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State v Kosa [2018] PGNC 87; N7163 (22 March 2018)

N7163

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR N0. 950 OF 2017


THE STATE


V


PIUS PATRICK KOSA JNR


Kokopo: Susame, AJ
2018: 23 February & 22 March


CRIMINAL LAW – Sentence –Offence of arson- s. 436(a) Criminal Code – Sentencing guidelines on early plea –Range 10 years head sentence for dwelling houses & institutional buildings & 5 years head sentence for hauswin or garden house - Prisoner remorseful –Means assessment and pre-sentence reports – Compensation – Court’s power to order beyond the maximum limit set by Criminal Law (Compensation) Act 1991 – s 18 Probation Act – ss.155 (4) & 166 (1) Constitution - Burning down of income earning building – head sentence of 7 years – wholly suspended upon probation with conditions – Prisoner to be recalled for review of sentence -


Cases cited:


Emil Kongian & ors v The State (2007) SC982
State v Ipu Samuel Yomb [1992] PNGLR26
The State v Seye Wasea Bukere (1999) N1848
The State v Joachim N6537 (2014)
The State v Yeskulu (2003) N2241
The State v Bart Kiohin Mais & Anor (2005) N2811
The State v Ngot Ngot & Eremas Mutiul (2016) N6364


Counsel:


Ms. J. Batil, for the State
Ms. J. Ainui, for the Prisoner


DECISION ON SENTENCE


22nd March, 2018


  1. SUSAME, AJ: The prisoner has pleaded guilty to a charge of arson on arraignment of an indictment on 23rd February 2018 charging him. He was charged that on 10th April 2017, he had wilfully and unlawfully set fire to Jecil Fuel Distributors Depot building owned by Stanley Gogorea at Palmalmal, East New Britain Province.

FACTS


  1. The facts agreed by the prosecution and defence are that prisoner was then working for Jecil Fuel Distributors. Between 1pm and 2pm on 10th April 2017, the prisoner walked into the depot premises, pumped diesel from a drum into a 20 litres container. He poured the diesel in and around the building. He took some pieces of wood and pushed them under a table inside the building. He then rolled up a piece of paper, lit it with a match and started the fire under the table. The fire spread throughout the whole building burning down everything into ashes.
  2. Those facts were put to the prisoner on arraignment. I entered a provisional plea and had to read the evidence in the committal file. I was satisfied the evidence in the file covered all elements of the charge and that the prisoner had made confessional statements committing the crime. Accordingly, I found the prisoner guilty of the charge and entered conviction against him.
  3. Ms. Ainui then sought adjournment for filing of Means Assessment Report, pre-sentence report and filing of submissions on sentence. Adjournment was granted for hearing of submission on 9th March 2018. However, because pre-sentence report and means assessment report were not completed in time hearing of submissions was put off to 13th March at. 9.30 am. All documents have been filed and in order when matter returned to court on 13th March. Decision on sentence was deferred which is now delivered.

ARGUEMENTS


  1. Court has read and heard respective submissions filed. Again both counsels have assisted the court well with comparative decisions and factors to consider in reaching a decision.
  2. Miss. Batil submitted though there are mitigating factors, factors in aggravation should be given more weight. Hence, a punitive and deterrent sentence should be imposed and in the light of sentencing trend starting point of 10 years would be appropriate in this case.
  3. Ms. Ainui for the prisoner argued otherwise. She submitted factors in mitigation outweigh the aggravating factors. This case involves burning down of a makeshift temporary building and does not fall within worse category of arson cases. Starting point should be 5 years following State v Ipu Samuel Yomb [1992] PNGLR 26. This case involved building down of a dwelling house with occupants inside but managed to escape alive. She however pleaded for the prisoner for a sentence of 4 years to be imposed and wholly suspended with conditions in view of the mitigating factors favoring the prisoner.

