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State v Suimeleng [2015] PGNC 157; N6055 (20 August 2015)

N6055

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NOS.171, 172 & 173 OF 2011

THE STATE

V

LUAP SUIMELENG, SUILOGO PASSINGAN & MARANG TIENPULES (N0.2)

Kavieng: Lenalia, J
2015: 18th & 20th August

CRIMINAL LAW – Arson – Sentence after a finding of guilty –Criminal Code, s.346, Ch. No. 262

CRIMINAL LAW – Arson cases – Sentencing principles – Sentences of 6 and 2 years imposed on each accused be served concurrently

Cases cited

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
The State-v-Akena Pawa [1998] PNGLR 387
The State-v-Andrew Yeskulu (2003) N2410
The State-v-Bernard Bambai (2006) N3019
State-v-David Kondave (2006) Cr. No. 1450 of 2006
Emil Kongian-v-The State (2007) SC928
The State-v-Ipu Samuel Yomb [1992] PNGLR 261
State-v-Karu Bisok & Gahu Kuru (2006) CR Nos. 42 & 43 of 2007
The State-v-Keith Kwelik (2011) N4335
The State-v-Mapi Mack (2010) N4100
Mase v The State [1991] PNGLR 88
The State-v-Prodie Akoi & Steven Akoi (2002) N2584

Counsel

Mr. R. Luman, for State
Mr. M. Mumure, for Accused

20th August, 2015

1. LENALIA, J: The three accused were found guilty on 18th this month for one count of arson an offence contrary to s.436 of the Criminal Code. The evidence upon which they were found guilty came from two eye witnesses John Tatas, and Huluris Darius. These two witnesses were on the scene at Magam village around about 10 am on 7th day of February 2010.

2. That day was a Sunday morning and the two witnesses were staying around in their houses resting. They were surprised when a group of men came around to their village and surrounded the two houses that were burnt. The owner of the houses Tunais Ngausep Liman was away attending the church service at Ranmelek United Church. While still in the church campus, he was informed that his houses had been totally burnt down with all personal effects.

3. Whilst resting in their houses, they saw the three accused amongst the group standing around the two houses, a dwelling house and a kitchen and one of the men set fire to both houses. Both houses were totally burnt down with all personal effects being destroyed and burned into ashes. In cross-examination, the two witnesses confirmed that they recognized the two accused on the scene and it was not a case of identification but recognition. The group stood around and watched the fire destroyed both houses. You three were together with two other persons and you three were caught by s.7 of the Criminal Code as principal offenders.

Addresses on Allocutus

4. When allocutus was administered to the three prisoners, all of them said, they would not say anything and would live it up to their lawyer address the court on sentence on their behalf.

Counsels Addresses on Sentence

5. The defence counsel Mr. Mumure addressed the court on what should be appropriate penalty. Counsel briefed the court on the prisoners' personal particulars. All three prisoners are married men with wives and children. Prisoner Luap Suimeleng is married with 1 year 8 months old child. He has 6 other siblings one a brother and 5 sisters. His parents are alive. Suilongo Passingan is also married with 2 children with the first born now 4 years and the other is 2 years old. His parents are alive. In case of Marang Tienpules, he is married with 1 child now 3 years old. He has 4 brothers and 1 sister. His parents are also alive. All offenders have not formal education.

6. Counsel referred to the Supreme Court case of Emil Kongian & 7 Others v The State (2007) SC928 where the appellants were convicted after a trial by the National Court. They were sentenced to terms between 13 and 15 years. There were four counts of arson. On appeal sentences were reduced to between 3 to 5 years. The other case referred to was The State v James Wakis (2008) N3426 where the offender was sentence to a similar offence as this one and sentenced to 6 years imprisonment but the penalty was fully suspended with conditions for compensation.

7. Mr. Luman counsel appearing for the State submitted in reply that the crime of arson is punishable by life imprisonment. He asked the court to consider aggravations such as there were no grudges between the owner of the two houses and the three prisoners. Counsel referred to some cases which the court will refer to a little later. Counsel submitted that since there were two crimes committed in the course of burning the dwelling house, sentence should be made concurrent.

Application of Law

8. The crime of arson is defined by s.436 of the Criminal Code in the following terms:

"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."

9. A word of caution to the three prisoners, the highest penalty you could get for the crime of arson is life imprisonment. This court has the power to sentence you to a term of years pursuant to s.19 of the Criminal Code. As well, Judges of the National Court are guided by sentencing principles set by the Supreme Court or decisions by other judges in similar cases although they are no binding on a sentencing judge.

10. In arson cases, Judges have often relied on the six (6) factors set by Doherty .J in The State v Ipu Samuel Yomb [1992] PNGLR 261. These factors are set out at 263 as follows:

"1. The deliberate or very reckless putting of lives at risk;

2. The deliberate or 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; and

6. The complete lack of provocation offered to the Defendant by the occupants and their children."

11. For example, in The State v Andrew Yeskulu (2003) N2410 Kandakasi .J discussed categories of sentencing guidelines which he considered appropriate to arson cases. In my view, these categories are an extension of categories set in the earlier case. According to the case above your case should fall into category 5 and 6. The facts show that you and the other two persons set fire to a bush material dwelling house and a nearby kitchen also built of bush material. The two authorities cited above and their decisions do not bind this court however, the law stated in those cases is good law as the provide consistency in the sentencing discretion of a Judge. Decisions by the Supreme Court are however binding on the National Court Judges.

