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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No.127 of 2011
BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
AND:
TAIANA PAKUPI
Prisoner
Tari: David, J
2012: 6 & 8 June
SENTENCE – attempted arson – a twin engine Chinook Columbia helicopter – kerosene used to set helicopter alight from rear – explosion would have caused major disaster - image of country tainted - helicopter valued at US$2.5 million – total loss to owner as a result of damage to helicopter was US$31,060.00 – helicopter used in Hides Gas project - pre-meditation – act of sabotage hindrance to development - guilty plea – entering project site unlawfully – not a youthful offender – nothing tangible done towards repairing wrong – apprehended during dawn raid - first time offender – co-operation with police – de facto provocation – minimal damage to helicopter – acted alone – no one in helicopter to put lives at risk – until offence good background - prisoner a 22 year old traditional subsistence villager, illiterate and lacks sophistication – isolated incident – no evidence of further trouble caused by prisoner's relatives at the project site – offence committed in the night – no expression of remorse – deterrent sentence serving both as personal and general deterrence against other would-be offenders required - sentence of 3 years IHL – custodial sentence - ss. 19 & 437 (a) Criminal Code.
Facts:
A young man pleaded guilty to attempted arson. Armed with a 500 millilitres coke bottle containing kerosene, a box of matches and scrap paper he approached a Twin Engine Chinook Columbia helicopter parked at a helipad at the Nogoli Hides Gas Project Site, poured the kerosene on the rear opening of the helicopter, struck a match, lit the scrap paper, set the helicopter alight and escaped. The fire was quickly put out by security guards and crew of the helicopter.
Held:
1. Mitigating factors are: pleaded guilty; first-time offender; co-operation with police; de-facto provocation; minimal damage caused to helicopter; acted alone; isolated incident; no one in the helicopter; until offence prisoner had a good background; unsophisticated subsistence villager with no formal education; and no further trouble.
2. Aggravating factors are: dire financial consequences if helicopter, expensive equipment totally incinerated; total cost of repairs high; explosion would have caused major disaster; act of sabotage; setting fire deliberately with kerosene; conduct prevalent; conduct hindrance to economic development and painted bad image of country internationally; pre-meditation; entry unlawful; offence committed in the night; did not give himself up; and not a youthful offender.
3. A sentence of 3 years was imposed.
4. The pre-sentence period in custody of two years was deducted from the sentence.
Cases cited:
The following cases are cited in the judgment:
Public Prosecutor v Don Hale (1998) SC564
Edmund Gima and Siune Arnold v The State (2003) SC730
The State v Titus Kep (2004) N2616
The State v Scott Lalio (2006) N2967
The State v Sylvester Heai Evore (2006) N3236
Richard Liri v The State (2007) SC883
The State v John Telape (2009) N3815
The State v Mapi Mack (2010) N4100
The State v John Jewari, CR No.385 of 2010, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 18 October 2011
Counsel
Joe Kesan, for the State
Mwagawa Mwawesi, for the prisoner
SENTENCE
8 June, 2012
1. DAVID, J: This is a decision on sentence of a young man who was charged for one count of attempted arson under Section 437 (a) of the Criminal Code and convicted after pleading guilty.
2. The depositions contain evidence that support the charge.
3. The principal documents comprising the depositions are as follows:
4. The offence arose from the following short facts. On 7 June 2010 between 7:30 and 8:00 o'clock in the evening, the prisoner was at the Nogoli Hides Gas Project Site (the Project Site), Komo District, Hela Province in Papua New Guinea. At the time, a twin engine Chinook Columbia helicopter bearing registration number P2-CHI owned by an American company called Columbia Helicopters Limited was parked at a helipad on the Project Site. The accused had in his possession a 500 millilitres coke bottle containing kerosene, a box of matches and scrap paper. He jumped over the perimeter fence, walked over to the rear of the helicopter, poured the kerosene on the rear opening of the helicopter, struck a match and lit the scrap paper, then set the helicopter alight and escaped. The fire was quickly put out by security guards and crew of the helicopter.
