The State v Andrew Yeskulu (2003) N2410

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 April 2003
• Citation: [2003] PNGLR 27
• Court: National Court
• Year: 2003
• Judgement Number: N2410

Full Title: The State v Andrew Yeskulu (2003) N2410

National Court: Kandakasi J

Judgment Delivered: 24 April 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1431 of 2002

THE STATE

-V-

ANDREW YESKULU

WEWAK: KANDAKASI, J.

2003: 4th, 23rd and 24th of April

CRIMINAL LAW – PRACTICE & PROCEDURE – Indictment presented and accused arraigned before different judge – Whether appropriate to proceed on the basis of previous arraignment – No statutory prohibition against re-arraignment – Advisable to re-arraign to enable trial judge to be certain of accused final position – Trial judge needs to remind accused of what transpired under earlier arraignment before re-arraigning him - Accused entitled to maintain previous plea or change it.

CRIMINAL LAW – PRACTICE & PROCEDURE – Guilty plea to charge of arson – Accused claiming steps taken to rebuild the building destroyed by his crime and now prepared to provide free and supervise labour toward rebuilding and replace contents destroyed in the fire – Means assessment required to ascertain what means accused has to rebuild and replace contents of building - Pre-sentence report required to determine whether a sentence alternative to imprisonment is appropriate – Means assessment and pre-sentence report confirm accused having means to rebuild and replace contents of the building lost and accused not a threat to society – Community prepared to assist accused to rehabilitate in supervising any community service order – Suspended sentence on terms including an order for rebuilding and replacement of items lost imposed – ss. 2, 3, 4, and 5 of Criminal Law (Compensation) Act – ss. 19 and 436 of the Criminal Code.

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal liability or penalty – No compensation order can be made unless a means assessment report is requested and it confirms prisoner having means to replace property lost or destroyed by the criminal conduct in question - Compensation ordered in terms of rebuilding and replacing contents lost as a consequence of the offence ordered – Sentence to be suspended on condition that the orders for rebuilding and replacement orders being met – ss.2, 3, 4 and 5 Criminal Law (Compensation) Act.

CRIMINAL LAW - SENTENCE – PRACTICE & PROCEDURE – Arson – Parliament prescribed life imprisonment as maximum penalty for arson – Courts have imposed sentences far short of that – Offence is serious and is on the increase – Suggested category of arson cases and recommended sentences starting at 10 years for serious cases and 5 years for less serious cases – Presence or absences of factors in mitigation or aggravation may increase or decrease the sentences - s. 436 of the Criminal Code.

CRIMINAL LAW - Sentence – Arson – Burning down of elementary school classroom – Building built of bush material – Offence committed in a non-legal claim of a bona fide right of ownership – Guilty plea – Prisoner taking and prepared to take further steps to rebuild the building lost and replace contents lost in the fire – Means assessment and pre-sentence report support accused position and recommend non custodial sentence – First time offender – Expression of genuine remorse – 6 years suspended sentence on terms – ss.19 and 436 of the Criminal Code.

Cases cited:

The State v. Jack Oroko Tepol (08/10/99) N1941.

Public Prosecutor v. Don Hale (1998) SC 564.

The State v. Micky John Lausi (27/03/01) N2073.

The State v. Abel Airi (28/11/00) N2007.

The State v. Dobi Ao (N0.2) (01/05/02) N2247.

The State v Otom Masa (20/12/00) N2021.

The State v. Ipu Samuel Yomb [1992] PNGLR 261.

Counsels:

Mr. M. Ruari for the State

Mr. G. Korei for the Prisoner

24th April 2003

KANDAKASI J: You pleaded guilty to one charge of arson in that you burnt down an elementary school building, housing three classrooms on the 23rd of July 2002, at Tuonnumbu, in the Kubalia District of this Province.

The charge against you (indictment) was presented to this Court initially before a different judge last month. You pleaded guilty to the charge when put to you by the Court. But when the Court asked you to address it on your sentence, you claimed a bona fide claim of right over the land on which the building you burnt down was built. Given that, the Court decided to change your guilty plea to a not guilty plea and directed that your case to be tried in this Circuit.

When your case was called before me, both the State’s lawyer and yours informed the Court of what happened previously. Your lawyer also told the Court that, he had sought your instructions in relation to your claim of a bona fide right and the availability of a legal defence. Based on his advice and your instructions, he informed the Court that you were no longer raising or pursuing your claim. I then sought both the State and your lawyers’ counsel as to whether I should have you re-arraigned. They were both of the view and I agreed that you should be re-arraigned. You were therefore re-arraigned.

Upon your re-arraignment, you pleaded guilty to the charge presented against you. The State then admitted into evidence the depositions with your consent. I then read and considered the evidence against you. On the basis of the material in the depositions, I was of the view that there was enough evidence to support your guilty plea. I therefore accepted your guilty plea and had you convicted for the charge presented against you.

I consider that the procedure this Court adopted is appropriate for two obvious reasons. Firstly, there is no prohibition against a re-arraignment. All of the requirements both in the Constitution and the Criminal Code as well as the established practice is to ensure that an accused person fully understands the whole process that is in play against him. He needs to know why he is in Court and that he understands the charge against him. Also it is important, given the presumption of innocence that, what an accused person is saying both in relation to his guilt or innocence and passed that stage, his sentence is clear and is clearly understood by the Court.

Following on from the first is the second reason. An accused person is entitled to change his plea any time but before judgement even on the Court’s own volition: See The State v. Jack Oroko Tepol (08/10/99) N1941. Thus in my view, it does no harm for the Court to re-arraign an accused, if he was previously arraigned before a different judge. This will no doubt enable the Court to know exactly what the accused is saying about the charge, so as to eliminate any doubt as to what he is saying about the charge. Also, inevitably a lot of accused persons change their position between circuits. Some of these are on proper legal advice and others are on account of other factors. But all the same, the Court must be informed of the accused latest position in response to a charge against him. Through this process, a not guilty plea may turn into a guilty plea and a guilty plea might turn into a not guilty plea. It would therefore be unsafe to proceed on an assumption that an accused person is maintaining his earlier position.

Now getting back to your case, after having decided to accept your guilty plea and convicting you on the charge of arson in line with the above, I asked you to address me on sentence. In response to that, you expressed remorse for what you had done. In so doing, you acknowledged that, what you did was against your immediate society. You then informed me that you had taken steps to rebuild the building you had burnt down and replace its contents. You also informed the Court that you have about 300 vanilla plants, some coca and coconut plants and other cash crops. I then asked you whether you would be in a position to provide your labour free of charge toward the reconstruction work and other community work under supervision and also replace the contents of the building you burnt down. Your answer was in the affirmative. I also asked the principal of the elementary school who was present in Court to comment. He said he has not yet seen any material from you toward the reconstruction of the building.

I also asked Mr. Ruari of Counsel for the State as to whether, he would be opposed to a suspended sentence to enable you to rebuild the building by providing all the building material required. He indicated no opposition.

In the circumstances, I considered it appropriate that I should call for a means assessment report as to what means you have to do all that you said you are prepared to do based on...