The State v Enni Mathew, Emil Kongian, Jeffrey Winjat, Dennis Nobi, Roger Gisa, Basil Singawi, Jack Kam, Freddie Kam and Leonard Mambu (No 2) (2003) N2563

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 29 October 2003
• Court: National Court
• Citation: (2003) N2563
• Year: 2003
• Judgement Number: N2563

Full Title: The State v Enni Mathew, Emil Kongian, Jeffrey Winjat, Dennis Nobi, Roger Gisa, Basil Singawi, Jack Kam, Freddie Kam and Leonard Mambu (No 2) (2003) N2563

National Court: Kandakasi J

Judgment Delivered: 29 October 2003

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Sentence—Pre–sentence report not recommending suspended sentence or payment of compensation—Victims preferring custodial sentence or substantial compensation beyond legislative limits—Prisoners having no means to pay—Commission of offence a collective tribal or clan act—Collective responsibility called for—Appropriateness of tribe or clan responsibility—Criminal Code s436(a)—Criminal Law (Compensation) Act.

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—Sentence—Arson and unlawful deprivation of liberty—Cumulative or concurrent—Different victims, same transaction, same day but different location with one continuing over a period—Cumulative sentence reduced on crushing principle—Criminal Code s355—Constitution s42.

3 CRIMINAL LAW—Sentence—Arson—Four bush material dwelling houses—Group raid—Raid in contempt of Court Order—Conviction after trial—First time offenders except for one—Expression of remorse—Prevalence of Offence—Guidelines for sentence in arson cases—Part custodial and part suspended sentence called for provided tribe or clan pays for value of property destroyed—Criminal Code s19 and s436—Criminal Law (Compensation) Act.

4 CRIMINAL LAW—Sentence—Unlawful deprivation of liberty—Offence breach of the Constitutional right—Guidelines suggested and followed—Maximum penalty to be reserved for worse case—Sentence of 1 year 6 months imposed—Criminal Code s355—Constitution s42.

5 The State v Andrew Yeskulu (2003) N2410, The State v Ipu Samuel Yomb [1992] PNGLR 261, The State v Robin Warren (No 2) (2003) N2418, The State v Henny Wamahau Ilomo (Unreported and Unnumbered judgment delivered 13 October 2003) CR 546 of 2003), The State v Irox Winston (2003) N2347, Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000) referred to

Decision on Sentence

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1089, 1120, 1122, 1123, 1133, 1136, 1137, 1138 & 1139 of 2002

THE STATE

-V-

ENNI MATHEW,

EMIL KONGIAN,

JEFFREY WINJAT,

DENNIS NOBI,

ROGER GISA,

BASIL SINGAWI,

JACK KAM,

FREDDIE KAM AND

LEONARD MAMBU

(No. 2)

WEWAK: KANDAKASI, J.

2003:14th and 29th October

DECISION ON SENTENCE

CRIMINAL LAW - PRACTICE & PROCEDURE – Sentence - Pre-sentence report not recommending suspended sentence or payment of compensation – Victims preferring custodial sentence or substantial compensation beyond legislative limits – Prisoners having no means to pay – Commission of offence a collective tribal or clan act – Collective responsibility called for – Appropriateness of tribe or clan responsibility - Criminal Code s.436 (a) – Criminal Law (Compensation) Act.

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentence - Arson and unlawful deprivation of liberty - Cumulative or concurrent – Different victims, same transaction, same day but different location with one continuing over a period – Cumulative sentence reduced on crushing principle – Criminal Code s. 355 – Constitution s. 42.

CRIMINAL LAW - Sentence – Arson – Four bush material dwelling houses - Group raid – Raid in contempt of Court Order - Conviction after trial – First time offenders except for one – Expression of remorse – Prevalence of Offence – Guidelines for sentence in arson cases – Part custodial and part suspended sentence called for provided tribe or clan pays for value of property destroyed - Criminal Code ss.19 and 436 – Criminal Law (Compensation) Act.

CRIMINAL LAW – Sentence – Unlawful deprivation of liberty – Offence breach of the Constitutional right – Guidelines suggested and followed – Maximum penalty to be reserved for worse case – Sentence of 1 year 6 months imposed– Criminal Code s. 355 – Constitution s.42.

Cases cited:

The State v. Andrew Yeskulu (unreported and yet to be numbered judgement delivered 24/04/03) CR 1431 of 2002.

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

The State v. Robin Warren & Ors (No.2) (unreported judgement delivered on 20/06/03) N2418.

The State v. Henny Wamahau Ilomo (unreported and yet to be numbered judgment delivered 13/10/03) CR 546 of 2003.

The State v. Irox Winston (unreported judgment delivered on 13/03/03) N2347.

Ala Peter Utieng v. The State (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000.

Counsel:

M. Ruari for the State

S. Maliaki for the Prisoner

29th October, 2003

KANDAKASI J: After a trial, on the 19th of June 2003, you were all found guilty and convicted on 4 charges of arson for burning down 4 bush material dwelling houses, contrary to s. 436 (a) of the Criminal Code out of a total of 12 charges presented against you. Also, you were found guilty and convicted of 1 charge of unlawful deprivation of liberty.

These offences were committed out of a pre-existing land dispute and animosities arising out of that. I therefore decided to defer sentence to enable you and your people and those of the victims of your offences to come up with a proposal on sentence that could help resolve the existing differences. Such a proposal was to be submitted to the Court within 1 month from 19th June 2003. I now have a pre-sentence report from the Probation Service, indicating no sign of making peace between you and your people on the one side and the victims’ people on the other. Given this position, your victim’s prefer you to be given a custodial sentence, unless the Court can order and you are able to pay compensation up to K30,000.00. On your side, you prefer a suspended sentence with compensation in terms of K900.00 for unlawful deprivation of liberty and a sum between K1,000.00 and K2,000.00 for arson.

The report also notes that, this is a difficult case. Its author was not able to contact and get inputs from the nearest church and government official, notwithstanding the passage of more than 3 months. The only official input in the report is from the Chairman of the Karawari Community Government. His suggestion is for the Court to order you to do community service at Amboin Station.

In view of this position, it is important that the Court carefully consider the factors operating for and against you before arriving at a decision on your sentences. That requires a close examination of the facts disclosing the circumstances and the way in which you committed the offences. It also, requires a consideration of each...