N4833

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 88 OF 2012

THE STATE

-V-

LANGALEN YANDAN (NO. 2).

Wabag: Gauli AJ
2012: 6 &19 October

CRIMINAL LAW – Sentence – Guilty after trial – Arson – Criminal Code, section 436 (a) – Set fire to his sister's traditional bush material house – Completely burnt down with all their belongings – Motive – Long standing land dispute – Prisoner acted alone – First time offender – Prevalent offence – Suspension of sentence – Court has power to suspend sentence pursuant to section 19 (6) (b) of the Code – Sentenced to 3 years IHL – Pre - trial custody period deducted – Balance of 2 years 7 months and 4 days wholly suspended on condition. 

Cases Cited: 

Goli Golu v. The State [1979] PNGLR 653 
Lawrence Simbe v. The State [1994] PNGLR 38
The State v. Ipu Samuel Yomb [1992] PNGLR 261
The State v. Seye Wasea Bukere (1999) N1848
The State v. Andrew Yeskulu (2003) N2410
The State v. Bernard Bambai (2006) N3019
The State v. James Wakis (2008) N3426
Joe Giamur v. The State (2006) SC884
The State v. Micky John Lausi (2001) N2073 
The State v. Enni Mathew (No. 2) (2003) N2563

Counsel: 

M. Ruari, for the State.
J. Yapao, for the Prisoner / Accused. 

DECISION ON SENTENCE

19th October, 2012

1.	GAULI AJ: This is the decision on sentencing. The prisoner Langaleng Yandan has being found guilty and convicted after trial on one count of arson, charged under section 436 (a) of the Criminal Code. 
 
2.	The circumstance on which this offence was committed are these. That on Saturday 15th January 2011 at Lamendaimanda village, Wapenamanda in Enga Province, between 11.00am and 12.00 noon, the accused went to the traditional dwelling house of his sister Nyalan Lyokata and he set fire to it. At that material time, Nyalan Lyokata was attending the church service and there was no one in the house. When she heard a shout that her house was on fire, she ran out of the church. By the time she reached her house it was all in ashes. The house and all their belongings worth K10,000.00 went up in the flame except the clothes they were wearing. 

3.	There was a long standing land dispute between the prisoner and his sister Nyalan since 1995 over the piece of land on which the house was burnt down. The dispute was brought before the village court. The decision was made in favour of the sister Nyalan. The prisoner appealed and the District Court upheld the village court decision. The prisoner has appealed to the National Court and the appeal is still pending. 

THE LAW

4.	The law in relation to the offence of arson is in the following terms:

Section 436 Arson

A person who wilfully and unlawfully sets fire to – 

(a)	 A building or a structure, whether completed or not, 

is guilty of a crime.

 Penalty: Subject to Section 19, imprisonment for life.

5.	The offence of arson is punishable by a term of life year imprisonment but subject to Section 19 (1) of the Criminal Code, which gives the court the discretion to impose sentences lower than the maximum penalty. The law in regards to sentencing is well settled by the Supreme Court in the case of Goli Golu v The State [1979] PNGLR 653 and other cases that follows, that a maximum penalty is reserved for the worst category of any offence under consideration before the Court. And that in sentencing, each case must be decided on its own facts and circumstances; see Lawrence Simbe v The State [1994] PNGLR 38. 

ANTECEDENT REPORTS

6.	The prisoner has no prior criminal records. He is the first time offender. 

ALLOCUTUS

7.	In his allocutus, the prisoner confirmed that he has no prior convictions. He is a strong and committed SDA Church member. He is a single villager with no children. His sister is trying to get his land so she went and settle on the land. He never had a fight or argument with anyone. And he asked the court for mercy. 

PERSONAL PARTICULARS

8.	The prisoner Langaleng Yandan is 45 years old from Lamondaimanda village, Wapenamanda District in Enga Province. He is a single villager and a subsistence farmer. He is a committed SDA church member. 

MITIGATING FACTORS

9.	There are mitigating circumstances present and these are: 

1)	He is a first time offender. 
2)	He acted alone. 
3)	No one was in the house at the time of burning the house. 
4)	No inflammable substance, such as kerosene or petrol, were used in setting the house on fire. 
5)	House was made of bush materials. 
6)	There was some form of provocation due to a long standing land dispute between him and the victim.

AGGRAVATING FACTORS

10.	The aggravating circumstances are these:

1)	He set fire to a dwelling house on a Sabbath. 
2)	He knew the occupants would be attending the church service. 
3)	There was some pre-planning involved and it was not by accident. 
4)	He denied the charge and forced the matter to trial. 
5)	There was no restitution made. 

ISSUES 

11.	The only matter for the court to decide is what would be the appropriate sentence to be imposed on the prisoner. In determining the appropriate sentence to be imposed, the court need to determine the following issues:

(i)	 Whether this is the worst type of arson case to warrant imposing the maximum sentence of life year?

