The State v Anton Towakra, John Towakra & Carl Mathew (2009) N3845

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 31 March 2009
• Court: National Court
• Citation: (2009) N3845
• Docket Number: CR NOS 354-356 OF 2008
• Year: 2009
• Judgement Number: N3845

Full Title: CR NOS 354-356 OF 2008; The State v Anton Towakra, John Towakra & Carl Mathew (2009) N3845

National Court: Cannings J

Judgment Delivered: 31 March 2009

N3845

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 354-356 OF 2008

THE STATE

V

ANTON TOWAKRA, JOHN TOWAKRA & CARL MATHEW

Kimbe: Cannings J

2009: 16, 30, 31 March

Criminal Law – sentences – arson – Criminal Code, Section 436 – burning down of permanent dwelling houses and another structure – conviction on two counts.

The three offenders were convicted of two counts of arson. Under the first count, they were convicted of burning down their wantok’s permanent dwelling house and bush material kitchen house. Under the other count, they were convicted of burning down the first victim’s brother’s permanent dwelling house-canteen.

Held:

(1) When sentencing multiple offenders for multiple offences, the court should arrive at a notional sentence for each offender for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

(2) The three offenders were each convicted of two offences, so the court was required to fix six notional sentences, which were fixed as follows: first count: 9 years for each of the three offenders; second count: 7 years for each of the three offenders.

(3) The total potential sentence for each offender was 9 years + 7 years = 16 years imprisonment.

(4) The sentences should not be served concurrently as, although committed during the one incident, there were different victims.

(5) However, sentences of 16 years each would be excessive so, under the totality principle, they were reduced to 10 years each.

(6) The pre-sentence periods in custody were deducted from each sentence.

(7) Seven years of each total sentence was suspended on conditions including payment of compensation to the victims prior to release from custody.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271

Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88

The State v Alfred Awesa CR 1587/2005, 06.04.06

The State v Anton Towakra and Others, CR Nos 354-357 of 2008, 16.03.09

The State v Bernard Bambai CR 1931/2005, 23.03.06

The State v Bonifas Bowa CR 1930/2005, 23.03.06

The State v Jacob Patore CR 32/2005, 27.03.07

The State v Jacob Patore CR 32/2005, 27.03.07

The State v James Wakis (2008) N3426

The State v Mondo Baundo CR 1320/2006, 24.08.07

The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07

The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07

The State v Patrick Michael & Leo Koligen CR 281 & 283/2004, 10.10.05

The State v Pelly Vireru & Spelly Kaiwa CR 468 & 469/2002, 20.12.05

The State v Rex Hekawi Tami CR 1590/2005, 23.03.06

Tom Longman Yaul v The State (2005) SC803

Abbreviations

The following abbreviations appear in the judgment:

AOG – Assemblies of God

CR – Criminal

ie – that is

J – Justice

N – National Court judgment

No – number

PNGLR – Papua New Guinea Law Reports

SC – Supreme Court judgment

v – versus

WNB – West New Britain

SENTENCES

This was a judgment on sentence for three offenders who had each been convicted of two counts of arson.

Counsel

F Popeu for the State

T Gene for the offenders

SENTENCES

31 March, 2009

1. CANNINGS J: This is a decision on the sentences for two brothers, Anton and John Towakra, and their close relative, Carl Mathew, who have each been convicted after a trial of two counts of arson.

2. Under the first count, they were convicted of burning down a permanent dwelling house and properties (worth K67,667.90) and bush material kitchen house (worth K8,000.00) belonging to their relative, Joshua Apkosa.

3. Under the other count, they were convicted of burning down the permanent dwelling house-canteen (worth K11,371.60) of Lepman Apkosa, who is the first victim’s brother.

4. Both offences were committed on the morning of Saturday 27 October 2007 at the Galai 2 oil palm settlement, near Kimbe. The offenders and the victims are all from West Sepik but have lived in close proximity to each other at Galai 2 for many years.

