrimonial problems, but to no avail. The defendant decided to burn "Ester's house" as an act of reprisal.

I have no doubt that the defendant felt very sorry for his sister, and I think this is a commendable human reaction. He looked sorry in court, but why has he chosen to take vengeance on a completely innocent party? There is no suggestion that he approached his brother-in-law in an attempt to prevent this type of behaviour towards his sister. Counsel has said he was young at the time and I accept that, but I cannot see any good reason for taking revenge on an innocent party. Extended liability for the wrongs of a family member can well be acknowledged traditionally when it comes to payment of compensation etc., but I have not been shown any good reason why it should be mitigating factor when it comes to this type of "pay back".

I accept that the defendant was young and is still young. He was about 19 at the time of the offence, he is a first offender and it is clear to this Court that he was very ashamed of what he did, and I accept that he is sorry. He admitted the offence to the police, but not initially. There is no suggestion that any recompense or restitution has been made to the victims for the loss of their dwelling and their clothes and household effects. The defendant was not arrested, and almost a year after the events, he has had plenty of time to make restitution if he was genuinely sorry for what he did.

In all the circumstances of this case, I consider a sentence of 6 to 7 years would be appropriate. Bearing in mind the defendant's age, his plea and his prior good behaviour, I reduce that 7 years to 5 years in hard labour and sentence him accordingly. I deduct the period in which he is in remand.

Lawyer for The State: Public Prosecutor.

Lawyer for the defendant: Public Solicitor.