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State v Joachim [2014] PGNC 366; N6537 (19 May 2014)

N6537

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 701of 2012

CR 702 of 2012

THE STATE

V

BENJAMIN JOACHIM & BARNABAS JOACHIM

Bialla : Batari J

2014 : 16 & 19 May

CRIMINAL LAW – sentence – arson – accused set alight a bush material house in a dispute over oil palm block ownership – victim had trespassed onto accused persons’ oil palm block and built himself a house the subject of the offence - circumstances of aggravation - right to protection of property – plea - mitigating factors –victim resisted legitimate eviction recourse by accused persons - provocation – moral blameworthiness – degree of - 4 years wholly suspended on conditions appropriate.

Cases Cited
No cases cited

Counsel:
A. Bray, for the State
D. Kari, for the Accused

SENTENCE
19 May, 2014

1. BATARI J: You two brothers committed arson against the victim, Peter Goiye. This is your punishment following your guilty plea and conviction.

2. The facts which also form the basis of your sentences are brief. Your family had acquired from a landowner company, Ereluankere Oil Palm Estate at Soi, Bialla, East Nakanai, a block of land for oil palm cultivation. Due to heavy flooding you left the block temporarily and resettled at Kavui LSS near Kimbe. In your absence, the victim occupied and settled at your block without your knowledge or permission. He also harvested the oil palm you had planted. Upon returning, your attempts to persuade Peter to vacate the property went unheeded even with the landowners’ assistance. Peter also defied police intervention to evict him. So, you resorted to violence in what was clearly an attempt to forcefully evict the victim from your property.
   
3. On 24/3/2012 you confronted Peter at the oil palm block with the assistance of others and destroyed his kitchen utensils out the house. You then remove contents of the house before setting the house on fire.
   
4. The victim was originally of Chimbu Province. The two of you are part Jiwaka and East New Britain provinces.
   
5. You are charged under s 436(a) of the Criminal Code which makes it an offence for a person to wilfully and unlawfully set fire to a building or structure. The prescribed maximum penalty is life imprisonment.
   
6. Parliament has seen fit to make arson one of the most serious crimes of violence as it involves conscientious guilty mind to bring about property loss through wilful and unlawful setting of buildings on fire. Such reprehensible act of deprivation of property rights by its nature also puts lives of the occupants and adjoining or adjacent properties at risk.
   
7. Luckily for you, the maximum sentence not mandatory because s. 19 of the Code makes it discretionary for the court to impose a term of years. In exercising this discretionary power, the sentencing authority is mandated to carefully consider the facts of each particular case and impose a sentence that fits the offence. The appropriate sentence may be life imprisonment or a term of years as the facts of each case may dictate.
   
8. Cases of arson usually involve wanton destruction of houses and homes, in blatant disregard of the owner’s peaceful occupation or possession and the consequential amount of loss to the victim. It violates the basic right to peaceful possession or ownership and causes substantial loss which are often hard to restore or replace. The law on arson takes into account the need to protect the community and individuals against wanton destruction of homes and other buildings of commercial or private nature. It is a very serious matter when disgruntled persons resort to violence other than formal redress through peaceful and amicable means.
   
9. It is generally assumed, that men and women who had laboured hard and long expanding time and expenses to build houses or homes, whatever the construction may be of, had in the first place, genuinely acquired good title or interest to the land. Hence, they are entitled to enjoy the fruits of their labour peacefully without the fear of attack or sudden loss from lawlessness. Whether the home is of modern or a simple bush material structure; it is all the same, a safe haven to the owner. And to unlawfully set the building alight is the most thoughtless act against property rights. This also brings about unwanted trauma, misery, and inconvenience to the owners when their home is burned down.
   
10. The value of the structure deliberately set on fire is also a relevant consideration on sentence. If the value of the house is high, or the structure is a public institution like school, hospital, Court house, a business house or commercial building, this aggravating feature will attract a sentence at the top of the range for the worst type of arson.
    
11. People must surely know that those who offend will be punished. When houses are deliberately lit, there is an element of acting in defiance of the rule of law. Hence, this calls for increased penalties to meet both the general and personal deterrence aspects of sentencing.
    
12. In this case, you had resorted to violence at the end of what may have been very frustrating attempts to reclaim your land from an intruder and illegal settler. This is a classic example of land grabbing that is synonymous with oil palm block stealing in province. The increasing number of civil cases coming before the National Court is testimony to that unlawful land grabbing.
    
13. Prior to this offence, you had initially attempted to use lawful authority and means to assert your claim. After the incident, you obtained temporary restraining orders under the Land Dispute Settlement Act, 1975 against the victim but he has continued to act in defiance of that lawful court order as well. It is also conceded by the State Prosecutor, Mr Bray that the victim had in fact rebuilt his house and continues to occupy the block and enjoy the benefits from its harvests.
    
14. Be that as it may, by reacting in the manner you did, you had taken upon yourselves, the roles of police investigator, prosecutor and executioner. In short, you took the law into your own hands. I also have had regard to the possibility that you acted in an honest but mistaken belief that the lawful means you initially pursued to enforce your legitimate claim had failed you.
    
15. The sudden loss of the house with household items is no doubt a huge blow and a cause for anxiety and distress to victim. There may be personal and family attachments to the things lost. In some instances, such loss is irreplaceable. The bush material house in this case has been rebuilt albeit, in contempt of the current dispute and in defiance of lawful District Court orders.
    
16. I accept that your conduct is explained in the extenuating circumstances surrounding your offence. There were elements of provocation. The principle is that the moral blameworthiness of the offender is lessened where he or she is driven or compelled by provocation and community tolerance to commit the offence. Your conduct is considered acceptable in that context. It is thus, a relevant consideration that the conduct of the victim in unlawfully claiming your block of land and his obstinacy to give up possession despite legitimate recourse mitigated the gravity of the offence and your culpability.
    
17. Ages 19 and 20 years at the time of the offence coupled with this being your offence, I accept you both to be first young offenders. These two factors support your early plea of guilty. I also consider your expression of remorse to be genuine because it is supported by your early plea.
    
18. You are presently assisting your mother at your new location at Kavui Land Lease Settlement, Kimbe. At the same time you are trying to reclaim the family block at Soi, Bialla. Your intention is honourable. Unfortunately you adopted an unlawful means to pursue an honest claim.
    
19. Your lawyer Mr Kari in his useful submissions has pleaded for a suspended sentence. I understand both counsel to be in favour of penalty by imprisonment term but that the court consider the option to wholly suspended the sentence on a good behaviour bond. I have also considered whether to order compensation. In my view that will not be an appropriate course in the circumstances of the victim’s conduct.
    
20. Taking into account all that is for and against you, I sentence each one of to 4 years imprisonment with hard labour. The whole term is suspended for each one of you to serve on Good Behaviour Bond as follows:
    
    1. You shall each keep the peace and be of good behaviour bond at all times for four (4) years effective from this date upon your undertaking to make that promise;
       
    2. You shall be released forthwith from further custody upon your promise with surety in the sum of K600.00 to keep the peace and be of good behaviour at all times for four (4) years;
       
    100. In the event of default or a breach of the Good Behaviour Bond, you shall be arrested and detained to serve the full suspended terms of four (4) years each and in addition, you shall be called upon to pay up the K600.00 surety, in default, six months imprisonment each.
         

Sentenced accordingly,
________________________------------------_____________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused