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State v Warren (No 2) [2003] PGNC 99; N2418 (20 June 2003)

N2418

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 70, 165, 167, 169 & 176 of 2002

THE STATE

-V-

ROBIN WARREN,
ARON KOFA,
FRANSON KOFA,
ANREW UNDUKU POKAPIN AND
JOHN NAKON GABSIE
(No. 2)

WEWAK: KANDAKASI, J.
2003:19th and 20th June

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Arson – Burning down of 19 bush material dwelling houses in group raid early in the morning – Offence committed by a large group of men in revenge of stabbing of one person by another – Group armed with guns and other weapons – Guns used to threaten and frighten victims – Conviction after trial – First time offenders except for one – No remorse personally expressed by offenders maintaining innocence in allocutus – Offence is prevalent – Immediate custodial sentence called for – 15 and 16 years sentence imposed – Criminal Code ss.19 and 436.

Cases Cited:
The State v. Andrew Yeskulu (24/04/03) CR 1431 of 2002.
The State v. Ipu Samuel Yomb [1992] PNGLR 261.

Counsel:
Mr. P. Kaluwin for the State
Mr. G. Korei for the Accused

20th June, 2003

KANDAKASI J: You were all found guilty and convicted on 21 charges of arson contrary to s. 436 (a) and (f) of the Criminal Code. Nineteen of these are for the burning of dwelling houses. The remaining two are for the burning down of two motor vehicles.

Address on Sentence

After the decision on verdict, you requested through counsel for an adjournment to properly prepare and present your submissions on sentence. Your case was therefore adjourned to the 19th of this instant. On the 19th you all addressed the Court on sentence followed by your lawyer’s submissions. All of you maintained your innocence and said but because the Court has found you guilty, you will accept whatever sentence the Court decides to impose on you. You neither expressed any remorse nor pleaded for any leniency.

Relevant Facts

The relevant facts and the circumstances in which you committed these offences are fully set out in the judgement on verdict, delivered on the 18th of this instant. For sentencing purposes however, I note the following:

• a total of 29 houses were burnt down but you have been charged and convicted for burning down 19 houses belonging to a number of people;
• you also burnt down two motor vehicles belonging to two different people;
• you were armed with guns and other weapons, which you used to facilitate the commission of the offence;
• this was a group attack in the early hours of the morning between 5:30 and 7:00 am led by you;
• the attack was in revenge of Odilya stabbing and eventually causing the death of Wendy;
• except for one house, the rest of the houses and the 2 motor vehicles you burnt down belonged to other innocent people;
• pleas against your actions were unheeded; and
• you committed the offences not far away from the township of Wewak.
  

In addition to noting the above, I also note and take into account your respective personal backgrounds. All of you are settlers in your respective places of residence. You are originally from different places away from the township of Wewak. All of you are in your thirties or going toward it and are married with children. Except for Robin Warren, all of you have a form of employment. Aron and Franson Kofa, you are both employed by Garamut, whilst Andrew Undoku Pokapin is self-employed in a PMV ownership, driving and running business. John Nakon Gabsie is employed with the PNG Defence Force at the rank of a corporal. With the exception of Andrew Undoku Pokapin, I note that all of you have no prior conviction. So this is your first ever offence.
Submissions

In your lawyer’s submission, he argued that, what you said to the Court in your respective addresses on sentence should not be taken to mean that you are not sorry or remorseful for the offences you have committed. He went on to argue that, all of you are first time offenders except for Andrew Undoku Pokapin. The Court should therefore, he submitted impose a sentence that is not the maximum in the exercise of the Court’s discretion under s. 19 of the Criminal Code. He then referred to my own judgement in The State v. Andrew Yeskulu (unreported and yet to be numbered judgement delivered 24/04/03) CR 1431 of 2002, where I suggested some sentencing guidelines.
The State argued for an immediate custodial sentence to serve both as a personal and general deterrence against the kind of actions you have adopted. The State started its submission with the question, "when is the community going to respect the law?" It then stressed that this was a revenge attack by a group of men led by you. The reason for you doing what you did was over Odilya stabbing Wendy, which eventually led to her death. That trouble started and rested with the two of them. It did not involve the entire community on both sides. It did not therefore personally concern and affect you. Notwithstanding that, you led your community to attack the victim’s community most of whom were innocent. Their dwelling houses and motor vehicles which were brought into existence through their hard work over a period of time were reduced into ashes in a few minutes. Counsel for the State also stressed that this was not one house but all of the houses and other structures in the entire community.
He pointed to the prior conviction record against, Andrew Undoku Pokapin and argued that he should be treated differently. Similarly, he argued that John Nakon Gabsie should be treated differently because he is a member of a disciplined force but acted not like one.