(ii)	 What is the appropriate head sentence or the starting point? 

(iii)	Whether it is an appropriate case to suspend the sentence wholly or in part? 

Issue (i): Whether this is the worst type of arson case to warrant imposing the maximum sentence of life year? 

12.	The worst type of an arson case would be one that has increasing seriousness or one that has more aggravating factors over the mitigating factors or one that involves group participation or use of violence etc. 

13.	Mr. Yapao for the defence referred to the case of The State v Ipu Samuel Yomb [1992] PNGLR 261, where Doherty J outlined some of the factors that would render the offence more serious. Those factors include: deliberate or reckless putting of lives at risk; deliberate pouring of kerosene on the roof and setting fire on the roof while people are inside; deliberate locking of doors to prevent any escape by people inside; deliberate cold-blooded planning of the
offence; the value of the house and its contents to the occupants; complete lack of provocation offered by the occupants. 

14.	The defence submitted that if all of the above features are present in the present case, then it would be more aggravating to warrant imposing life year imprisonment. In the present case none of the features in the Ipu Samuel Yomb (above) are present, therefore it is not a worst type of arson case. 

15.	Mr. Ruari for the State, also referred to The State v. Ipu Samuel Yomb (above), and conceded that this is not a worst type case of arson in that there was no one inside the house when it was set on fire. The only relevant part is the value of the house and its contents of the occupants that were lost in the fire. A sentence of 6 to 7 years was considered appropriate but reduced to 5 years due to the offender been young. Prosecutor also referred to the case of The State v Seye Wasea Bukere (1999) N1848, where Justice Sakora sentenced the prisoner to 4 years for burning down a school classroom. 

16.	I do consider the submissions by both the defence and the prosecution counsel. In the present case, the accused acted alone. There was no one inside when the house was set on fire. There is no evidence of the use of inflammable substances in setting the house on fire. Whether the prisoner locked the doors of the house before he set it on fire, could not be verified, as there is no evidence of anyone escaping from the house at the time. However, the prisoner deliberately burned down the house due to a land dispute with the victim. In comparing the present case to that of Ipu Samuel Yomb (supra), I find that this case does not fall into a worst category of the arson cases. Thus this case does not warrant the imposition of a maximum penalty of life year imprisonment. 

Issue (ii): What is the appropriate head sentence or the starting point? 

17.	There is no Supreme Court decision on sentencing guidelines particularly in arson cases. The sentences imposed by the National Courts ranges between 3 years to 16 years depending on the aggravating and mitigating circumstances of each case. 

18.	The defence counsel referred to the case of The State v. Andrew Yeskulu (2003) N 2410, where Justice Kandakasi, said the starting point for arson cases where there is no aggravating factors present should be 10 years, while with aggravating factors, the sentence should be increased. In that case the accused burnt down a school building housing three classrooms. His honour Kandakasi J sentenced the accused to 7 years wholly suspended.

19.	The defence counsel, in considering the sentences imposed in the case of The State v. Ipu Samuel Yomb (supra) and The State v. Andrew Yeskulu (above), submitted that the starting point be 10 years imprisonment. But considering the mitigating and aggravating factors in the present case, a head sentence between 2 – 5 years should be reasonable.

20.	Mr. Ruari for the State submitted that a sentence of 5 years should be appropriate in light of the sentences imposed in the cases of Ipu Samuel Yomb (supra); Andrew Yeskulu (above) and Seye Wasea Bukere (above). 

21.	The circumstances of the cases referred above by both the defence and the prosecution counsel are quite different to the present case in respect to the type of buildings involved. The present case involves a bush material house whereas the above mentioned cases involved permanent buildings and institutional houses. 

22.	In adopting the decision by Justice Kandakasi in The State v. Andrew Yeskulu (2003) N2410, Justice Gavara-Nanu, in The State v. Pricilla Piru (2010) N4221, also called for an increase in sentencing for arson cases because it is serious and prevalent offence. His Honour in imposing a sentence of 10 years said: "Sentence on arson need to be tough than what they are now because of the serious nature and prevalent offence". 

23.	A dwelling house, whether it be a bush materials, semi-permanent or a modern permanent house, it is a castle for both the owner and other occupants. It involves time, energy and costs to build regardless of the type and or the materials used. The law will not tolerate those who turn to torch down dwelling houses in retaliation to resolve other disputes such as land or for any other reasons. There are established forums where disputes can be resolved instead of resorting to solve them by some unlawful means. I agree with their Honours Kandakasi J and Gavara – Nanu J, that there is a need to take tougher sentences for arson cases. 

