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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
CR. NO. 1271 OF 2008
BETWEEN:
THE STATE
AND:
MAPI MACK
Prisoner
Mendi & Tari: David, J.
2010: 11 & 15 June, 2 & 9 August
SENTENCE – arson – burning of two dump trucks – petrol used to set trucks alight - total loss was K2,496,000.00 - guilty plea – first time offender – offence committed while in company of others - demonstration of remorse and contrition – pre-planning - prisoner traditional villager, illiterate and lacks sophistication – isolated incident - prisoner has no means to restitute or pay compensation – de facto provocation arising from dispute over royalty payments – offence committed after National Court decision made adverse to prisoner and clan - deterrent sentence serving both as personal and general deterrence against other would be offenders required - sentence of eight years IHL – sentence partly custodial and non-custodial - ss. 19 & 436 (f) Criminal Code.
Cases cited:
The State v Ipu Samuel Yomb [1992] PNGLR 261
State v Akena Pawa [1998] PNGLR 387
The State v Seye Wasea Bukere (1999) N1848
The State v Andrew Yeskulu (2003) N2410
The State v Robin Warren (No 2) (2003) N2418
The State v Henny Wamahau Ilomo (2003) N2420
The State v Enni Matthew (No 2) (2003) N2563
The State v Prodie Akoi (2004) N2584
The State v Titus Kep (2004) N2616
The State v Bart Kiohin Mais (2005) N2811
The State v Peni Bilak (2005) N2866
The State v Bernard Bambai (2006) N3019
The State v Sylvester Heai Evore (2006) N3236
Emil Kongian v The State (2007) SC928
The State v Yunati Epa (2008) N3309
The State v James Wakis (2008) N3426
Counsel:
Messrs Joe Waine and Augustus Bray, for the State
Messrs Peter Kumo and Philip Kapi, for the Prisoner
SENTENCE
9 August, 2010
1. DAVID, J: The prisoner was indicted with two counts, one for attempting to unlawfully kill Steven Undula and Peamu Engu on 15 July 2008 at Kutubu contrary to s.304 (a) of the Criminal Code and the other for wwilfully and unlawfully setting fire (arson) to two motor vehicles on 15 July 2008 also at Kutubu contrary to s.436 (f) of the Code.
2. The prisoner pleaded not guilty to the first count. The State offered no evidence so the count was dismissed and the prisoner acquitted accordingly.
3. As to the second count, the prisoner pleaded guilty. Upon being satisfied that the evidence contained in the depositions supported the charge, I accepted the guilty plea and convicted the prisoner of the charge.
BRIEF FACTS
4. For purposes of arraignment, the following brief facts were put to the prisoner.
5. The prisoner is a member of the Kondo clan. He lives around Kutubu on the North West Moran land. Over the years, there has been a dispute over that land. The matter went before the National Court at Waigani as a civil matter. On 14 July 2008, the Court delivered a judgment in favour of granting the land to Perri clan. That meant that the benefits and royalties would therefore go to the Perri clan.
6. That evening, a meeting was conducted by a leader of the prisoner's clan. The prisoner and others attended the meeting. At that meeting, they agreed to kill anyone that was on that particular land and burn any machine or equipment working on the Homa-Tari road.
7. The prisoner and the others then set out to carry out what was agreed to at that meeting. They were armed with a shotgun and a container of petrol and went to what is known as North West Moran 14.
8. When approaching North West Moran 14, the prisoner took out his shotgun and shot at one Steven Undula. Steven Undula in the main escaped unhurt, but suffered some facial injuries caused by pellets. The prisoner also shot at Peamu Engu, but missed him. These two are employees of Oil Search Ltd who were working at the time.
9. The prisoner then with the assistance of others chased the workers away, took the container filled with petrol and sprayed petrol all over two big trucks parked there and set them alight. The fire spread and eventually the two trucks were burnt down completely.
