The State v Andrew Yeskulu (2003) N2410

• Jurisdiction: Papua New Guinea
• Citation: [2003] PNGLR 27
• Date: 24 April 2003
• Court: National Court
• Year: 2003

Full Title: The State v Andrew Yeskulu (2003) N2410

National Court: Kandakasi J

Judgment Delivered: 24 April 2003

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Indictment presented and accused arraigned before different judge—Whether appropriate to proceed on the basis of previous arraignment—No statutory prohibition against re–arraignment—Advisable to re–arraign to enable trial judge to be certain of accused final position—Trial judge needs to remind accused of what transpired under earlier arraignment before re–arraigning him—Accused entitled to maintain previous plea or change it.

2 CRIMINAL LAW—PRACTICE AND PROCEDURE—Guilty plea to charge of arson—Accused claiming steps taken to rebuild the building destroyed by his crime and now prepared to provide free and supervise labour toward rebuilding and replace contents destroyed in the fire—Means assessment required to ascertain what means accused has to rebuild and replace contents of building—Pre–sentence report required to determine whether a sentence alternative to imprisonment is appropriate—Means assessment and pre–sentence report confirm accused having means to rebuild and replace contents of the building lost and accused not a threat to society—Community prepared to assist accused to rehabilitate in supervising any community service order—Suspended sentence on terms including an order for rebuilding and replacement of items lost imposed—s2, s3, s4, and s5 of Criminal Law (Compensation) Act 1991—s19 and s436 of the Criminal Code.

3 CRIMINAL LAW—Compensation—Compensation only relevant for mitigation purposes and does not excuse criminal liability or penalty—No compensation order can be made unless a means assessment report is requested and it confirms prisoner having means to replace property lost or destroyed by the criminal conduct in question—Compensation ordered in terms of rebuilding and replacing contents lost as a consequence of the offence ordered—Sentence to be suspended on condition that the orders for rebuilding and replacement orders being met—s2, s3, s4 and s5 Criminal Law (Compensation) Act 1991.

4 CRIMINAL LAW—SENTENCE—PRACTICE AND PROCEDURE—Arson—Parliament prescribed life imprisonment as maximum penalty for arson—Courts have imposed sentences far short of that—Offence is serious and is on the increase—Suggested category of arson cases and recommended sentences starting at 10 years for serious cases and 5 years for less serious cases—Presence or absences of factors in mitigation or aggravation may increase or decrease the sentences—s436 of the Criminal Code.

5 CRIMINAL LAW—Sentence—Arson—Burning down of elementary school classroom—Building built of bush material—Offence committed in a non–legal claim of a bona fide right of ownership—Guilty plea—Prisoner taking and prepared to take further steps to rebuild the building lost and replace contents lost in the fire—Means assessment and pre–sentence report support accused position and recommend non custodial sentence—First time offender—Expression of genuine remorse—6 years suspended sentence on terms—s19 and s436 of the Criminal Code.

6 The State v Jack Oroko Tepol (1999) N1941, Public Prosecutor v Don Hale (1998) SC564, The State v Micky John Lausi (2001) N2073, The State v Abel Airi (2000) N2007, The State v Dobi Ao (No 2) [2002] PNGLR 55, The State v Otom Masa (2000) N2021 and The State v Ipu Samuel Yomb [1992] PNGLR 261 referred to

___________________________

Kandakasi J: You pleaded guilty to one charge of arson in that you burnt down an elementary school building, housing three classrooms on 23 July 2002, at Tuonnumbu, in the Kubalia District of this Province.

The charge against you (indictment) was presented to this Court initially before a different judge last month. You pleaded guilty to the charge when put to you by the Court. But when the Court asked you to address it on your sentence, you claimed a bona fide claim of right over the land on which the building you burnt down was built. Given that, the Court decided to change your guilty plea to a not guilty plea and directed that your case to be tried in this Circuit.

When your case was called before me, both the State's lawyer and yours informed the Court of what happened previously. Your lawyer also told the Court that, he had sought your instructions in relation to your claim of a bona fide right and the availability of a legal defence. Based on his advice and your instructions, he informed the Court that you were no longer raising or pursuing your claim. I then sought both the State and your lawyers' counsel as to whether I should have you re–arraigned. They were both of the view and I agreed that you should be re–arraigned. You were therefore re–arraigned.

Upon your re–arraignment, you pleaded guilty to the charge presented against you. The State then admitted into evidence the depositions with your consent. I then read and considered the evidence against you. On the basis of the material in the depositions, I was of the view that there was enough evidence to support your guilty plea. I therefore accepted your guilty plea and had you convicted for the charge presented against you.

I consider that the procedure this Court adopted is appropriate for two obvious reasons. Firstly, there is no prohibition against a re–arraignment. All of the requirements both in the Constitution and the Criminal Code as well as the established practice is to ensure that an accused person fully understands the whole process that is in play against him. He needs to know why he is in Court and that he understands the charge against him. Also it is important, given the presumption of innocence that, what an...