Emil Kongian, Basil Singawi, Dennis Nopi, Freddy Kam, Henni Mathew, Jack Kam, Jeffrey Winjat and Roger Gisa v The State (2007) SC928

• Jurisdiction: Papua New Guinea
• Judge: Jalina J, Mogish J, Cannings J
• Judgment Date: 03 September 2007
• Docket Number: SCRA NO 92 0F 2003
• Citation: (2007) SC928
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC928

Full Title: SCRA NO 92 0F 2003; Emil Kongian, Basil Singawi, Dennis Nopi, Freddy Kam, Henni Mathew, Jack Kam, Jeffrey Winjat and Roger Gisa v The State (2007) SC928

Supreme Court: Jalina J, Mogish J, Cannings J

Judgment Delivered: 3 September 2007

SC928

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 92 0F 2003

BETWEEN

EMIL KONGIAN, BASIL SINGAWI, DENNIS NOPI,

FREDDY KAM, HENNI MATHEW, JACK KAM,

JEFFREY WINJAT AND ROGER GISA

Appellants

AND

THE STATE

Respondent

Wewak: Jalina J, Mogish J, Cannings J

2006: 26 April,

2007: 3 September

CRIMINAL LAW – indictable offences – arson – burning down of dwelling houses – group raid – appeals against convictions and sentences.

CRIMINAL LAW – indictable offences – unlawful deprivation of liberty – appeals against convictions and sentences.

CRIMINAL LAW – sentencing – need to follow well established principles when determining whether sentences to be served concurrently or cumulatively.

The National Court convicted the appellants of four counts of arson and one count of deprivation of liberty. They were sentenced to total terms of imprisonment of between 13 and 15 years each. They appealed against conviction and sentence. They argued (1) as to the arson convictions, that the trial judge failed to take into account that they were provoked; (2) as to the deprivation of liberty convictions, that the guilty finding was against the weight of the evidence; and (3) as to the sentences, that they were excessive.

Held:

(1) Provocation is not a defence to arson and the trial judge made no error of law in convicting the appellants.

(2) A trial judge is in the best position to weigh the evidence. Though there was a greater quantity of evidence in favour of the accused, the trial judge was entitled to enter a conviction for unlawful deprivation of liberty based on acceptance of the evidence of the complainant. The trial judge made no error of law in convicting the appellants.

(3) The trial judge made identifiable errors when exercising discretion as to sentence, concerning:

· the head sentences for arson;

· the determination that the arson offences be sentenced cumulatively;

· the determination that the unlawful deprivation of liberty sentences be served cumulatively to the arson sentences; and

· application of the totality principle.

(4) Such errors had the effect of vitiating the sentences.

(5) Accordingly, the appeals against the convictions were dismissed but the appeals against sentences were allowed. The sentences passed by the National Court are quashed and substituted with sentences of three to five years for each offender.

Cases cited

The following cases are cited in the judgment:

Mase v The State [1991] PNGLR 88

Public Prosecutor v Kerua [1985] PNGLR 85

The State v Andrew Yeskulu (2003) N2241

The State v Enni Mathew and Others (2003) N2563

The State v Inawai Moroi [1981] PNGLR 132

The State v Robin Warren and Others (2003) N2418

William Norris v The State [1979] PNGLR 605

APPEALS

These were appeals against conviction and sentence for arson and unlawful deprivation of liberty.

Counsel

E Kongian, in person, for himself and other appellants

P Kaluwin, for the respondent

28 June, 2007

1. BY THE COURT: This is an appeal against conviction and sentence by the National Court of eight men from Mamari village, East Sepik Province. They were jointly tried and convicted of four counts of arson and one count of unlawful deprivation of liberty. There was another man, Leonard Mambu, who was tried, convicted and sentenced with them. He was also an appellant but has escaped from custody and we have dismissed his appeal.

2. The arson convictions were for burning down four dwelling houses at a place called Kumbimeri. The houses belonged to people from Sangriman village, about 6 km from Mamari. The other conviction was for unlawfully detaining a young Sangriman man, Damien Dombi, against his will. The trial judge found that all offences were committed on 2 October 2001, following ongoing land disputes and ill-will between the people of Mamari and Sangriman villages.