10. The value of each truck was over K1 million. Two of them would therefore be valued over K2 million.
PRISONER'S ANTECEDENTS
11. The prisoner has no prior convictions.
12. The prisoner is married with two young children and is aged about 33 years. According to the Pre-sentence Report, his parents are alive, but in the Record of Interview, the prisoner said his father died when he was a baby. He has ten other siblings. According to the Pre-sentence Report, it reports that the prisoner and his family all live at Beneria village, Komo/ Magarima District, but in the Record of Interview, he states that they now reside at Homa village, Komo/ Magarima District. He has received no formal education and is therefore illiterate. He had worked as a cleaner with Moro Development Corporation before where he earned about K140.00 per fortnight. He was living in the village as an ordinary subsistence villager up until this crime was committed. He is a member of the Seventh Day Adventist Church at his village.
ALLOCUTUS
13. On allocatus, the prisoner admitted to committing the crime. He said he was sorry for what he had done which was wrong and pleaded for the Court to have mercy and impose a lenient sentence. He asked the Court to consider that; he was a first time offender; he has pleaded guilty; he has cooperated with the police during their investigation; he was an illiterate, uneducated and unsophisticated traditional villager; he acted out of frustration on behalf of his people for the company operating four oil rigs on their traditional land taking so long to pay royalties due to them in the sum of K8 million; he had the right to do what he did on behalf of himself and his people being resource owners deprived of earning a legitimate return from the exploitation of their natural resource; and his action has brought about hardships to his family to whom he was sorry.
PRE-SENTENCE REPORT
14. To assist me in making a decision on the appropriate sentence for the prisoner, I directed that a Pre-sentence Report be compiled and filed by the Probation Service at the request of the prisoner's counsel by or prior to the commencement of the Tari circuit starting on 2 August 2010. The Pre-sentence Report was compiled and filed within the period required and I am grateful to Martin Tongamp, Probation Officer, Mt. Hagen for attending to that. I have read the Pre-sentence Report and note the details in particular the recommendation that the prisoner is a suitable candidate for probation supervision hence a non-custodial sentence be imposed.
SUBMISSIONS BY THE DEFENCE
16. It was further submitted that the Court strike a balance to be reflected by the sentence when considering the Pre-sentence Report in particular the recommendation for the release of the prisoner on probation as against the incapacity of the prisoner to effect restitution.
SUBMISSIONS BY THE PROSECUTION
17. The Court was urged to impose a custodial sentence between six and ten years. Mr. Bray for the State submitted that the presence of a number of aggravating factor warranted such sentence. These were; firstly, the action was prompted by a decision of the National Court which was not in favour of the prisoner and his clan hence amounting to contemptible behaviour; secondly, the action caused great loss to the victim because the total value of the two trucks was K2,496,000.00; and thirdly, the prisoners criminal conduct could act as a deterrence to potential foreign investment worth millions of kina detrimental to the economic development of the Southern Highlands Province and the country as a whole.
18. Mr. Bray also urged the Court to note three factors which operated against the prisoner and the recommendation for a non custodial sentence. Firstly, the Pre-sentence Report reports that the prisoner ordinarily has no means to restitute being a villager. Secondly, any thought by the prisoner of receiving royalties from the developer or operator of the oil field to effect restitution was incapable of materialising in view of the fact that the land for which he and his clan had a dispute over with others no longer belongs to them following the court decision. Thirdly, the prisoner stated in the Record of Interview that there was still unfinished business to attend to later.
ISSUE
19. The only matter that the Court needs to resolve now is the question of what is an appropriate sentence for the prisoner.
THE RELEVANT LAW
20. Section 436 of the Code creates the offence and prescribes the penalty. This is a serious offence as is indicated by the penalty. The maximum penalty to which an offender is liable is imprisonment for life. A lesser determinative term could be imposed in the exercise of the Court's discretion by virtue of s.19 of the Code. This discretion is exercised upon consideration of both the mitigating and aggravating factors present in a particular case. Section 436 states:
"Section 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."
21. I am not aware of, nor have counsel referred the Court to, any sentencing guidelines pronounced by the Supreme Court for this offence. However, the criteria applied by Justice Doherty in The State v. Ipu Samuel Yomb [1992] PNGLR 261, have often been applied in arson cases.
