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State v Evore [2006] PGNC 148; N3236 (23 October 2006)

N3236

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 657 OF 2004

THE STATE

-V-

SYLVESTER HEAI EVORE

Kerema: Kandakasi, J.
2006: 5, 13 and 23 October

DECISION ON SENTENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Prisoner asking for restitution orders and non custodial sentence - Means assessment and pre-sentence report required – Request and consideration of – Parents in-law prepared to assist accused with meeting restitution orders – Contribution from relatives a debt to the prisoner which he must repay - Victims not opposed to restitution – Appropriate to make restitution orders - Sections 19 and 436 of the Criminal Code.

CRIMINAL LAW - Sentence - Arson - Partial burning of bulldozer seat – Fellow villagers rescuing the bulldozer - - Guilty plea –Prior conviction - Relatives prepared to assist in restitution – Assistance by relatives is debt to the prisoner which he must repay - Victims not opposed to restitution orders – Three years part custodial and part suspended on conditions imposed – Sections 19 and 436 of the Criminal Code.

Cases cited:

The State v. Robin Warren and Others (No 2) (2003) N2418.
The State v Prodie Akoi and Steven Akoi (25/03/04) N2584.
The State v. Bart Kiohin Mais And Henry Kevi (23/03/05) N2811.
The State v. Micky John Lausi (27/03/01) N2073.
The State v. Abel Airi (28/11/00) N2007.
The State v. Dobi Ao (N0.2) (01/05/02) N2247.
The State v. Ipu Samuel Yomb [1992] PNGLR 261.
The State v. Ennie Mathew & Ors (No. 2) (29/10/03) N2563,
The State v Henny Wamahau Ilomo (01/05/03) N2420.

The State v Bart Kiohin Mais And Henry Kevi(223/03/05) N2811

The State v. Peni Bilak (21/07/05) N2866.

Counsels:

Mr. D. Mark, for the State.
Mr. M. Lunga, for the Prisoner.

23 October, 2006

1. KANDAKASI J: You pleaded guilty to a charge of arson for the partial burning of a bulldozer seat on the Lakoro village road, in the Vailala area of the Ihu District of this Province on 1 January 2004, contrary to s.436 (a) of the Criminal Code. On being satisfied of the evidentiary basis for the charge and guilty plea as per the District Court depositions, I confirmed your guilty plea and had you convicted on the charge presented against you.

Address on Sentence

2. I then invited you to address the Court before sentence and before your lawyer could make submissions on your behalf. In response to that, you said sorry for what you have done and said you would not repeat it. Thereafter you requested through your lawyer for a pre-sentence report to be provided by the probation service and for a deferral of further submissions pending that report. I granted that application. A report was eventually furnished.

3. Based on the pre-sentence report, your lawyer made submissions on your behalf, essentially arguing for a non-custodial sentence with an order for you to pay to the owner of the bulldozer, which seat you burnt and for community base sentence as an alternative to spending time in prison. In so submitting, your lawyer urged the Court to take into account your guilty plea and your personal and family backgrounds. Your personal background is that, both of your parents are alive. You have been up to grade 9 formal education and unemployed in the formal sector. You live a village life and that you are married with one 3 year old child. By way of religion, you follow the United Church. Finally, you have a prior conviction for being in possession of drugs.

4. Your lawyer then proceeded to make submissions for a fully suspended sentence of 2 years on conditions of restitution and community based sentence or alternative you be sentence up to the rising of the Court given the time you have already spent in custody. In making that submission, your lawyer drew the Court’s attention to my own decisions in The State v. Robin Warren and Others (No 2)[1] and The State v Prodie Akoi and Steven Akoi.[2] He also drew the Court’s attention to the decision of Cannings J. in the case of The State v. Bart Kiohin Mais And Henry Kevi.[3]

5. The State is not opposed to the submissions of your lawyer, provided such a sentence is on conditions. The victims prefer you replacing the seat of the bulldozer you partially burnt and have obtained a quotation for a replacement seat at K2,801.83

6. It is within the discretion of the Court to determine an appropriate sentence in every case that comes before it. A number of factors play an important part in the exercise of that discretion. These include the particular facts and or the circumstances in which an offence was committed, the antecedents of the offender, whether conviction is on a guilty plea or after a trial and the nature of the offence itself. I will thus turn to a consideration of these aspects starting with a consideration of the relevant facts.