5. The value of the helicopter was estimated to be US$2.5 million.
6. The incident cost Columbia Helicopters Limited about US$31,060.00 to fix the damage caused to the helicopter and by way of loss of revenue. The short details are; US$28,310.00 for loss of revenue and cost of ferrying the helicopter from Nogoli to Moro in the Southern Highlands Province for repairs; US$2,550.00 for cost of bringing in aviation engineers to inspect and repair the damage caused to the helicopter; and US$200.00 for cost of labour and supplies such as stripper and paint.
7. The helicopter was one of 2 Columbia Chinook helicopters operating under a contract with Oil Search Limited at the Kutubu oil field and Hides Gas at Nogoli. At the time of the incident, no one was in the helicopter and it had about 3000 litres of fuel on board.
8. In his allocutus, the prisoner only said he wished to be released from custody.
9. The prisoner has no prior convictions.
10. The prisoner originates from Nogoli village, Komo in the Hela Province. He comes from a large family. His father has 7 wives. He is married with one young child who is now about 3 ½ years old. He was aged about 20 years when he committed the offence. He has not received any formal education and is therefore illiterate. He was living in the village as an ordinary villager and subsistence farmer up until this offence was committed. His parents are alive. He has been in custody since 8 June 2010 and that works out to be 2 years exactly.
11. Mr. Mwawesi of counsel for the prisoner submitted that factors that go to mitigate the offence in the present case are these:
1. the prisoner pleaded guilty.
2. the prisoner was not a habitual criminal, but a first time offender.
3. the prisoner co-operated with police investigations by making early admissions.
4. the offence was committed as a direct result of frustrations that had compounded over time because the stakeholders of the Hides Gas project were not addressing, to the satisfaction of traditional landowners which included the prisoner's family, issues concerning royalty payments for traditional land used in the Hides Gas project including the land where the helipad was constructed and the prisoner's real intention was to make a stern statement by his conduct.
5. minimal damage was caused to the helicopter.
6. repair costs were minimal.
12. Mr. Mwawesi referred me to a decision on sentence delivered by Mogish, J recently this year in The State v Simon Zera which he said was similar to the present case. He invited me to consider and be guided by the decision in determining an appropriate sentence for the prisoner. Counsel said in that case, the prisoner was charged with one count of attempted arson under Section 437 (a) of the Code for setting fire to grass outside the refinery at the Napanapa plant situated outside Port Moresby which spread quickly, but was put out before it reached the refinery averting what might have become a major disaster. In his allocutus, the prisoner said the relevant stakeholders had not settled their claims that went as far back as year 2010 for cash crops destroyed when land was cleared to construct the refinery despite being reminded constantly. In sentencing the prisoner for a period of less than 14 years imprisonment, His Honour emphasised that land was an important resource to Papua New Guineans, counsel said. I have not had the benefit of reading the judgment if a written one had been published to confirm the brief details counsel has alluded to as counsel did not have a copy.
13. Mr. Mwawesi submitted that the time spent in pre-sentence custody by the prisoner was appropriate punishment. Alternatively, counsel further submitted that an appropriate sentence that best befits the crime, but which was less than the maximum penalty should be imposed with suspension on terms to be considered.
14. Mr. Kesan for the State submitted that the presence of a number of serious aggravating factors warranted a deterrent sentence of between 3 and 5 years to be imposed. These were:
15. Mr. Kesan invited me to consider and be guided by a number of decisions of the National Court involving the offences of arson, attempted arson and wilful damage of property in considering an appropriate sentence for the prisoner in the present case. These are; The State v Scott Lalio (2006) N2967; The State v Sylvester Heai Evore (2006) N3236; The State v John Telape (2009) N3815; The State v Mapi Mack (2010) N4100; and The State v John Jewari, CR No.385 of 2010, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 18 October 2011.