12. In The State v Akena Pawa [1998] PNGLR 387, the prisoner burnt down a modern permanent house which included some modern appliances and goods, all worth approximately K85, 000. The prisoner was a young man, however the court did not extend the leniency one would expect in offences involving young offenders because the offence was pre-meditated and the prisoner gave four reasons to another person after he had burnt the house down as to why he burnt the house. The value of the house and goods destroyed and the intentional, pre-meditated actions of the prisoner were factors that determined the head sentence of four (4) years in hard labour.

13. In The State v Bernard Bambai (2006) N3019, the prisoner pleaded guilty to burning a State owned house which he was renting. The house was valued at about K36, 000.00. He was sentenced to three (3) years, execution of the sentence was delayed to allow restitution to take place and if not effected within that period, he was required to show because why he should not be immediately committed to custody to serve the suspended sentence.

14. In The State v Keith Kwelik (2011) N4335, a case in Wewak before Ipang AJ; (as he then was) the prisoner was sentence to a term of 7 years. Only 2 years were served as the rest of the sentence was suspended. In that case, on the 21 December, 2008 at around 1.00pm, the accused's brother namely George Kwaminingi was involved in a fight with another person namely Rex Pasikila and sustained some bodily injuries. The offender saw his injured brother and went to look for the person who assaulted his brother.

15. The offender went to the premises of Max Wukwemini and called out for Rex Pasikila and Max Wukwemini to go out for a fight. Both Rex Pasikila and Max Wukwemini did not go out and seeing that no one responded, the offender got hold of a container of kerosene, poured it on to the building and set it on fire. The building was completely burnt to ashes.

16. In The State v Prodie Akoi & Steven Akoi (2002) N2584 (CR No. 1431 of 2002). In that case His Honour Kandakasi, J imposed a head sentence of 10 years and partially suspended 5 years. In the case of State v Karu Bisok & Gahu Kuru CR Nos. 42 & 43 of 2007, where Cannings, J imposed six (6) years and four (4) years respectively. Again in State v David Kondave (2006) Cr. No. 1450 of 2006, Cannings, J imposed 10 years as head sentence and partially imposed six (6) years sentence.

17. In Emil Kongian & 7 Others 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. On 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.

18. The appeals against conviction were dismissed. Their appeals against sentence were allowed. Sentences of three to five years were substituted for each offender.

19. In State-v-Priscilla Piru (2010) N4221, Gavara-Nanu J imposed a sentence of 10 years on the offender who burnt the house of the victim who the offender and her family were living together with. In that case, the victim Mrs. Gordon and the offender had an argument. Mrs. Gordon was the mother-in-law of the prisoner. The prisoner misunderstood Mrs. Gordon's comments and she became angry and threatened to burn down Mrs. Gordon's house. The accused and her family were also living in that house. After making threats, the accused went and got dry coconut leaves lit them then set fire to Mrs. Gordon's house, resulting in the house and all its contents being burnt to ashes. The total value of the personal belongings for Mrs. Gordon and her children that were lost in the fire was estimated at K4, 462.00.

20. In The State v Mapi Mack (2010) N4100, a case in Tari, Hela Province before David; J the prisoner set fire to two company trucks over a land dispute with the company. The Moran Development Corporation was the owner of the two trucks worth K2, 496,000.00. The offender was sentenced to 8 years imprisonment.

21. A case similar to this case is that of The State v James Wakis (2008) N3426. In that case there was a long standing dispute between the two brothers over an oil palm block in West New Britain. The offender in that case got two other persons and they entered the house and assaulted the occupants then set fire to the dwelling house and an adjacent houseboy. A sentence of 6 years was imposed with orders for compensation and the whole sentence was suspended.

22. I have considered counsels' submissions on aggravations by the prosecuting counsel and extenuating circumstances submitted by the defence lawyer. I consider the fact that the offenders are charged with two crimes of arson. The accused committed a string of offences and the court is reminded of the sentencing principles on concurrent and consecutive sentences.

23. The principles require that, where there are a number of offences, sentences imposed should not just be straight forward additions which will result in unfairness being caused to an offender, but the total sentence must be just and fair in all the circumstances of the offences charged: Mase v The State [1991] PNGLR 88, (see also Acting Public Prosecutor v Konis Haha [1981] PNGLR 205.

24. The court is disabled as it does not know the value of the two properties that were burnt. I have no pre-sentence report or means-assessment report before me to consider compensation. The prisoners are sentenced in the following manner:

Count 1. Sentenced to a term of 6 years imprisonment.

Count 2. Sentenced to 2 year imprisonment concurrent upon Count 1.

25. The two sentences shall be served concurrently. The custody period shall be deducted and you three shall serve the balance.

_______________________________________________________________
The Public Prosecutor: Lawyer for the state
The Public Solicitor: Lawyer for the three Accused.