5. The event that triggered the incident was the death of Anton and John Towakra’s brother, Simon Towakra. Simon died on 13 October 2007 from injuries inflicted by Joshua Apkosa in an incident at Galai 2 on 24 September 2007. Simon was being buried on the morning of Saturday 27 October. Anton went to the Apkosa block that morning to demand compensation. One of the offenders’ cousins, Elvis Dennis, was slashed with a bushknife and sustained serious injuries. Things got out of hand and a number of houses and other structures on the Apkosa block were burned down by the three offenders.

6. Further details of the circumstances in which the offences were committed are in the decision on verdict (The State v Anton Towakra and Others, CR Nos 354-357 of 2008, 16.03.09).

ANTECEDENTS

7. None of the offenders has any prior convictions.

ALLOCUTUS

8. I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment.

Anton Towakra: This is my first time to be before the National Court and thank the Court for hearing my case. This trouble happened because of the death of my brother, Simon Towakra, and the injuries inflicted on our other brother, Elvis Dennis. I am married and I have four young children. If the court puts me in jail there will be no one to look after them. I have a block to look after, and Lepman Apkosa has been preventing me from harvesting it. I am the headmaster of our local elementary school and the education of a lot of young children in our community will suffer if I am sent to jail. Lakiemata Jail is overcrowded and we do not have space to sleep. Please consider me for probation so that I and my brothers can serve our sentences outside the jail. That is the only way we can solve all these problems.

John Towakra: This is my first time to be before the National Court and thank the Court for hearing my case. I am married and I have five young children. I have no idea about what happened but the court has made its decision and I accept the court’s decision. If the court puts me in jail there will be no one to look after my block or my children or look after school fees. Lakiemata Jail is overcrowded and we do not have space to sleep. Please consider me for probation so that my brothers and I can serve our sentences outside the jail. We can pay compensation or rebuild the houses that have been burned down.

Carl Mathew: This is my first time to be before the National Court and thank the Court for hearing my case and making a decision. I am married and I have four young children. I want to continue my missionary work in the AOG Church. I am a member of the Church board. I am actively involved in musical activities with the Church. Last January I was appointed Chairman of the Sunday School division of the Church for East and West New Britain and Bougainville. I have a five-hectare block and while I have been in wet kot I have heard that the company has removed one of my hectares. My father is very old and was not in a position to talk with the company. There is no one else to look after my mother and father and children. Please consider me for probation so that I and my brothers can serve our sentences outside the jail. That is the only way we can solve all these problems.

PRE-SENTENCE REPORTS

9. Pre-sentence reports, prepared by the Kimbe branch of the Community Correction and Rehabilitation Service, are summarised below.

Anton Towakra

· 29 years old

· Married, happily, with four children, aged six months to six years

· Educated to G10 at Hoskins Secondary School, 1997; later did an agriculture course and an elementary teaching course

· Lives on a block belonging to his parents

· Mother died last year; his father is now frail, aged 73

· Had formal employment with Hargy Oil Palms in 2000; presently he is teacher-in-charge at Galai 2 Elementary School, supervising five teachers; has a regular fortnightly income

· Father and rest of family supportive

· Health OK: non-smoker; moderate drinker; non-chewer (betel nut)

· AOG church member; committed and actively involved in church activities

· Highly regarded in the local community

· Subject to the attitude of the victims, the offender’s family and community do not support a prison sentence

· Suitable for probation, subject to conditions, including payment of compensation.

John Towakra

· 37 years old

· Married, happily, with five children, aged 2 to 15 years old

· No formal education

· Recently purchased a block at Kabaiya in the Bialla area and has settled there with his family

· Mother died last year; his father is now frail, aged 73

· No formal employment

· Father and rest of family supportive

· Health OK: non-smoker; non-drinker; non-chewer (betel nut)

· AOG church member; committed and actively involved in church activities at Kabaiya

· Highly regarded in the local community

· Subject to the attitude of the victims, the offender’s family and community do not support a prison sentence

· Suitable for probation,...