The Offence

The offence of arson and its penalty is created and prescribed by s. 436 of the Criminal Code in these terms:

"436. Arson.

A person who wilfully and unlawfully sets fire to—

(a) a building or structure, whether completed or not; or
(b) a vessel, whether completed or not; or
(c) a stack of cultivated vegetable produce; or
(d) a stack of mineral or vegetable fuel; or
(e) a mine, or the workings, fittings or appliances of a mine; or

(f) an aircraft or motor vehicle,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life."

As I said in The State v. Andrew Yeskulu (supra), Parliament considered this offence to be serious. It therefore prescribed the maximum penalty of life imprisonment after considering all things. Section 19 vests the courts with discretion to impose a sentence lower than the prescribed maximum.

Once again I note, as I did in the case cited that, there is no Supreme Court judgement concerning sentence in arson cases, that might provide us with some guidance as to how an appropriate sentence in an arson case can be arrived at. But there are a number of National Court judgements. Out of all of these judgements, the case of The State v. Ipu Samuel Yomb [1992] PNGLR 261 is viewed as providing some guidance. The Court in that case took 6 factors into account. These are:

1. the deliberate or very reckless putting of lives at risk;
2. the deliberate pouring of kerosene and setting fire to the roof, knowing that people were inside;
3. the deliberate locking of the door, to prevent any escape by any of the occupants;

4. the deliberate cold-blooded planning of the offence;

5. the value of the house and its contents to the occupants; and

6. the complete lack of provocation offered to the defendant by the occupants and their children.
   

The Court started with a head sentence of 7 years. It then had that reduced to 5 years on account of the offender being a person under the age of 20, he had no prior conviction and that he pleaded guilty. These and other cases subsequent to it highlight the fact that deliberately and wilfully setting fire to a dwelling house is an aggravating factor. But even more serious is when the building or structure that is being set on fire has people inside.

On my part, I said in The State v. Andrew Yeskulu (supra) that:

... just as all the other offences have their own categories, arson cases have their own categories. Without limiting the list, I list below the kind of category a case of arson may fall under:

1. a dwelling house with people inside;
2. a dwelling house without any occupants;
3. public institutions such as schools, hospitals, or offices with occupants inside;
4. public institutions such as schools, hospitals, or offices without occupants inside; and
5. a house wind or a garden house or a run down and deteriorated or incomplete structure.
   

Then of course other factors such as the type and value of the building, whether bush material, whether the offence is committed with premeditation with the aid of substances like kerosene or other such highly flammable substances like that would be relevant factors in aggravation. Similarly, a not guilty plea resulting in a conviction and or the offender having a prior conviction are factors in aggravation. At the same time, the opposite of these factors may operate in the offender’s mitigation."

In that case, I also expressed the view that, the kind of sentences that have been imposed to date, from wholly suspended sentences to 5 years to date have failed to deter others from committing this kind of offences. Further, I noted that in this province alone there are a good number of arson cases pending on the list for trial. I have now dealt with a number of arson cases in this province alone. The more recent of which was again a case of group attack involving 9 accused persons who had acted in association with many others. Moreover, I observed that, there are many instances of people everywhere in the country with more frequency in the highlands provinces in association with tribal fights fearlessly and without hesitation, burning down a lot of public institutions and dwelling houses. Then I said:

"The sentences therefore have to be seriously increased with a view to deterring other would be offenders. Crimes such as arson are an affront to progress just as the other serious crimes such as rape, armed robbery and or murder are. That is why Parliament has prescribed the maximum of life imprisonment. But this Court has seen fit to impose sentences well below life imprisonment. I simply do not know how a mere 4 years or 5 years or worse still a wholly suspended sentence compares or comes anywhere closer to life imprisonment and or the loss and suffering such an offence brings upon its victims.

I therefore consider that a sentence for a case of arson falling in the first, second, third and fourth categories without any aggravating factor should start at a minimum of 10 years. Where there are factors in aggravation, the sentence should be increased to terms beyond that up to the maximum prescribe of life imprisonment in the more serious cases. Of course, a sentence for a case of arson falling in the last category should start at 5 years where there are no factors in aggravation. Where there are factors in aggravation, the sentence may go beyond that. Of course, in exceptional cases where there are very good mitigating factors with the support of a pre-sentence report a sentence below what is recommended may be imposed."