COMPARABLE JUDGMENTS


  1. In addition to State v Ipu Samuel Yomb (supra) other plea cases counsels made reference to are:

SENTENCING GUIDELINES


  1. I have read the cases that were referred to above. The case that first attempted to establish some guidelines on arson cases was in The State v Ipu Samuel Yomb by Doherty J in 1992. These factors were considered:
    1. The deliberate or reckless putting of lives at risk
    2. The deliberate 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 to the occupants
    6. The complete lack of provocation offered to the defendant by the occupants and their children
  2. Her Honour thought 6 to 7 years head sentence could have been imposed but considering the prisoner’s plea and good behavior a 5 years custodial sentence was imposed.
  3. In The State v Yeskulu (supra) when His Honour Kandakasi J after critically examining the sentencing trend and echoing the need for increasing sentencing tariffs on account of increasing instances of arson cases in recent times decided sentencing prisoners will also depend on the types of buildings destroyed. These are:
    1. A dwelling house with people inside
    2. A dwelling house without any occupants
    3. Public institutions such as school. hospital, or offices with occupants
    4. Public institutions such as school. hospital, or offices without occupants
    5. A haus wind (rest hut) or garden house or a run-down or dilapidated or incomplete house
  4. His Honour proceeded to impose a 7 years jail term which was wholly suspended and prisoner placed on Probation with conditions considering prisoner’s favourable report.
  5. Then in 2005 His Honour Cannings J in The State v Bart Kiohin Mais & Anor (supra) expounded the guidelines and formulated the following questions:
    1. Did the offender cause damage of relatively low value?
    2. Was there no person or class of persons directly affected by the damage or destruction of the property?
    3. Did the offender not put lives at risk?
    4. Was there only one offender?
    5. Did the offender not plan the offence in a deliberate and calculated manner?
    6. Did the owner of the property or any person provoke the offender in the non-legal sense?
    7. Was it an isolated incident?
    8. Did the offender give himself up after the incident?
    9. Did the offender cooperate with the police in their investigations?
    10. Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did
    11. Has the offender not caused further trouble since the incident?
    12. Has the offender genuinely expressed remorse?
    13. Is this his first offence?
    14. Can the offender be regarded as a youthful offender?
    15. Are there any other circumstances of the incident or the offender that warranted mitigation of the head sentence?
  6. His Honour imposed a sentence of 2 years.
    1. A survey of cases revealed that sentencing on plea cases range from 3 to 8 years of all categories of arson cases. Finally, a three (3) men bench of Supreme Court in Emil Kongian & ors v The State (2007) SC982 in deliberating on an appeal against conviction and sentence by His Honour Kandakasi J in the National Court endorsed and approved His Honor’s views and decided that for burning of a dwelling house or public institution buildings head sentence of 10 years should be imposed and 5 years sentence for burning of a hauswin or a garden house.

OFFENCE & PENALTY REGIME


“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.”


AGGARVATION FACTORS


➢ Prisoner deliberately set alight the fuel shed by using diesel fuel.
➢ Value of the Fuel shed & various properties destroyed is estimated at K30, 600.20.
➢ No restitution or payment of compensation made and reconciliation.

MITIGATING FACTORS


➢ Prisoner pleaded guilty
➢ Prisoner is first time offender
➢ Prisoner lived a trouble free life in the community.
➢ Prisoner voluntarily surrendered and cooperated with police
➢ Complainant provoked (not in strict legal sense) the situation by his continuous neglect in not resolving the outstanding rental payments and employee wages.

ALLOCUTUS


  1. Prisoner stated the company his employer leased their land under a lease agreement. But they breached the terms of the lease agreement. They never benefited, it was for that reason he set alight the depot. He expressed it was his first time in court and was sorry to the court and the complainant. He asked for leniency.

MEANS ASSESSMENT & PRE SENTENCE REPORTS


  1. I note certain matters raised in the reports. From information provided the owner of the property is Stanley Gogorea first cousin to the prisoner’s mother. Prisoner is his nephew. Stanley never made any attempts to travel over from Lae to iron out issues of outstanding rental payments and review the lease agreement despite his undertakings. Complainant preferred a non-custodial sentence prisoner placed on Probation with stringent conditions one of which was payment of compensation. Prisoner’s father was murdered over dispute on the same land. Payment of wages have been quite consistent except for instances of network issues that caused delays for payment of wages on time.