Facts

7. On Sunday 1 January 2004, between 7:00 and 8:00 am at Lakoro village road, you climbed into the cabin of a bulldozer owned by a logging company operating in your area. Once inside the cabin, you poured diesel fuel on the seat of the bulldozer and then set it on fire. A witness raised alarm in the village about what you did. The village people came over and saw smoke and flame from the burning seat. Fortunately, the village people managed to put the fire off. The fire partially damaged the seat, which could not be repaired partially but the whole seat required replacement. Meanwhile, you ran away into the bush trying to hide. However, the village people managed to find you and apprehended you and took you to the village. Thereafter the village people went and reported you to the logging company officials and in the meantime, you managed to run away again. Unfortunately, you could not hide forever, the police came to you and arrested you following formal complaints and investigations.

8. In your record of interview with the police, you claimed that, you burnt the bulldozer over disputes concerning royalties for logging and damage to the environment. However, there is no evidence of that dispute. Indeed, the evidence is that, the village people apprehended you and reported your unlawful conduct to the owners of the bulldozer. If there was a royalty dispute and there were damages to the environment, the village people could have supported you and refrained from rescuing the bulldozer and could not have apprehended you and handed you over to the police. I therefore find that you had no good reason to burn the bulldozer. I further find that, you meant to burn the whole of the bulldozer but for the swift actions of the village people.

Appropriate Sentence

9. I maintain the view that imposing a suspended sentence is not an exercise in leniency. However, it is a form of punishment aimed at achieving one of the purposes of criminal sentencing which is rehabilitation. I also maintain the view that a community-based sentence is far more effective in appropriate cases, not only in terms of rehabilitation but also in terms of serving both as a personal and general deterrence against other would be offenders.

10. Persuaded by these considerations, I imposed wholly suspended sentences in The State v. Micky John Lausi,[4] The State v. Abel Airi[5] and The State v. Dobi Ao (N0.2)[6] and others. I have done that only in cases where there is a well balanced pre-sentence report representative and reflective of the community’s view on the kind of penalty that an offender should receive and where the victims were receptive to restitution and a non-custodial sentence.

11. In your case, the pre-sentencing and means assessment reports confirm that, you do not have any means to restitute in terms of meeting the costs of replacing the half burnt bulldozer seat in the sum of K2801.83. Only your parents in-law are prepared to assist you with an initial payment of K300.00 and the balance over a period of time. A further K500 is likely to come from your wife. There is no evidence of any of these persons, your wife and her parents causing you to commit the offence and how you are going to repay them of what they are prepared to do for you. Further, the pre-sentence does not have any input from the owners of the bulldozer. It is the victims of a crime that directly and immediately feel and face the effects of a crime against them. Unless the victims indicate a preparedness to accept restitution in terms of the full costs of replacing the seat that you partially destroyed, there can be no order for restitution and therefore suspension of either a part of or the whole of your sentence. This is consistent with the position I took in The State v Prodie Akoi and Steven Akoi (supra) and a couple of other decisions too. In these circumstances, I do not consider it appropriate that restitution and a wholly suspended sentence is an option for you at this stage.

12. Having arrived at that decision, it is now necessary for me to consider what other kind of sentence is appropriate for you. For that purposes, I will allow myself to be guided by the kind of sentence that have been imposed in arson cases. First, the offence of arson is quite a prevalent offence in the country with more of them in the Highlands and the Sepik Provinces. There has been a number of arson cases out of this province but not up to the same numbers as they are in the Highlands and Sepik Provinces.