22. There, the offender pleaded guilty to one count of arson in setting fire to the house occupied by his sister in law and her family at night. There were children in the house. The fire was pre-planned. The door was locked from the outside by the prisoner. 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. The Court there started with a sentence of seven years which was reduced to five years.
"I consider the following to be relevant aspects in the case before me:
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, so preventing escape by the occupants;
4. The deliberate cold-blooded planning of the offence;
5. The value of the house and its contents to the occupants;
6. The complete lack of provocation offered to the defendant by the occupants and their children."
24. In The State v. Andrew Yeskulu (2003) N2410, Justice Kandakasi was guided by the considerations in Ipu Samuel Yomb when suggesting five categories under which arson cases could fall. He said:-
"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.
I am of 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. In this province alone there are a good number of arson cases pending on the list for trial. 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. 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 Courts have 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 prescribed of life imprisonment in the more serious cases. 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 these views, I maintain 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 demonstrate a case for leniency, he has no reason to expect a sentence other than the maximum."
25. In Andrew Yeskulu, the prisoner burnt down an elementary school building built of bush materials housing three classrooms. Land dispute was claimed to be the reason for burning down the building. Teaching materials were lost. Kerosene was used to set the building alight. On a guilty plea, a sentence of seven years IHL was imposed wholly suspended with strict conditions applying including restitution of the burnt down building and free labour to the school for seven years.
26. In The State v. Bart Kiohin Mais (2005) N2811, Justice Cannings adopted and applied the principles suggested by Justice Kandakasi in Andrew Yeskulu and adopted the starting point of ten years for the burning down of a dwelling house in that case. Whilst the categories in Andrew Yeskulu appear to be an expansion of those already set out in Ipu Samuel Yomb, I generally agree with them.
27. In Bart Kiohin Mais, the prisoners with others burnt down a semi-permanent dwelling house made of corrugated iron roofing and the rest with bush materials. Household goods and clothes were also destroyed. It was a spontaneous attack executed by the prisoners and several others acting on the belief that the victim had stabbed a brother of one of the prisoners which was true and constituted some de facto provocation. They then took a plastic container of petrol, poured it around the house and set it alight. No one was in the house at the time. Guilty pleas were entered. Sentences of two years were imposed on each offender wholly suspended with a number of conditions applying.
28. In The State v. Peni Bilak (2005) N2866 however, Justice Lay expressed his difficulty with the suggested starting point by Justice Kandakasi in Andrew Yeskulu because he considered that the offence could not be described as prevalent, at least in the East New Britain Province. He was of the view that sentences imposed for the offence in the past ranging from two to five years was having the desired deterrent effect in that province.
29. In Peni Bilak, the prisoner burnt down a dwelling house acting on the belief that the owner of the house practiced sorcery to kill another. The prisoner and his friends threw stones at the house forcing the victim's family to flee from the house. The house was made of bush materials. The prisoner and his friends proceeded to pull down the bamboo walls. They then took a plastic container of kerosene, poured it around the house and set it alight. As a result of the fire, the victim and his family lost their personal belongings. The court sentenced the prisoner to two years IHL.
30. As to the view expressed by Justice Lay in Peni Bilak, Justice Kandakasi in The State v Sylvester Heai Evore (2006) N3236 observed that a national approach was preferable when deciding the question whether an offence was prevalent or not in the country. He said:
"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."
31. With respect, I would agree with Justice Kandakasi's observation.
32. After carefully considering the guidelines suggested in Ipu Samuel Yomb and Andrew Yeskulu and the application of the guidelines under Andrew Yeskulu in The State v Robin Warren (No 2) (2003) N2418, The State v Henny Wamahau Ilomo (2003) N2420, The State v Enni Matthew (No 2) (2003) N2563, and The State v Prodie Akoi (2004) N2584, Justice Cannings in Bart Kiohin Mais proceeded to formulate a list comprising sixteen considerations which he took into account when deciding an appropriate sentence in that case. These are:-
1 Did the offender cause damage of a relatively low value?
2 Was there no person or class of persons directly affected by the damage or destruction of the property?
3 Did the offender not put lives at risk?
4 Was there only one offender?
5 Did the offender not plan the offence in a deliberate and calculated manner?
6 Did the owner of the property or any other person provoke the offender in 'the non-legal sense'?
7 Was it an isolated incident?
8 Did the offender give himself up after the incident?
9 Did the offender cooperate with the police in their investigations?
10 Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?
