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
• Court: National Court
• Citation: (2003) N2563
• Date: 29 October 2003
• Year: 2003

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] PNGLR 27, 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] PNGLR 331, 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

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Kandakasi J: After a trial, on 19 June 2003, you were all found guilty and convicted on 4 charges of arson for burning down 4 bush material dwelling houses, contrary to s436(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 19 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 of your personal backgrounds and the situation back in your village or community as well as the relevant law and practice relating to sentences in the kind of offences you have committed.

The Facts

The relevant facts are fully set out in the decision on verdict. However, for the purposes of sentencing, I note that this was a case of a whole group of men deliberately setting out to destroy their tribal opponents' houses. This came about after a land dispute and after its resolution by a Local Land Court in favour of your victims. After the Local Land Court awarded the land to your opponents on 18 July 1988, they put up buildings and made gardens on the disputed land. On the day of the offences, 2 October 2001, Leonard Mambu went to the subject land and questioned an old man Otto Samun working on his gardens. You challenged him as to his ownership of the land.

Seeing and assessing what you were doing as wrong, witness Dombi Damien offered support to Mr Samun. You got angry over that and said, you will burn the buildings on the land and waived a gun you had with you that time. You then returned to your village and later went with your co–prisoners and burnt down the buildings that were there.

In the process, you captured and took with you, against his will, a Dombi Damien to your village. Jeffery Winjat caught him as he was trying to escape. Then all of you took him to your village after having punched, kicked and blind folded him and tying both of his hands. He was further assaulted upon arrival at your village. You used an axe, a bush knife, punches and kicks against him. He sustained a broken tooth and you kept him as a captive for two weeks until police freed him.

Submission

In your lawyer's submission, she argued for a part suspended and custodial sentence. In so submitting, she pointed out that you are prepared to pay a total of K900.00 to the victim of the deprivation of liberty offence and a sum between K1,000.00 and K2,000.00 for the burning down of the houses. At the same time, she asked the Court to take into account the contents of the pre–sentence report and arrive at a sentence that the Court considers is appropriate.

The State referred to my judgment in The State v Andrew Yeskulu [2003] PNGLR 27 and submitted that your case falls in the second category. Other than that, the State made no other submissions and left it to the Court to arrive at a sentence it considers appropriate.

The Offence

S436 of the Criminal Code, creates and prescribes the offence of arson and its penalty in these terms:

"436. Arson.

A person who wilfully and unlawfully sets fire to—

(a) a building or structure, whether completed or not; or

. . .

is guilty of a crime.

Penalty: Subject to s19, imprisonment for life."

As I said in The State v Andrew Yeskulu [2003] PNGLR 27 Parliament considered this offence as very serious. It therefore prescribed the maximum penalty of life imprisonment after considering all things. This is however subject to the discretion vested in this Court under s19 of the Code to impose a sentence lower than the prescribed maximum.

In the case cited, I noted that, the Supreme Court has not yet provide us with some guidance on how to approach sentences in arson cases. At the same time, I noted that, there are a number of National Court judgments, which provide some guidance. Out of these judgments, I expressed the view that...