13. The offence of arson is a very serious offence because it destroys within a matter of minutes, months if not years efforts put into the bringing into existence of houses and other structures and their contents and other properties. This has a very bad impact on the progress of our people and therefore, our nation because; it raises fears rather than security in the fruits of the hard work of the people. Given that, the community expects the courts to sternly deal with offenders like you. After duly considering all of these things, Parliament has prescribed life imprisonment as the maximum penalty for this offence under s. 436, subject to the courts’ sentencing discretion under s. 19 of the Criminal Code.

14. In The State v. Andrew Yeskulu (supra) case cited by your lawyer, I noted that there is no Supreme Court judgment providing any guidance for sentencing in arson cases. At the same time, I noted that, there are however, a number of National Court judgments. Out of all of those judgments, I noted that the case of The State v. Ipu Samuel Yomb[7] appeared to provide some guidance and I considered it in some detail. I then suggested a guideline in the following terms:

"In my view, 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."

15. At the same time, I noted that the kind of sentences that have been imposed, from wholly suspended sentences to 5 years failed to deter others from committing this kind of offences. In that context, I noted that, in the East Sepik alone, there were a good number of arson cases pending on the list for trial. I also noted that, there are many instances of people everywhere in the country, with more frequencies in the highlands provinces in association with tribal fights, fearlessly and without hesitation burning down a lot of public institutions and dwelling houses and other properties. Given that position, I expressed the view that, the sentences 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. Despite that, I noted that, this Court has seen it appropriate to impose sentences well below life imprisonment. I then said:

"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."

16. Hence, I said 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. I then recommended an increased sentence to terms beyond those suggested and up to the maximum prescribed sentence of life imprisonment in serious cases of arson. At the same time, I said, 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.

17. I decided not to apply those guidelines to the case then before me. Instead, I said that judgment should sound a warning that sentences for arsonist will increase substantially to counter the increase in the offence itself. I then determined that an appropriate sentence in that case was a wholly suspended sentence of 7 years on some strict conditions. The conditions included an order for the prisoner to rebuild the building that he burnt and replace its contents. Another order was for him to render free but supervised community services at a specified location and time. The persuasion for this sentence was amongst others, a guilty plea by a first time offender who was genuinely remorseful. In addition, the offender already took steps to rebuild the buildings and complete it with the victims approving.

18. In the subsequent cases of The State v. Ennie Mathew & Ors (No. 2),[8] The State v. Robin Warren & Ors (No.2) (supra) a case also cited by your lawyer and The State v Prodie Akoi and Steven Akoi (supra), I adopted and applied the guidelines suggested in the Andrew Yeskulu case. In the first cases, it was a case of armed tribal group attacking another group. That arose out of an old land dispute that was resolved in favour of the victims of the offence. A village councillor led the attack and commission of the offence. About 5 dwelling houses were burnt down. The prisoners pleaded not guilty, thereby necessitating a trial to establish their guilt. Opportunities given by the Court for the offenders to come up with a workable proposal in terms of a sentence aimed at restoring peace and normalcy, returned with a negative result. In the circumstances, the Court imposed sentences ranging from 11 years and 14 years depending on their respective mitigating and aggravating factors with provisions for suspension conditional on the prisoners and their tribesmen paying a specified amount of compensation within a specified period.

19. The second case was also a case of armed group attack but in retaliation of death occasioned to one of their members. This saw the burning down of nineteen dwelling houses and a motor vehicle in the early hours of the morning on the day of the offence. The offenders also denied the charges thereby necessitating a trial to establish their guilt. Most of the offenders were first time offenders. One had a prior conviction and another was a member of the PNG Defence Force. These offenders received a sentence of 16 years each and their co-offenders received 15 years in hard labour.

