The State v Akena Pawa [1998] PNGLR 387

• Jurisdiction: Papua New Guinea
• Judge: Lenalia AJ
• Judgment Date: 17 April 1998
• Citation: [1998] PNGLR 387
• Court: National Court
• Year: 1998
• Judgement Number: N1710

National Court: Lenalia AJ

Judgment Delivered: 17 April 1998

N1710

PAPUA NEW GUINEA

[In The National Court of Justice]

CR NO 1414 OF 1997

THE STATE

V

AKENA PAWA

Wabag: LENALIA, AJ

1998: 14 & 17 April

Criminal Law - Arson - Plea - Sentence - Criminal Code S. 436 - (Ch. No. 262)

Criminal Law - Arson - Sentence in offence of arson - Matters for consideration - Burning of a modern permanent building - Value of structure - complete destruction of a modern permanent building - Value relevant consideration

The accused was pleaded guilty to one act of arson by wilfully and unlawfully setting fire to a modern permanent dwelling house owned by one Timothy Kerene (the victim) in reprisal of unpaid compensation to the accused for a dead pig and an alleged unpaid entitlements for working as a crew on the victim’s Public Motor Vehicle.

Held: (1) Despite strong plea in mitigation, a custodial sentence should be commensurate to the offence committed.

(2) The value of the building and its contents, the likelihood of any occupants in the building and the time of the commission of the offence of arson are factors to be taken into consideration on Sentence: The State v Ipu Samuel Yamb [1992] PNGLR 261 adopted and applied.

(3) Accused being a young offender cannot expect leniency from the Court as the offence was premeditated. Being a youth does not exonerate the accused from criminal culpability and unless exceptional circumstances are shown to exist, a custodial sentence ought to be imposed: Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258 applied.

Cases Cited:

The following cases are referred to in the judgement.

The State v Ipu Samuel Yomb [1992] PNGLR 261

Acting Public Prosecutor v Joe Kovea Mailai [1981] PNGLR 258

R-v-Raich [1954] PNGLR 86

Paulus Mandatitip v The State [1978] PNGLR 128

The State v Thomas Waim (1997) Unreported

Counsels

P. Kumo, for the State

B. Aipe, for the Accused

SENTENCE

17 April, 1998

LENALIA, AJ: The accused upon arraignment entered a guilty plea to one count of arson charging that on September 29, 1997 at Panadaka Village in Enga Province he wilfully and unlawfully set fire to a dwelling house whose owner is Timothy Kerene thereby contravening S. 436 of the Criminal Code.

The agreed facts are that on the relevant date at about 4 pm the accused proceeded to the house of the victim and wilfully set fire to it. The facts are well covered by statements of all the witness and the record of interview conducted with the prisoner. The State’s version is that you approached Ms Julie Pusboi who was minding a store nearby and bought two bottles of kerosene from her. You took these bottles of kerosene to the victim’s house then poured kerosene on the walls and the facts are not clear whether the pouring of kerosene was done from outside or inside. The defence version is that the fire was lit from inside. This could have meant you poured kerosene inside then set fire to the building.

Ms Pusboi alerted the victim’s wife and by the time the two women got to the scene, the building was completely engulfed by flame. They stood hopelessly watching the flame.

Another witness Mrs Cathy Kerene the wife of the victim said in her statement that, she was in another house and when she heard the warning, she could not properly make out what it was all about. She ran but from where she was only to see that her house was already burning. She then ran down to the Porgera mine site where she made a phone call to her husband at his work place. He was informed about the news and they drove back to the scene. The Court understands from the facts that the victim’s house was adjacent to the Porgera Joint Venture premises.

After you had set fire to the house, you came to Ms Rose Joe and asked her to tell the victim that you have three good reasons for burning his house. The first reason you gave was that the victim had run over your pig with his vehicle sometime ago but you had not been paid any compensation. Secondly, you alleged that the victim had employed you over a period of time as a crew on his public motor vehicle but had not remunerated you as yet. Thirdly that the victim had unreasonably blamed you for stealing a certain sum of money by breaking into his house. Another reason you gave was that the victim had assaulted you sometime previously.

The complainant lost both the house and all its contents. The value of the house alone was placed at K50,000.00. Apart from that, furnitures including a refrigerator a TV screen, deck a radio set and other smaller items were all destroyed in the fire. The overall total was put by the State to be between K80,000.00 or K85,000.00.

In your allocutus you mentioned that the reason you committed this offence was because the victim had caused you some troubles and he never made amends with you. You said now that you have avenge yourself you now realise that you had no relative to assist you with this trouble. That as well as that even prior to burning the house there was nobody who could assist you obtain what you wanted so you planned to burn the complainant’s house.

The Court had the advantage of hearing the two counsels addressed the Court on an appropriate sentence that, this Court should impose on you. Certainly in your favour, I take into consideration you have pleaded guilty. The Court has also considered the fact that you are a youthful offender and this is your first appearance in Court. That is to say you have a clean record with the State.

In consideration of what should be the appropriate penalty commensurate with this offence, I should address a few factors and which the law requires me to consider: The State v Ipu Samuel Yomb [1982] PNGLR 261. First you set fire to the house by 4pm by...