The State v Prodie Akoi and Steven Akoi (2004) N2584

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 25 March 2004
• Court: National Court
• Citation: (2004) N2584
• Year: 2004
• Judgement Number: N2584

Full Title: The State v Prodie Akoi and Steven Akoi (2004) N2584

National Court: Kandakasi J

Judgment Delivered: 25 March 2004

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Guilty to plea to charge of arson—Restitution—Means assessment and pre–sentence report—Request and consideration of—Community prepared to assist accused to rehabilitate and supervise community based sentence—Victims opposed to restitution—Restitution inappropriate—s2, s3, s4, and s5 of Criminal Law (Compensation) Act—s19 and s436 of the Criminal Code.

2 CRIMINAL LAW—Compensation—Compensation mitigating factor only—No compensation order can be made unless a means assessment report confirms prisoner having means.

3 CRIMINAL LAW—Sentence—Arson—Dwelling house with use of petrol in retaliation of perceived sorcery killing—Guilty plea—Prisoner prepared to rebuild and replace contents lost—Means assessment and pre–sentence report support accused position and recommend non custodial sentence—Victims not preferring restitution—First time offender—Expression of remorse—10 years part suspended sentence imposed—s19 and s436 of the Criminal Code.

4 The State v Micky John Lausi (2001) N2073, The State v Abel Airi (2000) N2007, The State v Dobi Ao (No 2) (2002) N2247, The State v Andrew Yeskulu (2003) N2410, The State v Ipu Samuel Yomb [1992] PNGLR 261, The State v Enni Mathew (No 2) (2003) N2563, The State v Robin Warren (No 2) (2003) N2418 referred to

___________________________

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1431 of 2002

THE STATE

-V-

PRODIE AKOI

& STEVEN AKOI

VANIMO: KANDAKASI, J.

2004: 8th and 25rd March

CRIMINAL LAW – PRACTICE & PROCEDURE – Guilty to plea to charge of arson – Restitution – Means assessment and pre-sentence report – Request and consideration of – Community prepared to assist accused to rehabilitate and supervise community based sentence – Victims opposed to restitution –Restitution inappropriate - ss. 2, 3, 4, and 5 of Criminal Law (Compensation) Act – ss. 19 and 436 of the Criminal Code.

CRIMINAL LAW – Compensation – Compensation mitigating factor only – No compensation order can be made unless a means assessment report confirms prisoner having means.

CRIMINAL LAW - Sentence - Arson - Dwelling house with use of petrol in retaliation of perceived sorcery killing - Guilty plea – Prisoner prepared to rebuild and replace contents lost - Means assessment and pre-sentence report support accused position and recommend non custodial sentence – Victims not preferring restitution - First time offender – Expression of remorse – 10 years part suspended sentence imposed – ss.19 and 436 of the Criminal Code.

Cases cited:

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. Andrew Yeskulu (Unreported judgment delivered 24/04/03) N2410

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

The State v. Ennie Mathew & Ors (No. 2) (Unreported judgment delivered on 29/10/03) N2563

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

Counsels:

Mr. F Popeu for the State

Mr. L. Kari for the Prisoners

23rd March 2004

KANDAKASI J: Both of you pleaded guilty to one count each of arson of one dwelling house belonging to a Ben Ralil on Ali Island, Aitape, West Sepik Province on 26th January 2002 contrary to s.436 (a) of the Criminal Code. Following your guilty plea, the State admitted into evidence the District Court depositions without any objection from you. I then read and considered the evidence against you. Based on the material in the depositions, I was satisfied that, there was enough evidence to support your guilty pleas. I therefore accepted your guilty pleas and convicted both of you on the charge presented against you.

Address on Sentence

After having decided to accept your guilty pleas and convicting you, I then asked you to address me on sentence. In response to that, you both said sorry for what you have done. You also informed the Court that you tried to correct your wrong by trying to convince the victims to agree to you rebuilding of the houses and replace their contents but the victims have not agreed. Instead, they have decided to leave the matter to the Court. You went on to inform the Court that, you are still prepared to rebuild the buildings and replace its contents. In addition, you informed the Court of your respective family backgrounds and pleaded for mercy or leniency from the Court.

Your lawyer then applied for a pre-sentence report and an adjournment for further address on your sentence until the report is furnished. I granted that application. The pre-sentence report is now in and is inclusive of a means assessment. Your lawyer made submissions on your behalf, essentially arguing for a non-custodial sentence with an order for a rebuilding and replacement of the contents having a total estimate of K64, 000.00. This submission proceeds on the basis that firstly, you are both first time offenders, meaning this is the first ever time you have been in trouble with the law. Secondly, you acted upon a desire to retaliate what you believed to be a sorcery killing of your brother by the victims of your offence. Thirdly, you pleaded guilty to the charge, which saved the State considerable time and money. Thirdly, you have the means to rebuild the house and replace the contents that were lost in the fire.

The State is not opposed to the submissions of your lawyer, provided such a sentence is on conditions. However, the victims are opposed to any order for restitution saying they have already commenced rebuilding and they do not need any help from the two of you. They also say that some of the items as being owned by you are in fact owned jointly with others in the village and they do not wish that those be disposed to their favour as those others having interests in the properties will be affected.

It is within the discretion of the Court to determine an appropriate sentence in every case that comes before it. A number of factors play an important part in the exercise of that discretion. These include the particular facts and or the circumstances in which an offence was committed, the antecedents of the offender, whether conviction is on a guilty plea or a after a trial and the nature of the offence itself.

Facts

Therefore, firstly, what are the facts and circumstances in which you committed this offence? On Saturday 26th January 2002, the body of your then deceased brother, a Samson Awep Akoi arrived at Ali Island from Aitape in a convey of four dinghies. Upon arrival, Prodie stated, “I am fed up, we will see what will happen today.” Then as the coffin holding the deceased was being moved from the dinghy it was on, Prodie hit the coffin and said “Come on Samson, wake up, do something and show us.”

According to witness statements, the coffin or the deceased did not move and or make any sign and it was taken into your family’s house. Not long after, Steven you came out of the house. You then broke a piece of laplap and tied it to a stick and you repeated your earlier statement, “Come on Sampson, wake up and show us.” Thereafter, the coffin with the deceased body in it was taken around your family house by yourselves with the help of others and followed a track leading to Chaltaleo village and then to Aitalal village. You finally came to a stop at Ben and Nick Raril’s house.

As you carried the coffin around, a Jeffery Mayaus was seen carrying a 20-liter plastic container with half-full petrol. Steven took the petrol, broke open the main door to the Rarils’ house, poured the petrol all over the inside of the house from the bedroom,...