24.	Where a dwelling house made of bush materials is burnt down and at the time of torching it, there is no one either inside or around the house, nor force or threat is used or no inflammable substances is used and the arsonist acted alone 
and had no pre-planning to torch the house, the starting point would be 5 years imprisonment. The sentence may either go upwards where there are serious aggravating features present or downward when more mitigating factors are present. 

25.	In the present case it was pre-planned knowing that the occupants will be away in the church as it was their Sabbath day that no one would see him. The prisoner claimed to be a very committed Christian in that he holds some leadership positions in the church. Yet his action showed his unchristian like character. Taking into account that he is convicted after running a trial but not losing sight of the fact that he is the first time offender, and the aggravating features are less serious than in the case of Ipu Samuel Yomb (supra) and in Andrew Yeskulu (supra), I consider a sentence of 3 years imprisonment to be appropriate. 

Issue (iii): Whether it is an appropriate case to suspend the sentence wholly or in part? 

26.	The defence counsel relying on a number of decided cases submitted that the sentence be wholly suspended with conditions. He submitted that the present case is an appropriate case to suspend the sentence given the fact that the prisoner is not considered a risk to the community. This would serve as an alternative form of punishment outside the prison system that would assist the prisoner to rehabilitate and not to re - offend. He referred to The State v. Micky John Lausi (2001) N2073 (an armed robbery case), where Kandakasi J, restated the words of Muirhead J, in R v. Davey [1980] 2 a Cri. R 254: 

"imposing a suspended sentence is not an exercise of leniency . But it is a form of punishment that has the ability to achieve rehabilitation, which is one of the aims of criminal sentencing. It has the potential in appropriate cases, to serve, as a personal and general deterrence against other would be offenders". 

27.	The Prosecutor made no submission on this issue.

28.	The decided cases mentioned above which have more serious aggravating features than in the present case have their sentence either suspended wholly or partially. In Andrew Yeskulu (supra), Kandakasi J, wholly suspended the sentences of 7 years with strict terms including the rebuilding of the buildings and replacing their contents. And Justice Cannings, in James Wakis (2008) N3426 and Bernard Bambai (2006) N3019, wholly suspended the sentences of 6 years and 3 years respectively with conditions that the accused were to pay compensation within the period of 6 months. 

29.	 In other decided cases, sentences have been partly suspended. This court has the power to suspend sentence pursuant to section 19 (6) (b) of the Criminal Code. The offence was committed by a blood relative resulting from a land dispute. The suspension of sentence will not only be seen to rehabilitate the prisoner but it will also serve the purpose of restoring the biological relationship between them. Serving a term of imprisonment is likely to tear apart that relationship. I consider that this is an appropriate case to suspend sentence given the nature and the circumstance of the offence. 

30.	The court has the power to deduct the period of time in custody while awaiting the completion of the proceeding, pursuant to section 3 (2) of the Criminal Justice (Sentences) Act 1986. The prisoner was in custody from the time of his arrest on the 27th June to 28th July 2011before he was released on bail, then from 24th July to 19th October 2012. He has being in custody for a total of 4 months 3 weeks 4 days. I deduct that period from the head sentence. 

31.	The defence counsel submitted the court to defer sentencing until the land dispute between the prisoner and the victim is resolved. He relied on the decision of Kandakasi J, in The State v. Enni Mathew (No. 2) (2003) N2563 where the sentence was deferred and allowed the parties to resolve the land dispute. In the present case the land dispute is pending appeal before the National Court when the prisoner committed this offence. The prisoner did not consider following the law instead he took the law in his own hands and he committed the offence. Furthermore, where the court considers suspending a sentence, it is not appropriate to defer sentencing. I therefore refuse deferring the decision on sentence. 

SENTENCE

32.	This Court sentences you Langalen Yandan to a term of Three (3) years imprisonment in hard labour. Your pre-trial custody period of 4 months 3 weeks and 4 days is deducted from the head sentence. The balance of the sentence of 2 years 7 months 4 days is wholly suspended on CONDITIONS that: 

1.	You enter into a recognizance with surety of K300.00 to keep the peace and be on good behaviour bond for a period of 3 years.

2.	You are not to re - offend during the period of your good behaviour bond.
 
3.	You are to remain at your village Lamandaimanda in Wapenamanda District and nowhere else.

4.	You are to pay compensation of K3000.00 cash plus one matured pig to the victim Nyalan Lyokata within 6 months from the date of this order. 

5.	You are to provide building materials and build victim's house at your own costs at the place where the house was burnt down within 6 months from the date of this order. 

6.	You are not to harass, intimidate, threaten or assault the victim Nyalan Lyokata, her husband and her children.

7.	On breach of any of these conditions, you be arrested and returned to prison to serve the period of your suspended sentence in full. 

Ordered as above. 

_______________________________________

Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Prisoner.