COMPENSATION


  1. Estimated loss to complainant’s property is worth K30, 600.20. That fact is accepted by the court. Complainant and Prisoner are family relatives. There has not been any reconciliation to restore their broken relationship as a result of the crime. No compensation has been paid. Though there is willingness to pay compensation by the prisoner. Complainant has also stated that prisoner must be ordered to pay compensation to the amount of K30, 600.20 as condition of probation sentence.
  2. In the unnumbered cases of The State v Kevin Amba & State v Peter Anis in my discussion I made mention that Court’s power to make compensation order is derived from the Criminal Law (Compensation) Act 1991. I also made mention that the maximum amount that can be ordered as compensation is K5, 000.00 by virtue of Section 5 of the Act.
  3. I go one step further and make these observations. If the loss exceeds the K5,000.00 limit like in this case or if the injury is serious and court is considering a fair bit of compensation beyond K5 000.00 limit under the Act, is the court’s power limited by s.5 of the Act?
  4. His Honour, Anis AJ (as he then was) made some observations on that very issue in The State V Ngot Ngot & Eremas Mutiul (2016) N6364 in response arguments advanced by the lawyers and I quote:

“I take issue with these submissions on two basis. Firstly, I note and acknowledge that the maximum compensation that is payable under the Criminal Law (Compensation) Act is K5, 000 [i.e., under the section 5(3) (b)]. But the question I have is this: Whether the K5, 000 is payable per prisoner. I note that the Criminal Law (Compensation) Act is silent or not clear on this point. But when I turn to the case law, I see that courts have exercised their powers under the Criminal Law (Compensation) Act and have awarded compensation at K5, 000 or less per prisoner to the same victim. In the end, the total compensation paid under the Criminal Law (Compensation) Act would exceed K5, 000 [see cases: State v. Anos Naime Maraga (2002) N2433; State v Angaun Kakas, KakaliaTulu, Sukulin Passomb and Kalain Kula (1994) N1219]. Secondly, I note that apart from the Criminal Law (Compensation) Act, this Court also has powers under section 18 of the Probation Act Chapter No. 381 (the Probation Act) to award compensation beyond K5,000 [see cases: State v. Balthazar Basan (2012) N4896; State v. James Dar (2015) N6106].


For the present case, this Court will not confine itself under the maximum compensation limit set by the Criminal Law (Compensation) Act. This Court will invoke its powers under section 18(1) (b) and (e) of the Probation Act.”


  1. His Honour sentenced the prisoners to 5 years, wholly suspended upon probation and ordered each of the prisoner to pay K6, 000.00 compensation with 200 fathoms of traditional tolai shell money (equivalent to K1,000.00) for physical injuries complainant suffered.
  2. In The State v. Kianu Kikimbe (2016) N6180 His Honour Cannings J imposed a sentence of 8 years sentence against the prisoner on a charge of arson and suspended the entire sentence upon probation. As a condition prisoner was ordered to pay compensation of K179, 800.00 for the loss of a fuel refilling truck. It is noted His Honour did not consider the compensatory provision in the Criminal Law (Compensation Act) and went over and above the maximum limit in that Act.
  3. His Honour in sentencing the prisoner considered it is a serious case of arson when offender targets a person’s income earning assets.
  4. I agree with His Honour Anis AJ in The State v Ngot Ngot & Eremas Mutiul (supra) and in addition I say this. Criminal Law(Compensation) Act is one piece of legislation the court derives its power to award compensation. The other is the Probation Act which does not specify any amount of compensation to be ordered. Section 18 of the Act gives general power to courts to make compensation orders.
  5. Furthermore, this court has inherent and unlimited jurisdiction vested by Sections 155 (4) & 166 (1) of the Constitution to make “such other orders as are necessary to do justice in the circumstances of a particular case”. That means that this court can make compensation awards over and above the limit set by s. 5 of the Criminal Law(Compensation) Act in doing justice in addition to the penalty court imposes as was in the two cases alluded to.