20. In the final case two brothers in the company of each other burnt down two dwelling houses. They used petrol to assist in the successful completion of the execution of the offence. A child in one of the houses was almost burnt, had it not been for the actions of the child’s father in taking him out. Furthermore, the houses had contents ranging from outboard motors to household furniture and utensils, the total value of which was estimated at K64,000.00. That brought the case closer in terms only of the value of properties destroyed to the Robin Waren & Others case.

21. Additionally, I found that the prisoners were both mature men. They therefore had reason to know and appreciate the consequences of their offence. They also had reason to know that, burning down of the houses would result in serious and substantial loss to the victims and yet they proceeded regardless. Further, I noted that the offence of arson is an offence that is of common occurrence throughout the country. Past sentences appear not to be deterring other would be offenders from offending, evidenced for example by the commission of the offences by you. It therefore calls for a strong deterrent sentence.

22. In the circumstances, I found the cases as falling in the first category under the Andrew Yeskulu guidelines. But weighing both the factors for and against them I found that a part custodial and part suspended sentence was appropriate. Going by the guidelines, I have suggested in the Andrew Yeskulu case, and the tariffs since then, I considered a head sentence of 10 years appropriate. Off that, I ordered the prisoners to serve 5 years in hard labour at the Vanimo Correction Service less the period they have already spent in custody awaiting their trial. As for the balance of 5 years from the head sentence, I order that to be suspended on conditions.

24. In The State v. Henny Wamahau Ilomo,[9] I adopted and applied the guidelines under the Andrew Yeskulu case. Cannings J did likewise in The State v Bart Kiohin Mais And Henry Kevi.[10] Lay J cited in his decision in the case of The State v. Peni Bilak,[11] the Andrew Yeskulu case and noted the adoption and application in the foregoing judgments. His Honour expressly had some difficulties with the suggested head sentence of 10 years because the offence of arson was not common in the East New Britain Province. His Honour was of the view that, this could mean that the past sentences in the range of 2 to 5 years were serving its intended purpose and imposed a sentence of 2 years imprisonment. With respect, I am not too sure whether that is a correct approach to a single jurisdiction such as ours as opposed to the completely different jurisdictions within a federation as in the case of the Australian States and those in the United States. My inclination is that, the approach by my brother Lay J., would be allowing for discrimination on the basis of provinces rather than approaching sentence from a stand point of the prevalence or otherwise of an offence based on the national prevailing trends and tariffs rather than on a province by province approach.

Your Sentence

25. Bearing these sentencing guidelines, trends and tariffs in mind, I now turn to a consideration of the factors for and against you in order to arrive at an appropriate sentence for you. First, I take into account your personal and family background as I outlined in the foregoing. I then note, that you pleaded guilty to a most serious offence which carries a maximum penalty of life imprisonment subject to the courts sentencing discretion under s. 19 of the Criminal Code. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the victims of your offence to incur further costs and suffer inconvenience by coming into Court and testify against you.

27. Secondly, I note that, you did not fully achieve your objective of burning down the bulldozer. You only partially burnt the seat of the bulldozer. The cost of replacing that seat is K2801. 83. However, I note also that, if it were not for the efforts of your village people, you could have achieved your ultimate purpose and the costs could have been far more.

28. Thirdly, there is no evidence of what if any negative impact this has had against your particular society and generally this province and the country. It seems what you did, did not have any significant impact against your society, perhaps due to the society’s prompt action.

29. Fourthly, you are prepared to restitute with the assistance of your wife, and her parents. In the course of your lawyer’s further submission on 13th of this instant, I indicated that, if you produce before the Court evidence of an agreement between, you on the one side and your wife and her parents on the other as to how you will repay what they may contribute toward a satisfaction of an order for restitution, as well as a clear prove of the sources of the funds to meet any restitution orders and when the payments will be made, the Court will favourably look at an order for restitution and suspension of either the whole or part of the sentence this Court eventually decides to impose against you.

