The State v Yunati Epa (2008) N3309

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 12 March 2008
• Citation: (2008) N3309
• Docket Number: CR NO. 154 of 2008
• Court: National Court
• Year: 2008
• Judgement Number: N3309

Full Title: CR NO. 154 of 2008; The State v Yunati Epa (2008) N3309

National Court: Kandakasi, J

Judgment Delivered: 12 March 2008

N3309

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 154 of 2008

THE STATE

-V-

YUNATI EPA

Tabubil: Kandakasi, J.

2008: 5, 6 and 12 March

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Particular offence – Arson – Burning down of a semi permanent dwelling house – Provocation in the non-legal sense – Total value of building and contents K9,000.00 – Guilty plea by first time offender – Pre-sentence report recommending non custodial sentence on conditions including restitution – Prisoner has means to restitute - Head sentence of 3 years imposed wholly suspended on conditions – Criminal Code s. 346.

Cases cited:

The State v. Andrew Yeskulu (24/04/03) N2410.

The State v. Bart Kiohin Mais and Henry Kevi (23/03/05) N2811.

The State v. Peni Bilak (21/07/05) N2866.

The State v. Bob Wamu & 34 Ors CR NO. 510, 539, 648, 649, 650, 651 & 652 of 2006 (Unreported and yet to be numbered decision delivered in Daru on 15/06/07).

Rudy Yekat v. The State (22/11/01) SC665.

Counsel:

J. Kesan, for the State.

P. Kapi, for the Accused.

12 March, 2008

1. KANDAKASI J: You pleaded guilty to a charge of arson contrary to s. 346 of the Criminal Code, and I had you convicted on the basis of your guilty plea and received yours and that of your lawyer’s as well as the State’s address on sentence.

Relevant Issue

2. What remains to be resolved is the question of what is an appropriate sentence for you. This issue can be resolved by reference to the relevant facts, the offence and sentencing trend or tariffs, the factors operating for and against you and your family and personal background.

Relevant Facts

3. I turn firstly to a consideration of the facts and note that the facts giving rise to the charge, your guilty plea and your conviction are these. You originally come from, Lian Village, in the Kandep District of Enga Province, but now leave here in Tabubil. On 10 December 2007, you went to Gilson Lam, your brother through marriage’s house a semi permanent house consisting of corrugated iron roofing and the rest bush material. The house was situated at seventh corner here in Tabubil, where you also lived in with your children and wife who is the sister of Mr. Lam’s wife. Mr. Lam and his wife had on three different occasions, sent your wife and children away to Oksapmin, where your wife comes from. On one of those occasions, one of your children got fire burns to her body. So since than, you have become worried and concerned over the safety of your wife and children. Also on the previous occasions, you incurred costs bringing your family back from Oksapmin to Tabubil. You therefore, asked Mr. Lam and his wife not to send your wife and children away and warned that, you will take action against them if they do. They did not take you seriously and sent your wife and children away to Oksapmin where your wife comes from for the fourth time. That caused you to be angry so you went to Mr. Lam’s house and burnt it down with its contents. The total of all that you burnt is put at K9,000.00.

4. Immediately after burning down the house, you reported the matter to police here in Tabubil and surrendered yourself to them. From that day on, you continuously admitted to burning down the house and the reason for doing that. You are also prepared to restitute if the Court is able to give you time to do that. You have a motor vehicle which you are willing to sell to help restitute what you destroyed. Also, if need be, you will use income from a canteen in Kiunga which brings in K900 per month.

Offence and Sentencing Trend

5. With these facts in mind, I turn to a consideration of the offence and the sentencing trend and guidelines. Section 346 of the Criminal Code, creates and prescribes the sentence of life imprisonment for the offence of arson and its penalty of life imprisonment. This is however, subject to the Court’s discretion whether or not to impose the maximum sentence prescribed in the Code in all criminal cases, even in more serious offences such as willful murder, under s. 19 of the Code. Usually, in serious cases like willful murder and murder, non custodial sentences are considered inappropriate. In arson cases, I have carefully reviewed the sentencing trend or practice in the case of The State v. Andrew Yeskulu.

1 (24/04/03) N2410.

1 That work showed that the courts have in the past imposed wholly suspended or non custodial sentences in some cases. I also noted that, imposing such sentences have failed to deter other would be offenders and suggest that, the sentences should be substantially increased, given the seriousness of the offence and the maximum prescribed sentence being life imprisonment. In order to do that, I recommended the following guidelines:

“In my view, just as all the other offences have their own categories, arson cases have their own categories. Without limiting the list, I list below the kind of category a case of arson may fall under:

1. a dwelling house with people inside;

2. a dwelling house without any occupants;

3. public institutions such as schools, hospitals, or offices with occupants inside;

4. public institutions such as schools, hospitals, or offices without occupants inside; and

5. a house wind or a garden house or a run down and deteriorated or incomplete structure.

Then of course other factors such as the type and value of the building, whether bush material, whether the offence is committed with premeditation with the aid of substances like kerosene or other such highly flammable substances like that would be relevant factors in aggravation. Similarly, a not guilty plea resulting in a conviction and or the offender having a prior conviction are factors in aggravation. At the same time, the opposite of these factors may operate in the offender’s mitigation.”

6. I went on to say:

“I … consider that a sentence for a case of arson falling in the first, second, third and fourth categories without any aggravating factor should start at a minimum of 10 years. Where there are factors in aggravation, the sentence should be increased to terms beyond that up to the maximum prescribe of life imprisonment in the more serious cases. A sentence for a case of arson falling in the last category should start at 5 years, where there are no factors in aggravation. Where there are factors in aggravation, the sentence may go beyond that. Of course, in exceptional cases where there are very good mitigating factors with the support of a pre-sentence report, a sentence below what is recommended may be imposed.

In expressing these views, I maintain the view that once a person is found guilty of a crime, the onus is on him to show by appropriate evidence that he should not be given the maximum prescribed sentence. This follows from my view that the presumption of innocence under the Constitution applies only up to the point when guilt or innocence is decided against an accused person. For the protection is in terms of an accused person being “presumed innocent until proven guilty according to law.” Where a prisoner fails to demonstrate a case for leniency, he has no reason to expect a sentence other than the maximum.”

7. I note that, other judges have accepted and or followed the guidelines I have suggested and imposed varying sentences, though not necessarily in the terms I have suggested. One of the first such cases is the case of The State v. Bart Kiohin Mais and Henry Kevi.

2 (23/03/05) N2811.

2 There, Cannings J., considered the guidelines I have suggested and he added a few more and decided to impose a wholly suspended sentence of 2 years with conditions. Amongst others, he found that, although fuel was used to burn down a dwelling house with several rooms built with wood and corrugated iron roof, by a group of offenders and that, the victims were directly affected, the offenders did not put the victims directly at risk as no one was in the house and the offence was not preplanned or calculated. He also found that, there was an element of provocation, as the offenders had heard that the owner of the house had attacked and stabbed one of the offenders’ brothers and killed him, which was partly true. Further, His Honour found that, the commission of the offence was isolated, they cooperated with the police although, they did not voluntarily give themselves up to the police. Further still, His Honour found that, the offenders had done something tangible to repair their wrongs. They built the victim a new and much better house. Furthermore, His Honour found that, the offenders did not cause further trouble since the incident and have pleaded guilty to the charge, expressed remorse and that they were both first time offenders.

8. Another case, is the decision by Lay J., in The State v. Peni Bilak...