16. In Scott Lalio, a young man was convicted after pleading guilty to one count of attempted arson. Acting alone, he entered the premises of the Policewomen's Barracks in Newtown, Madang town in the early hours of the morning by removing timber from the fence surrounding the Barracks. He then ripped off the flywire around the dining area and set fire to a curtain. That caused a cushioned chair to catch fire. No major damage was done. He was drunk at the time. Some policewomen woke up and put out the fire. He escaped, but was apprehended early the next day. A sentence of 3 years imprisonment was imposed.
17. In Sylvester Heai Evore, 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 pre-trial custody. The balance of the term was suspended with conditions.
18. In John Telape, the prisoner was convicted on a plea of guilty to a charge of wilfully and unlawfully destroying two steel power pylons the property of Barrick (Niugini) Pty Lt, the Manager of the Porgera Joint Venture contrary to section 444 of the Code. The prisoner said he destroyed the power pylons because he was upset, that he and his family had not received compensation for several years on whose land the power pylons were built. Stay wires cut and base stand bolts were cut causing one pylon to fall to the ground while the other fell to one side, but not to the ground. Factors taken as aggravating the offence there were the consequences of the conduct of the prisoner and the impact of his conduct not only at the local level, but at the national level as well. The destruction of the power pylons prevented electrical power being provided to the Porgera region including the gold mine and township. Power was cut for 7 days. The Porgera Mine lost revenue when the mine was shut down and it incurred additional costs when it used diesel fuel to power generators as alternative source of power. Others in the region including employees of the mine also suffered. It cost K394,842.00 to repair and restore the fallen power pylons. Factors treated as mitigating the offence there were the early admissions and plea of guilty. The Court regarded the case as being the worst kind for the offence therefore imposed the maximum penalty of 7 years imprisonment which was partly suspended on terms.
19. In Mapi Mack, the prisoner was indicted with two counts, the first count was for attempted murder and the other was for arson, for wilfully and unlawfully setting fire to two dump trucks worth over K1 million each in July 2008 at Kutubu contrary to Section 436 (f) of the Code. The prisoner pleaded not guilty to the first count. That count was dismissed upon the State electing to offer no evidence. As to the charge for arson, the prisoner was convicted after pleading guilty. The prisoner was a member of a clan involved in a long-drawn-out dispute with another clan over the North West Moran land at Kutubu. The dispute was litigated in the National Court at Waigani. The Court delivered a judgment in favour of granting the land to the other clan. That meant that the prisoner's clan would not benefit from any benefit or royalties paid in connection with the use of the land or developments conducted on the land. Aggrieved by the decision, a meeting was conducted by a leader of the prisoner's clan in the evening at which the prisoner attended where they resolved to kill anyone found on the land and burn any machine or equipment working on the Homa-Tari road. Armed with a shotgun and a container of petrol, the prisoner and others then set out to carry out what was agreed to at that meeting and proceeded to North West Moran 14. There, the prisoner shot at two employees of Oil Search Ltd stationed there. The prisoner then with the assistance of others chased the workers away, poured petrol all over the two dump trucks parked there and set them alight. The two trucks, each valued at over K1 million were completely incinerated. I sentenced the prisoner to 8 years imprisonment in hard labour, partly custodial and non-custodial.
20. In John Jewari, the prisoner was convicted on a plea of guilty to a charge of wilfully and unlawfully destroying a steel power pylon, its associate supports and conductors at Tiguali, Tari contrary to section 444 (1) and (9)(i) of the Code. The prisoner and his accomplices cut with hacksaws power pylons which hold power lines high above the ground that supply power from the Hides Gas Power Station in the Hela Province to the Porgera Mine Site in the Enga Province. That disrupted power supply to the Porgera Mine Site. In his allocutus, the prisoner said he cut the pylon because he was frustrated over non-payment of compensation by Porgera Joint Venture for the installation of the pylon on his land. It cost about K213,469.34 to repair and restore the fallen power pylon. I imposed the maximum penalty of 7 years imprisonment in hard labour less the pre-sentence custody period and suspended 3 years and 6 months on terms.