In expressing those views, I also said and I maintained the view that:

"... once a person is found guilty of a crime, the onus is on him to show by appropriate evidence that he should not be given the maximum prescribed sentence. This follows from my view that the presumption of innocence under the Constitution applies only up to the point when guilt or innocence is decided against an accused person. For the protection is in terms of an accused person being "presumed innocent until proven guilty according to law." Where a prisoner fails to do that, it means he has no reason to expect a sentence other than the maximum."

Now in your case, you led a group of men acting in concert and in retaliation of Wendy’s death. You burnt down 19 houses, which constitute almost the entire village, or camp of Koiruo not far from the township of Wewak, where the police and the formal justice sector is very close. You woke up a sleeping community in the early morning hours between 5:30 and 7:00 am. You were armed with weapons including guns. You used these weapons to facilitate the commission of the offence.

You denied having committed the offence. That required the State to incur the expenses of calling witness and running a trial to establish your guilt. It also meant wastage of the Court’s time. The victims were thus forced to go through the trouble of reliving the memories of your attack on them. Then once the Court found you guilty, you maintained your innocence and expressed no remorse. I do not accept your lawyer’s submission that you maintaining your innocence does not mean that you are not sorry for what you have done. Nobody else can represent another’s feelings or attitude toward something. In a criminal case, it is the offender’s personal attitude toward having committed the offence that is very important. There was nothing stopping you from expressing your remorse but you did not. In fact you said nothing about that even though you were given the opportunity to do so if you wanted to.

In the end, I find that you have absolutely nothing operating in your favour. The only exception there is the fact that all of you except for Andrew Undoku Pokapin are first time offenders. This I will have reflected in the sentence I propose to impose against him. But that aside, I note the circumstances in which you committed the offence serious and place your case in the top of the list of a serious case of arson. The factors noted against you far outweigh in my view any need for leniency on account you having no prior convictions. This therefore means there is no impediment for the Court to impose the maximum penalty of life imprisonment.

The only factors that prevent me from imposing the maximum is first, the well accepted principle that the maximum prescribe sentence in any case must be reserved for the worse kind of the offence under consideration. I am of the view that although this is a very serious case of arson, it is not one in which occupants of the house have being burnt down or dangerous substances such as kerosene and other highly flammable substances have been used. Comparatively, the facts in The State v. Ipu Samuel Yomb (supra), are more serious than the present. But that was in a case of a single offender involving only one house. In my view, the facts in this case do not make it any less serious than that case.

Secondly, I am not aware of any case in which the maximum penalty has been imposed as noted in The State v. Andrew Yeskulu (supra). So if I imposed upon you the maximum it might represent a quantum leap. But I quickly add in relation to that principle that the level of arson cases has not been gradual but have taken a quantum lead throughout the country. So the sentences must also take a quantum leap to counter that.

Considering all of the above and the fact that sentences on guilty pleas have now attracted sentences between 5 and 7 years, a sentence well above that is appropriate. At the same time, I consider that the guidelines I suggested in The State v. Andrew Yeskulu (supra) relevant. Accordingly, I will start with a sentence of 15 years in hard labour. Then I add a sentence of 1 year against Andrew Undoku Pokapin to reflect your prior conviction. This is particularly so, to demonstrate the fact that you have been to the Court before and that should have caused you to exercise some restraint and leadership against the destruction but you did not. Similarly, I add 1 more year against John Nakon Gabsie to reflect your background as a member of the discipline forces who should have exercised some restrain and leadership against the destruction but you did not. Members of the discipline forces should never ever get anywhere near committing an offence. They represent the government. Hence engaging in an activity that is illegal and contrary to any discipline force is a serious offence. It breaches the trust the government and the people place in them. Thus John Nakon Gabsie’s conduct is similar to your colleagues who burnt down public properties such as those we have witnessed in relation to the mutiny case at the Moem Barracks. It is a total disgrace to see that such offences have been committed against public property by members of the PNG Defence Force.

In the end, I order that each of you serve your respective terms of 15 years and 16 years in hard labour for each of the offences at the Boram CIS, concurrently because they arose out of the same transaction on the same day involving the same people. A Warrant of Commitment will be issued forthwith in those terms.
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Lawyers for the State: Public Prosecutor
Lawyers for the Prisoners: Public Solicitor