3. In addition to the four arson charges of which they were convicted, the appellants were indicted on eight other arson charges relating to school classrooms, dormitories and teachers houses. They were acquitted of those eight charges.

4. They were convicted after a four-day trial in June 2003 and sentenced in October 2003. They were sentenced to total terms of imprisonment of between 13 and 15 years each, depending on their degree of involvement, their status in the community and their age.

5. On 27 November 2003 they each gave notice of an appeal. That was within the 40-day period permitted by Section 29(1) of the Supreme Court Act. We are satisfied that the appeal is properly before the court.

THE GROUNDS OF APPEAL

6. There are three grounds of appeal. The first two are against the convictions. The last is against the sentences. The appellants argue (1) as to the arson convictions, that the trial judge failed to take into account that they were provoked; (2) as to the deprivation of liberty convictions, that the guilty finding was against the weight of the evidence; and (3) as to the sentences, that they were excessive.

7. The issues we must determine therefore are:

(1) Did the trial judge err in entering any of the convictions for arson?

(2) Did the trial judge err in entering convictions for unlawful deprivation of liberty?

(3) Are the sentences excessive?

DID THE TRIAL JUDGE ERR IN ENTERING ANY OF THE CONVICTIONS FOR ARSON?

8. The appellants admitted at the trial that they had, in fact, attacked Kumbimeri and burned down a number of garden houses and a hauswin belonging to people from Sangriman. They each gave evidence that the reason for doing that was that they were provoked by a Sangriman man, Otto Simon, who was observed making his garden on the right side of the Krosaameri River, contrary to a Local Land Court decision. Ownership of the land in their area had been the subject of ongoing disputes over a number of years and Otto Simon was breaking the government’s decision by his actions. Leonard Mambu (the appellant who has escaped) had a fight with Otto Simon, then Leonard went back to Mamari, mobilised a group of villagers including the appellants and staged a raid on Kumbimeri. The appellants admitted at the trial that they were armed with bushknives and sticks but not firearms.

9. The appellants now argue that the trial judge committed an error of law by taking no account of the fact that they were provoked by Otto Simon’s actions into raiding Kumbimeri and burning down the garden houses and hauswin.

10. We reject this submission as provocation is not a defence to arson. For provocation to be a defence to any offence, the defence must be expressly provided by the Criminal Code (The State v Inawai Moroi [1981] PNGLR 132). Examples are Sections 266 and 267, which provide that a person is not criminally responsible for an assault committed on a person who gives him provocation. The effect of these provisions is that the provocative act must be done against the person charged. The defence does not operate if the provocative act is done against the accused’s property, as distinct from his person. This means that there can be no defence of provocation if a person is charged with arson. However, as we point out below, provocation is something that can be taken into account as a mitigating factor.

11. The offence of which the appellants were convicted is created by Section 436 of the Criminal Code, which states:

A person who wilfully and unlawfully sets fire to … a building or structure, whether completed or not … is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

12. There are four elements of the offence:

· setting fire to;

· a building or structure;

· wilfully; and

· unlawfully.

13. There was clear evidence in support of the first three elements. The only issue of any substance the trial judge had to determine was whether the appellants acted unlawfully, ie without any lawful justification or excuse. The appellants’ actions could have been excused if they owned the land or the houses standing on the land or if they had the consent of the landowners to burn them down. The trial judge heard evidence about ownership of this land. There was a Local Land Court decision confirming that the land did not belong to the appellants. It had been awarded to the Sangriman people. The appellants did not have the consent of the owners to burn down the houses. Their actions were therefore unlawful. The fact that they were provoked by Otto Simon was not a defence.

14. The trial judge therefore made no error of law in convicting each of the appellants of four counts of arson.

DID THE TRIAL JUDGE ERR IN ENTERING CONVICTIONS FOR UNLAWFUL DEPRIVATION OF LIBERTY?

15. The appellants argue that their convictions for unlawfully depriving a year 7 school student, Damien Dombi, of his liberty, were against the weight of the evidence. Damien was the only person who gave direct evidence of this alleged abduction.

16. Damien said that he was taken as a prisoner. They held him up, tackled him, put him into a motor canoe and repeatedly hit him until they reached Mamari. He was imprisoned there for two weeks, blindfolded and had his hands and legs tied, before the Wewak Police rescued...