11 Has the offender not caused further trouble since the incident?
12 Has the offender pleaded guilty?
13 Has the offender genuinely expressed remorse?
14 Is this his first offence?
15 Can the offender be regarded as a youthful offender?
16 Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
33. The prisoner has been convicted of arson under s.436 (f) of the Code, therefore none of the categories suggested in Andrew Yeskulu apply in the present case. This is because they specifically apply to buildings or structures of some sort and not to motor vehicles. However, I have considered the rationale behind the suggested starting points for each category in that case which is the prevalence of this serious offence and therefore for purposes of consistency, I will adopt a starting point for the present case, for the burning of a functioning motor vehicle, of ten years imprisonment.
34. I will adopt and apply the considerations in Bart Kiohin Mais to the present case however. To that list, I will add another consideration which is whether there was any deliberate pouring of highly flammable substances such as kerosene, petrol, diesel, etc. to set fire which is in line with the second consideration in Ipu Samuel Yomb.
THE PRESENT CASE
Application of considerations
35. I now apply those seventeen considerations below.
36. As to the first consideration; each Moxy Astra Articuted dump truck, one bearing registration number LAU 249 and the other bearing registration number LAU 250, was valued at K1,248,000.00. The total value of the two trucks is K2,496,000.00.
37. As to the second consideration; the victim, Moran Development Corporation which most probably was established by the Moran Oilfield landowners confirmed by the prisoner in the Record of Interview and the owner of the two Moxy Astra Articuted dump trucks was directly affected in its capacity as a corporation and Moran Oilfield landowners themselves.
38. As to the third consideration; the offender did not put lives at risk.
39. As to the fourth consideration; a group of people was involved.
40. As to the fifth consideration; the offence was planned in a deliberate and calculated manner. The prisoner is from the Kondo clan. After the news of the National Court decision granting the disputed land, North West Moran 14 to Perri clan was handed down in Port Moresby on 14 July 2008, a meeting of the Kondo clan was called that evening at Homa village to discuss the clan's next course of action. It was agreed that some men were to go to the Homa-Tari road construction site and set fire to the machines and trucks there. The crime was committed in the execution of that agreement.
41. As to the sixth consideration; there is no evidence about Moran Development Corporation's direct involvement on the question of the non-distribution of royalties to the prisoner's clan and the position it took in relation to the dispute between Kondo and Perri clans, but as a landowner corporation, one would have thought that it was set up to be used as a vehicle to advance the interests of the landowners including receiving maximum benefits from the exploitation of their natural resources. There are no court or other documents in the depositions to indicate names of the parties that were actually involved in the litigation in the National Court at Waigani or the cause of action which was being pursued or the orders taken out, but from the little that is in the depositions, it seems that the action was about the recognition by the Department of Petroleum & Energy and Oil Search Limited as to which of the two clans was to receive royalties from the activities conducted at North West Moran 14.
42. Frustrations over non-payment of royalties to the Kondo clan came to its peak when the National Court ruled in favour of the Perri clan and the subsequent events that took place after that leading to the commission of the offence. At the end of the day, it was the legitimate landowners who suffered. Kondo clan aggrieved by the court decision instructed its members to set out to unlawfully destroy things from the use of which it was not going to benefit. Instead of following the civilised way of taking the matter further to the Supreme Court or other bodies authorised by law, if any, to intervene in such situations, they decided to take the law into their own hands by venting their frustrations and anger on the victim's property. By doing that they were actually fighting the legitimate landowners of North West Moran 14.