COURT’S VIEW ON SENTENCE


  1. Sentencing is one of the important mandated task of the court. The particular offence prisoner has been convicted for attracts a maximum sentence of life imprisonment subject to s.19 of the Code.
  2. Court has discretion under s.19 to consider a lesser sentence if maximum is not considered depending on the circumstance of the case. It is well settled principle of law of sentencing that the maximum sentence is reserved for the worst case scenario. (See; Golu Golu v The State [1988-89] PNGLR 653Taiba v Maima v Sma [1971-1972]PNGLR49 & Paia Lifi v Phillip Dege (1981) N291 just to list a few)
  3. Circumstances of this case do not call for the maximum sentence to be imposed. What sentence should this court impose on the prisoner then? I am guided by the sentencing factors in The State v Yeskulu & State v Bart Kiohin Mais & Anor and respectfully adopt them.
  4. I accept that prisoner is a first time offender. He is a person generally of good behavior in the community. He has expressed remorse and has offered to pay compensation. That is also what his uncle wants. Prisoner committed the offence alone at broad daylight, not by secretive means but under the watchful eyes of his fellow workers. No lives were put at a real risk when the fuel depot shed was set alight. No person(s) were inside except couple of workers who were present at the shed and left the depot when sensing what the prisoner was up to and they watched the building burnt down from a distant.
  5. The act by the prisoner is of course criminal. Fair enough the prisoner had an unresolved disputed with his uncle over the land lease agreement. Legal process are there in our modern society for peaceful settlement of disputes if attempts for out of court settlement have failed. As a matter of fact dispute is never resolved by resorting to a criminal act. The situation is aggravated and compounded.
  6. Factor that goes against the Prisoner is that the shed that was set alight was not an ordinary shed, rest hut or a shelter which would attract a 5 years sentence as was set by the Supreme Court in Emil Kongian & ors v The State (supra). It was a fuel Depot where complainant conducts business to earn income. As a result complainant had lost cost property estimated at a value of K30 600.20. That is substantial and prisoner must be made to pay for this in addition to the penalty this court shall impose. Miss. Batil has asked the court to impose a 10 year custodial sentence.
  7. This is not a case in which a dwelling house or a public institution building was burnt down to attract such a sentence as per the Supreme Court decision in Kongian’s case. So, 10 years jail term is not considered as appropriate. In my respective view this a case I should impose a sentence couple of years above the 5 years mark imposed for ‘hauswin’ and ‘garden haus’ category of cases.

SENTENCE


  1. Accordingly, a 7 years jail term is imposed upon the prisoner less 10 months pre-sentence period in custody. Considering the mitigating factors favourable to the prisoner the balance of sentence is wholly suspended and prisoner placed on probation for the entire period. These additional conditions are ordered for strict compliance:
    1. Prisoner to report to Senior CBC Officer at Kokopo immediately upon release to finalize a supervision and monitoring program, and he shall not return to Palmalmal Pomio, ENBP without the expressed approval of the court in consultation with the CBC Officer.
    2. Prisoner to arrange a reconciliation gathering between his family and the complainant and his family to be witnessed by a Church Pastor, Local Ward Member, Village Magistrate and CBC Officer in which he must pay 2 ‘PAGE’ traditional shell money of the Pomio people equivalent to K1000.00 value, plus one pig worth K800.00 and food stuff worth K200.00.
    3. Reconciliation ceremony to be conducted within period of 3 months and prisoner to report to CBC Officer, Kokopo for a report to be furnished to the court for the progress of order No. 2.
    4. Copies of report to be made available to lawyers representing the State and the prisoner and prisoner to appear with his counsel when matter returns to court for check on compliance of order No.2 at. 9:30am on 27th June 2018.
    5. Prisoner to pay compensation of K30, 600.20 or any amount lesser to be mutually accepted for the loss complainant suffered within space of one year.
    6. Prisoner is restraint from consumption of all forms of alcoholic drinks and illicit drugs.
    7. Prisoner is restrained from using threatened or actual violent behavior to the complainant and any member of his family and he is to maintain peace at all times in the community.
    8. Prisoner to report to Senior CBC Officer, Kokopo, ENBP for a report to be furnished for review of sentence and copies made available to lawyers representing the State and Prisoner.
    9. Prisoner to appear with his lawyer for review of sentence at 9.30am on Wednesday 6th February 2019.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

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