30. Finally, I note that, you committed the offence against a machine on the street as opposed to dwelling house, a classroom or any such other structures. Usually, offences committed against a dwelling house or structures of public importance could make the offence an aggravated one. Also if the machine was totally, destroyed and it was beyond repair, it could have also rendered the offence you committed aggravated.

31. Against the foregoing mitigation factors, it is significant fact that arson is a very serious offence. Parliament has prescribed the maximum penalty of life imprisonment subject to the courts’ sentencing discretion under s. 19 of the Criminal Code. Sentences have been increased recently, given the prevalence of the offence in some parts of the country with little or none in other parts of the country. The effect of this offence has been highlighted in the Andrew Yeskulu, and the Prodie & Steven Akoi cases, and I need not repeat it here save one to say, it can be very destructive and devastating, sending negative signals to people wishing to help improve their living and hence the nation.

32. The other factor against you is the fact that, you used a dangerous substance, namely diesel fuel to set fire to the seat of the bulldozer. I can only repeat what I have already stated in terms of the rescue efforts. If what you set out to do was not seen by members of your village, you could have achieved your intended purpose because of the use of fuel products.

33. Finally, you are not a first time young offender. You have been in trouble with the law before. That first encounter with the law and your being on the wrong side should have taught you not to get into trouble with the law again but you did. It seems you deserve a sterner sentence to serve as personal and general deterrence and to serve as your punishment.

34. Weighing the factors for and against you, they appear to balance out, although the last factor in your aggravation seem to weigh heavily against you, particularly to achieve the objectives of punishment and deterrence. I thus consider a head sentence of 3 years is appropriate and I impose that sentence against you. Then of the head sentence of 3 years, I order a deduction of the period of 2 years, 7 months and 25 days you have already spent in custody. That leaves you with the balance of 5 months 5 days to serve in hard labour. I am prepared to have that suspended on the following conditions:

(1) you pay to the Frontier Holdings Pty Ltd, directly or through the Clerk of the Kerema District Court the sum of K2801.83 in whole or in instalments of K500.00 or more commencing at 10:00 am tomorrow until the full amount is paid;

(2) if you decide to pay amounts specified in term (1) above by instalments provide also by tomorrow a detailed repayment schedule, stating the amounts to be paid, when they will be paid and by whom;

(3) before the circuit closes tomorrow, you deliver to this Court an agreement between yourself, your wife and her parents and any other person assisting you to meet terms (1) and (2) of these conditions whereby you acknowledge such assistance as a loan which you shall agree to repay in a particular way and within a particular time frame for this Court’s endorsement.

(4) you immediately enter into a recognizance to keep the peace and be of good behaviour for a period of 5 months and 5 days as from today;

(5) you be home bound between the hours of 6:00pm and 6:00am each day;

(6) you shall reside only in your parents in-laws’ house here in Kerema town or such other places this Court may approve on your application and not leave the town of Kerema and the Gulf Province during the currency of the suspended period.

(7) any member of the Police here in Kerema or the country shall be at liberty to report and enforce any attempted or actual breach of any of the terms of the suspension of your sentence.

(8) if for whatever reason you breach any of these terms, you will serve the full suspend sentence term of 5 months and 25 days; and

(9) you will be at liberty to apply for a review and or variation of any of these terms including a lifting of any of these terms and conditions, provided there has been substantial compliance, which shall include a full compliance of terms 1, 2, 3 and 4 above.

______________________________________

The Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Prisoner

^[1] (2003) N2418.
^[2] (25/03/04) N2584.
^[3] (23/03/05) N2811.
^[4] (27/03/01) N2073.
^[5] (28/11/00) N2007.
^[6] (01/05/02) N2247.
^[7] [1992] PNGLR 261.
^[8] (29/10/03) N2563.
^[9] (01/05/03) N2420.
^[10] (223/03/05) N2811.
^[11] (21/07/05) N2866.