43. The Pre-sentence Report reports that the views of the victim have not been obtained for one reason or another despite making a number of attempts to get some information from the Chairman. I note however that throughout the Pre-sentence Report, it refers to Moro Development Corporation instead of the victim, Moran Development Corporation for which no clarification was advanced by the parties or the Probation Officer. The reference to Moro Development Corporation concerning the work history of the prisoner is the only exception. I think the error may perhaps have been due to inadvertence on the part of the Probation Officer and the error is of little significance because one thing is very clear and that is that the Pre-sentence Report does not contain the views of the victim.
44. It is clear in my mind that the prisoner and his clan were extremely frustrated because the effect of the National Court decision was that their demand for K8 million was not going to be met and their dreams of bettering their lives through the royalty or compensation payment they had hoped to receive went with the court decision. They would have perceived that any undertaking that may have been made to pay them by some person in authority prior to the court decision was colloquially just hot air. Whether the victim had any input to their wretchedness in my view is immaterial. I will grant the prisoner the benefit of their being provocation in the non-legal sense.
45. As to the seventh consideration; it was an isolated incident.
46. As to the eighth consideration; the offender voluntarily gave himself up on 28 July 2008 after having gone into hiding since the incident.
47. As to the ninth consideration; the offender cooperated with the police in their investigations.
48. As to the tenth consideration; the offender has not done anything tangible towards repairing his wrong. The Pre-sentence Report reports that the prisoner does not have the financial capacity as one would expect of an ordinary traditional villager to personally meet any order for restitution or compensation, but he could seek assistance from relatives and members of the community. The Pre-sentence Report also reports the prisoner saying that compensation would have been paid already had Oil Search Limited paid his clan their monies and he was not detained.
49. As to the eleventh consideration; the prisoner has not caused further trouble since the incident despite saying in his Record of Interview that there was unfinished business to attend to later. There is no evidence before me to suggest that his other clansmen have caused further trouble since the incident as well.
50. As to the twelfth consideration; he has pleaded guilty.
51. As to the thirteenth consideration; I accept that the offender has genuinely expressed remorse and contrition.
52. As to the fourteenth consideration; this is the prisoner's first offence.
53. As to the fifteenth consideration; the offender cannot be regarded as a youthful offender.
54. As to the sixteenth consideration; the prisoner is an illiterate and an unsophisticated traditional villager.
55. As to the final consideration; the prisoner deliberately poured petrol on the two dump trucks and set them alight.
56. There are more mitigating factors. I have considered the first, second, fourth, fifth and seventeenth considerations as strong aggravating factors. A case for a sentence below the starting point of ten years has been made out.
Comparable sentences
57. To assist me in arriving at an appropriate sentence in the present case, apart from the cases I have discussed earlier, I have also considered the following cases.
58. In The State v Seye Wasea Bukere (1999) N1848, the offender pleaded guilty to a charge of arson for setting fire to a Pre-School classroom. The offender argued that his action arose as a result of two disputes with the school, the first was over the land upon which the classroom was erected and the other was the killing of his pig by the headmaster of the school. The prisoner was aged twenty two years. The Court imposed a sentence of four years IHL.
59. In The State v Robin Warren (No.2) (2003) N2418, the prisoners were all found guilty and convicted after a trial on twenty one charges of arson contrary to s. 436 (a) and (f) of the Code. Nineteen of the charges were for the burning down of bush material dwelling houses while the remaining two were for the burning of two motor vehicles owned by two different persons. Guns and other weapons were used to facilitate the crime conducted in a group raid early in the early hours of the morning between 5:30 and 7:00 o'clock. The attack was in revenge of the stabbing of one person by another which eventually led to the death of the victim. No remorse was shown. Sentences of fifteen and sixteen years IHL were imposed on the prisoners.
60. In The State v Henry Wamahau Ilomo (2003) N2420, the prisoner burnt down a dwelling house, a kitchen and a firewood shed acting on the belief that the owner practiced sorcery to kill his sister. On a guilty plea, a sentence of seven years IHL was imposed wholly suspended on terms including restitution.