21. I find that the factors which mitigate the offence in the present case are these:
1. the prisoner pleaded guilty therefore saving the Court time and resources to conduct a trial to determine his guilt.
2. the prisoner is not a habitual criminal, but a first offender.
3. the prisoner co-operated with police investigations by making early admissions.
4. there was de facto provocation considering the action of the prisoner was driven by unresolved landowner issues with the stakeholders of the Hides Gas project.
5. minimal damage was caused to the helicopter.
6. the prisoner acted alone.
7. it was an isolated incident.
8. no one was in the helicopter at the time of the incident for their lives to be put at risk.
9. until committing the offence, the prisoner had a good background.
10. the prisoner is an unsophisticated traditional subsistence villager with no formal education.
11. there is no evidence to suggest that the prisoner or his relatives for that matter have caused further trouble at the Project Site.
22. There was no expression of remorse. I will treat that as a neutral factor.
23. I find that the factors which aggravate the offence in the present case are these:
24. What is an appropriate sentence for the prisoner?
25. Section 437 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 a term not exceeding 14 years. A lesser determinative term could be imposed in the exercise of the Court's discretion by virtue of Section 19 of the Code. This discretion is exercised upon consideration of both the mitigating and aggravating factors present in a particular case. Section 437 states:
"A person who—
(a) attempts unlawfully to set fire to any thing referred to in Section 436; or
(b) wilfully and unlawfully sets fire to any thing that is so situated that any thing referred to in Section 436 is likely to catch fire from it, is guilty of a crime.
Penalty: Imprisonment for a term not exceeding 14 years."
26. Under Section 436 (f) of the Code, a person who wilfully and unlawfully sets fire to an aircraft is guilty of a crime. A helicopter is an aircraft without wings.
27. As I have indicated earlier, the type of conduct demonstrated by the prisoner is prevalent in that it was typical for landowners throughout the country to disrupt operations of developers of natural resources through unlawful means to force the developers to address their grievances whether such grievances had merit or not.
28. Serious offences such as arson, attempted arson, aggravated robbery and the like are an affront to the economic development of the local community, 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 have taking that factor into account in the present case.
29. The courts have issued stern warnings that those who disrupt major projects of local, provincial or national significance can expect to receive the maximum sentence prescribed by law and those who fail to take heed of these warnings as the prisoner has done cannot say they have not been warned: see The State v Titus Kep (2004) N2616; John Telape as examples.
30. It is a commonly held principle of law in this jurisdiction that the maximum prescribed penalty should always be reserved for cases of the worst category for a particular offence. The aggravating factors slightly outweigh the mitigating factors. However, I consider that the present case does not fall in the worst category for this offence. A sentence serving both personal and general deterrence against other would-be offenders is required in the present case.
31. Having taken into account all of the circumstances of the present case, the submissions of counsel and the comparable sentences put before me, I have considered that a sentence between three and five years was appropriate. In the exercise of my sentencing discretion under Section 19 of the Code, I sentence the prisoner to three years imprisonment in hard labour to be served at the Bui-iebi Correctional Institution. The prisoner has been in pre-trial custody for two full years. I will deduct the pre-trial custody period and that will leave one full year for the prisoner to serve (the balance of the sentence).
32. Should I suspend the whole or any part of the balance of the sentence? The Supreme Court has held that there can be no suspension of sentence without the support of a Pre-sentence Report: Public Prosecutor v Don Hale (1998) SC564; Edmund Gima and Siune Arnold v The State (2003) SC730; Richard Liri v The State (2007) SC883. No Pre-sentence Report has been compiled by the Probation Service. I am therefore unable to consider suspending the whole or any part of the balance of the sentence.
33. I order that an appropriate warrant be issued forthwith to give effect to this sentence.
_____________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyers for the prisoner
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