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State v Podi [1996] PGNC 29; N1550 (10 September 1996)

Unreported National Court Decisions

N1550

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 612 OF 1996
THE STATE
v
NAIME PODI, SIVIO URE, ERA EUNAGE AGUNA SERI, NOU BESEKO GADIKI, GAITA KIAU AND RENAGI IKUPU

Waigani

Passingan AJ
28-30 August 1996
2-5 September 1996
9-10 September 1996

CRIMINAL LAW - Arson - Dwelling house - Revenge - Death by alleged sorcery - Denials - Principal offenders - Ss 7,8 Criminal Code.

Cases Cited:

There were no cases cited in the judgment.

Criminal Trial

Naime Podi and six others were charged that on the 2nd day of July, 1994 at Alo Alo village they wilfully and unlawfully damaged a dwelling house and personal effects valued at K25,957.33. They had set fire to the dwelling house and were charged with arson pursuant to Section 436 of the Criminal Code Chapter No 262. All the relevant facts appear in the reasons for judgment.

Counsel:

P Mogish and K Popeu for the State

G Gamogab for the accused

JUDGMENT

10 September 1996

PASSINGAN AJ: The seven accused are charged with one count of arson committed on the 2nd day of July, 1995 at Alo Alo village, Central Province.

The accused all live at Kido Village in the Central Province. On the 2nd day of July, 1994, between 5.00 pm and 6.00 pm they went to Alo Alo, a neighbouring village where the complainant Vabukori Tarube lives. The complainant was away in Port Moresby visiting his children. His house was vacant and had been locked up.

The dwelling house was permanently built. The stilts were mangroves, the floors were of sawn timber, the roof and walls were made of corrugated iron. It had two doors with deadlocks. The windows had glass louvre blades with security bars.

The essential facts are quite clear and not in dispute. The accused left Kido village and went directly to the complainant’s house at Alo Alo village. On arrival they all entered the house through one of the two doors. The accused Aguna Seri then broke the door down with a piece of wood. Prior to entering the house the accused had damaged the windows with bottles. Whilst the accused were inside the house fire started. The accused left the house and returned to Kido Village. The reason for the accused going to Alo Alo village is also not in dispute. They had gone to see the complainant, Vabukori Tarube over the death of Miss Auda Gado. It was alleged Mr Tarube had performed sorcery on her.

Three witnesses were called in the State case. The first witness called was the Complainant, Vabukori Tarube. His evidence was essentially on the value of loss and damages suffered. The next witness was Mata Reva, who had gone with the accused to Alo Alo Vilage. He saw the accused damage the complainant’s house. He saw the house on fire. That is to say he identified each accused at the scene causing damage to the complainant’s house, although he cannot say who actually started the fire. The final witness was Robert Kaia who saw the accused men returning home by a road leading from Alo Alo Village.

The seven Record of Interviews were tendered by consent (exhibits “B1” to “G2”). And finally statements of the four police witnesses in relation to the investigations and Records of Interview were also tendered by consent.

In the Defence case each accused elected to give sworn evidence. The evidence of each accused was basically the same. They were all at Gorohu Village for a rugby game. Before the game started news of the death of Miss Auda Gado reached them. The game was cancelled and the accused returned to Kido Village. They heard rumours that the complainant had caused her death by means of sorcery. The accused proceeded to Alo Alo village to see if the complainant was at his house. There is a minor difference in their evidence which I consider not very important. There is a tendency to show that they did not go as a group, but one by one. But they all arrived and found the complainant’s house empty. They then destroyed the house. The door and louvre glasses were broken. And not long the fire started in the house. Each accused agreed that they were the only persons in the complainant’s house at the time the fire started.

I turn now to the nature of the offence committed and this requires a consideration of other aspects of the evidence.

The first inquiry I make is whether one of the accused was responsible for setting the complainant’s house on fire. On the evidence before me I am satisfied beyond reasonable doubt that one of the seven accused was responsible for the fire. There is no evidence that the fire could have been started by someone else or that it was accidental. I find that no one else had anything to do with the complainant (Mr Tarube) or his house. This brings me to consider the provisions of Sections 7 and 8 of the Criminal Code.

On the evidence before me I make the following findings:

(a) that the seven accused had gone to Alo Alo village to see the complainant concerning the death of the deceased Auda Gado.

(b) that each accused knew why he was going to Alo Alo village, that is to say they had a common unlawful purpose.

I am satisfied that when the seven men set upon to destroy the complainant’s house they were doing so in the execution of the common unlawful purpose.

(c) that the fire was part and partial of the plan to take revenge against the complainant in light of the allegation of sorcery which was widespread in the village.

(d) that there is no evidence that the accused Nou Beseko Gadiki withdrew from the common unlawful purpose in (b) above. Further there is no evidence that he communicated his withdrawal to the other accused.

Accordingly, on the basis of Sections 7 and 8 of the Criminal Code I find each accused guilty as charged.

VERDICT

Guilty as charged (all accused).

REASONS FOR SENTENCE

You seven (7) men have been convicted of the crime of arson pursuant to Section 436(a) of the Criminal Code. It is a serious crime with the maximum penalty of life imprisonment but subject to Section 19 of the Criminal Code. The Court may impose a shorter term depending on the facts and circumstances of each case.

The facts and circumstances have been set out in the judgment I delivered on the 9th of September 1996. As I have said this is one of those serious crimes in our Criminal Code. Parliament had decided that the penatly for setting fire to a dwelling - house be life imprisonment subject to Section 19 of the Criminal Code.

A house is an important part of a person’s existence. It is his shelter and a place of rest. That is where he or she would keep his or her only possessions which would have been accumulated over many years. And in most cases all the resources may have been spent on building up a home for his or her family. It is common sense to know that if the house is destroyed by fire it is a complete loss to a person. In my view this should be an aggravating factor.

The next aggravating feature of this case is that the action of the prisoners were in retaliation for the death of a relative. When you heard the news you were full of anger and acted on suspicion that Mr Tarube was a sorcerer. Then you took the law into your own hands.

On the trial defence made an issue out of the value of the dwelling -house and its contents. In my view the value is not an element of the charge. This is because it does not matter if it is a complete building or a structure the offence remains a serious one. I am satisfied that the complainant’s house was a permanent building which was built to last. I am satisfied that the value of the house was quite substantial. These factors are against you.

On sentence I take the following factors into account in your favour:

(a) that you are all young offenders:

(b) that you are all first offenders; and

(c) you all have been in custody awaiting your trial for one and half weeks.

I also take into account your plea for mercy and leniency in your allocutus and your lawyer’s submissions.

Within the last six (6) months of 1996 sentences imposed by the National Court have varied from suspended sentence on good behaviour to six (6) years. I consider your case to be in the middle range. The sentence of the Court is three (3) years imprisonment in hard labour less the one and a half weeks each prisoner spent in custody.

I now made the following orders:

That the balance of your sentence (2 years, 11 months, 2 1/2 weeks) be suspended on the following conditions:

(a) that each of you be of good behaviour and to keep peace for a period of two years; and

(b) that each of you are to pay compensation to the complainant Vabukori Tarube in the following manner:

(i) that within six (6) months (by 10/03/97) you construct a dwelling house of the same size as that which was destroyed and of the same materials as follows: posts - of mangroves; floors - sawn timber; walls - corrugated iron or as agreed; roof - corrugated iron; and

(ii) further payment to the complainant within the same period of the sum of K1,800.00 in cash.

Lawyer for the State: Public Solicitor

Lawyer for the accused: G Gamogab Lawyers