61. In The State v Enni Mathew (2003) N2563, the prisoners were all found guilty and convicted after a trial on four charges of arson for burning down four bush material dwelling houses. They were also found guilty and convicted on a charge of unlawful deprivation of liberty. Those offences were committed out of a pre-existing land dispute and animosities arising out of that and after the Local Land Court had awarded the disputed land to the victims. The prisoners were sentenced to eleven to fourteen years IHL to be served concurrently with sentences for deprivation of liberty.
62. In The State v. Prodie Akoi and Steven Akoi (2004) N2589 two houses were burnt down. The prisoners acted on the belief that the victim practiced sorcery to kill their brother. The total estimated value of items lost was placed at K64,000. An offer to restitute was refused by the victim. The crime was committed on allegation that the prisoners' deceased brother moved the coffin he was in to point out the sorcerer responsible for his death. One of the prisoners then took a plastic container half filled with petrol, broke open the main door of the victim's house, poured petrol all over the inside of the house and set it alight. A baby boy asleep in the house was saved by his father just in time. Both prisoners pleaded guilty. Sentences of ten years IHL were imposed on each prisoner with five years suspended on terms including eight hours per week free community service.
63. In the State v Akena Pawa [1998] PNGLR 387, the prisoner burnt down a modern permanent house which included some modern appliances and goods. Kerosene was used to set the house alight. The house and its content were valued at between K80,000.00 and K85,000. The prisoner was a young man, but no leniency was given on that account because the offence was pre-meditated. The value of the house and goods destroyed and the intentional and pre-meditated actions of the prisoner were factors that determined the head sentence of four years in hard labour.
64. In The State v Bernard Bambai (2006) N3019, the prisoner pleaded guilty to burning his family home, a Provincial Government owned house which he was renting after an argument with his wife. The house was valued at about K36,000.00. He was sentenced to three years. Execution of the sentence was delayed for three months to allow restitution to take place and if it were not effected within that period, the prisoner was required to show cause why he should not be immediately committed to custody to serve sentence.
65. In The State v Sylvester Heai Evore (2006) N3236, the prisoner climbed into the cabin of a bulldozer owned by a logging company operating in the prisoner's locality, poured diesel on the seat and then set it on fire. Nearby villagers were alerted by a witness and managed to put the fire out before the whole bulldozer caught on fire. The fire partially damaged the seat, but the whole seat required replacing. The cost of such replacement was K2,801.83. On a guilty plea, the prisoner was sentenced to three years less two years, seven months and twenty five days for per-trial custody. The balance of the term was suspended with conditions.
66. In The State v Yunati Epa (2008) N3309, the prisoner burnt down a semi-permanent house constructed with a corrugated iron roofing and the rest bush material with its content. Estimated loss was placed at K9,000.00. The prisoner and the owner of the house were married to two sisters. The prisoner and his family also resided in the house. Some differences arose concerning the prisoner's wife and children being sent away on a number of occasions by the victim and his wife to his wife's village and he had to meet the costs of their return on all those occasions. On one of those occasions, one of the prisoner's children received fire burns to her body. Concerned about the safety of his family, the prisoner warned the victim and his wife not to send his family away again because if they did, he would take action against them. His family was sent away again and this infuriated the prisoner. He then went to the house and set it alight. On a guilty plea, the prisoner was sentenced to three years less the period for pre-trial custody. The balance of the term was wholly suspended with conditions including an order for restitution.
67. In The State v James Wakis (2008) N3426, the prisoner had a long-running dispute with his brother over the oil palm block which they shared and on which they had separate houses. He joined with two others and entered his brother's house, assaulted the occupants and forced them to flee. He then poured kerosene around the house and set it alight. The result was that the dwelling house and an adjacent haus boi both semi-permanent buildings were completely burn down including the properties in them. On a guilty plea, the prisoner was sentenced to six years less time spent in custody and the balance of the sentence was wholly suspended with conditions.
68. In Emil Kongian v The State (2007) SC928, the appellants were convicted after a trial of four counts of arson and one count of deprivation of liberty. Those offences were committed out of pre-existing land disputes between people from two villages and animosities arising from them. They were sentenced to varying total terms of imprisonment of between twelve and sixteen years each. Two were given higher sentences. One because he was the ring leader and the other was a local government councillor. Two others were given slightly less sentences because of their youthfulness. They appealed against conviction and sentence. The appeals against conviction were dismissed. Their appeals against sentence were allowed. Sentences of three to five years were substituted for each offender.
69. Amongst the cases I have referred to above, Robin Warren (No.2) and Sylvester Heai Evore are the only cases where the prisoners were convicted of charges under s.436 (f) of the Code. Robin Warren (No.2) can be distinguished from this case because, conviction was after a trial, it was a group raid, guns and other weapons were used to facilitate the commission of the offence, and there were a total of nineteen other charges preferred under s.436 (a) of the Code. As I stated earlier, sentences of fifteen and sixteen years IHL were imposed on the prisoners there. In Sylvester Heai Evore, the punishment he received for partially burning the seat of a bulldozer was three years. All the other cases deal with different types of houses or buildings of varying value and sentences. Certainly the sentence in the present case will be lower than ten years as I have indicated earlier and not less than three years.
CONCLUSION AND SENTENCE
70. At this point in time, our country as a whole is enjoying an economic boom that has never been experienced before through the PNG LNG Project and related activities. This project is in the Hela Province. Both the Hela Province and the Southern Highlands Province no doubt stand to benefit directly and indirectly from the PNG LNG Project. One can already see the signs in Tari, Mendi and as far away as Mt. Hagen, Port Moresby and the Central Province where for example, the building industry is booming with new lodges, motels, hotels and offices being constructed. Airline, trucking companies and many other businesses will benefit from this project. Lives no doubt will be affected one way or another. The fortunate ones will make use of the opportunity to advance financially. The not so fortunate ones, which form the majority of the populace at large, will continue to live their normal lives in their hamlets, villages, stations, towns and cities and will depend on the national and provincial governments in particular the ones in Hela and Southern Highlands provinces to hopefully share the spoils in whatever form they are brought to them big or small. I have not forgotten the contributions that the oil companies and others have made in the past and are continuing to do so to the country's coffers. What I want to say here is that an environment conducive to giving effect to the National Goals and Directive Principles laid down in the Constitution in particular the second (equality and participation), third (national sovereignty and self-reliance) and fourth goals (national resources and environment) must be created. This will not be achieved with lawlessness. Serious offences such as arson, aggravated robbery and the like are an affront to the economic development of this province and the country as a whole and therefore those who are involved in committing such crimes should be punished sternly. The impact of the commission of serious crimes on the economy of provinces where they occur and the country as whole including loss of potential foreign investment worth millions of kina is a factor that should be taken into account when considering an appropriate sentence in appropriate cases. I will take that factor into account here.
71. I end this discussion by quoting a few passages from the judgment of Justice Sevua in The State v Titus Kep (2004) N2616 which is relevantly on the point. There, when sentencing five Southern Highlanders who were convicted on pleas of guilty for demanding compensation with threats of violence and with intent to extort more than half a million kina from New Britain Palm Oil Limited contrary to s.390A (a)(b)(i)(ii) of the Code following a motor vehicle accident involving a truck belonging to that company and a PMV which resulted in three deaths, His Honour observed:
"This province is rich in palm oil which contributes millions of kina to the nation's purse every year. The country cannot afford to lose foreign investment worth millions of kina because of this kind of lawlessness. The country cannot afford to allow a small group of illiterate criminals to injure its image internationally. If this is the kind of demand the prisoners make at their home in the Southern Highlands then they should return to their home to do that. In fact, they all, except one, have been unemployed so there is no reason they cannot return to their home province. There is evidence by the Manager of Bilomi Plantation that the company had suffered substantial losses in terms of fruits not being harvested as well as financially, however, such losses have not been stated in real monetary terms. This is the kind of thing we can do without. If we allow this kind of lawlessness to go on unpunished, it will eventually destroy the economy of this province and the country and deter genuine investors from coming to invest here to help develop the country financially and economically.
For these reasons, it is my view that although this offence may not be a very common or prevalent offence, it is one which must be punished by incarceration to deter similar conduct in any major industry or corporate sector which brings in millions of kina in needed revenue to the country. So the economic aspect of the effect of this kind of offence to the nation is a paramount consideration, not necessarily to the company.
Whether this offence is committed at a gold mine, oil installation, palm oil plantation or any major corporate industry, the financial effect will be the same except the actual monetary losses suffered. Besides, this kind of conduct will only help to paint a grim picture of Papua New Guinea as a land of crime and lawlessness that foreign investors would not want to come and invest here. In my view, we cannot allow this country to be viewed like this internationally.
By the same token, we should not allow this kind of criminal behaviour to continue unsanctioned or with light punishment. It is just as important to the country as a whole, as it is to West New Britain Province that this kind of lawlessness be stamped out before it gets out of hand. The punishment in this case must reflect that aspiration, and must be a warning to all plantation workers in this province and everywhere in Papua New Guinea for that matter, that the Courts will view this offence very seriously."
72. I, with respect, endorse and adopt His Honour's observations.
73. A sentence serving both personal and general deterrence against other would be offenders is required in the present case.
74. Having taken into account all of the above factors and the prevalence of this offence, I consider that a sentence of eight years imprisonment in hard labour partly custodial and non-custodial is appropriate. Incarceration will be at the Bui-iebi Correctional Institution. The prisoner was taken into custody on 28 July 2008. He has therefore been in pre-trial custody for two years and twelve days. I will deduct the pre-trial custody period and that will leave five years and three hundred and fifty three days for the prisoner to serve. However, I will suspend part of the remaining term on the following conditions:
1. That the prisoner immediately serve two years and three hundred and fifty three days at Bui-iebi Correctional Institution leaving three years to be served on suspension upon completion of the custodial sentence.
2. That the prisoner shall contact the Mt. Hagen Provincial Probation Officer within seven days of his release from custody after completing the custodial sentence.
3. That the prisoner shall report to the Mt. Hagen Provincial Probation Officer as and when required by him to do so.
4. That the prisoner shall enter into his own recognizance to keep the peace and be of good behaviour during the period of suspension.
5. That the prisoner shall completely refrain from consumption of any alcoholic or intoxicating substance including illicit drugs during the period of suspension.
6. That the prisoner shall reside at his village of Benaria, Komo/Magarima District and shall not change his residential address unless he has given the Mt. Hagen Provincial Probation Officer reasonable notice of his intention to do so and the reason for the proposed change.
7. That the prisoner shall not leave the Hela Province without the permission of this Court during the period of suspension except in the performance of the conditions of this sentence out of the province.
8. That the prisoner shall for the purpose of the Probation Act, allow a Probation Officer to enter his home during reasonable hours.
9. During the period of suspension, the prisoner shall provide free community service of four hours per day every government fortnight Friday at the Moro Police Station or at such other public institution in Moro requiring the services of the prisoner to be determined and supervised by the Mt. Hagen Provincial Probation Officer. The prisoner must obey all instructions from the administrative head of the relevant institution where he provides his service in consultation with the Mt. Hagen Provincial Probation Officer.
10. When an office for the Probation Service is permanently established and manned either in Mendi or Tari whichever is established first in time, the prisoner shall comply with the reporting and supervisory requirements at that location.
11. The prisoner will be at liberty to apply for a review of any of these terms including the lifting of any of them provided that there has been substantial compliance.
75. In the event that any one of the above conditions is not complied with, then the prisoner's probation will be breached and he will be arrested and sent to the appropriate institution adjudged above to serve the balance of the term which I have suspended.
76. I sentence the prisoner accordingly and also order that an appropriate warrant be issued forthwith to give effect to this sentence.
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Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner
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