The Independent State Of Papua New Guinea v Taiana Pakupi (2012) N4699

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 08 June 2012
• Citation: (2012) N4699
• Docket Number: CR No.127 of 2011
• Court: National Court
• Year: 2012
• Judgement Number: N4699

Full Title: CR No.127 of 2011; The Independent State of Papua New Guinea v Taiana Pakupi (2012) N4699

National Court: David, J

Judgment Delivered: 8 June 2012

N4699

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No.127 of 2011

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:

TAIANA PAKUPI

Prisoner

Tari: David, J

2012: 6 & 8 June

SENTENCE – attempted arson – a twin engine Chinook Columbia helicopter – kerosene used to set helicopter alight from rear – explosion would have caused major disaster - image of country tainted - helicopter valued at US$2.5 million – total loss to owner as a result of damage to helicopter was US$31,060.00 – helicopter used in Hides Gas project - pre-meditation – act of sabotage hindrance to development - guilty plea – entering project site unlawfully – not a youthful offender – nothing tangible done towards repairing wrong – apprehended during dawn raid - first time offender – co-operation with police – de facto provocation – minimal damage to helicopter – acted alone – no one in helicopter to put lives at risk – until offence good background - prisoner a 22 year old traditional subsistence villager, illiterate and lacks sophistication – isolated incident – no evidence of further trouble caused by prisoner’s relatives at the project site – offence committed in the night – no expression of remorse – deterrent sentence serving both as personal and general deterrence against other would-be offenders required - sentence of 3 years IHL – custodial sentence - ss. 19 & 437 (a) Criminal Code.

Facts:

A young man pleaded guilty to attempted arson. Armed with a 500 millilitres coke bottle containing kerosene, a box of matches and scrap paper he approached a Twin Engine Chinook Columbia helicopter parked at a helipad at the Nogoli Hides Gas Project Site, poured the kerosene on the rear opening of the helicopter, struck a match, lit the scrap paper, set the helicopter alight and escaped. The fire was quickly put out by security guards and crew of the helicopter.

Held:

1. Mitigating factors are: pleaded guilty; first-time offender; co-operation with police; de-facto provocation; minimal damage caused to helicopter; acted alone; isolated incident; no one in the helicopter; until offence prisoner had a good background; unsophisticated subsistence villager with no formal education; and no further trouble.

2. Aggravating factors are: dire financial consequences if helicopter, expensive equipment totally incinerated; total cost of repairs high; explosion would have caused major disaster; act of sabotage; setting fire deliberately with kerosene; conduct prevalent; conduct hindrance to economic development and painted bad image of country internationally; pre-meditation; entry unlawful; offence committed in the night; did not give himself up; and not a youthful offender.

3. A sentence of 3 years was imposed.

4. The pre-sentence period in custody of two years was deducted from the sentence.

Cases cited:

The following cases are cited in the judgment:

Public Prosecutor v Don Hale (1998) SC564

Edmund Gima and Siune Arnold v The State (2003) SC730

The State v Titus Kep (2004) N2616

The State v Scott Lalio (2006) N2967

The State v Sylvester Heai Evore (2006) N3236

Richard Liri v The State (2007) SC883

The State v John Telape (2009) N3815

The State v Mapi Mack (2010) N4100

The State v John Jewari, CR No.385 of 2010, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 18 October 2011

Counsel

Joe Kesan, for the State

Mwagawa Mwawesi, for the prisoner

SENTENCE

8 June, 2012

1. DAVID, J: This is a decision on sentence of a young man who was charged for one count of attempted arson under Section 437 (a) of the Criminal Code and convicted after pleading guilty.

2. The depositions contain evidence that support the charge.

3. The principal documents comprising the depositions are as follows:

1. Information containing the charge brought before the District Court for purposes of the committal proceedings.

2. Statement of Facts.

3. Witness List.

4. Exhibit List.

5. Statement of Hari Aluya, security guard dated 8 June 2010.

6. Statement of Agipe Pakupi, security guard dated 8 June 2010.

7. Statement of Willie Aiyuma, Senior Constable dated 8 June 2010.

8. Statement of George ToWellie, Security Co-ordinator of Oil Search Limited at Hides Gase, Nogoli dated 15 June 2010.

9. Statement of Feaver Stuart, helicopter pilot dated 15 June 2010.

10. Statement of Douglas B. Clyde, Project Manager, Columbia Helicopters Limited dated 21 June 2010.

11. Statement of Richard Tanda, Police Constable dated 22 July 2010.

12. Statement of Epara Piuk, Detective Senior Sergeant dated 21 July 2010.

13. Four photographs.

14. Record of Interview conducted on 20 July 2010 in Tok Pisin.

15. Record of Interview, English translation.

16. Antecedent Report of the prisoner.

4. The offence arose from the following short facts. On 7 June 2010 between 7:30 and 8:00 o’clock in the evening, the prisoner was at the Nogoli Hides Gas Project Site (the Project Site), Komo District, Hela Province in Papua New Guinea. At the time, a twin engine Chinook Columbia helicopter bearing registration number P2-CHI owned by an American company called Columbia Helicopters Limited was parked at a helipad on the Project Site. The accused had in his possession a 500 millilitres coke bottle containing kerosene, a box of matches and scrap paper. He jumped over the perimeter fence, walked over to the rear of the helicopter, poured the kerosene on the rear opening of the helicopter, struck a match and lit the scrap paper, then set the helicopter alight and escaped. The fire was quickly put out by security guards and crew of the helicopter.

5. The value of the helicopter was estimated to be US$2.5 million.

6. The incident cost Columbia Helicopters Limited about US$31,060.00 to fix the damage caused to the helicopter and by way of loss of revenue. The short details are; US$28,310.00 for loss of revenue and cost of ferrying the helicopter from Nogoli to Moro in the Southern Highlands Province for repairs; US$2,550.00 for cost of bringing in aviation engineers to inspect and repair the damage caused to the helicopter; and US$200.00 for cost of labour and supplies such as stripper and paint.

7. The helicopter was one of 2 Columbia Chinook helicopters operating under a contract with Oil Search Limited at the Kutubu oil field and Hides Gas at Nogoli. At the time of the incident, no one was in the helicopter and it had about 3000 litres of fuel on board.

8. In his allocutus, the prisoner only said he wished to be released from custody.

9. The prisoner has no prior convictions.

10. The prisoner originates from Nogoli village, Komo in the Hela Province. He comes from a large family. His father has 7 wives. He is married with one young child who is now about 3 ½ years old. He was aged about 20 years when he committed the offence. He has not received any formal education and is therefore illiterate. He was living in the village as an ordinary villager and subsistence farmer up until this offence was committed. His parents are alive. He has been in custody since 8 June 2010 and that works out to be 2 years exactly.

11. Mr. Mwawesi of counsel for the prisoner submitted that factors that go to mitigate the offence in the present case are these:

1. the prisoner pleaded guilty.

2. the prisoner was not a habitual criminal, but a first time offender.

3. the prisoner co-operated with police investigations by making early admissions.

4. the offence was committed as a direct result of frustrations that had compounded over time because the stakeholders of the Hides Gas project were not addressing, to the satisfaction of traditional landowners which included the prisoner’s family, issues concerning royalty payments for traditional land used in the Hides Gas project including the land where the helipad was constructed and the prisoner’s real intention was to make a stern statement by his conduct.

5. minimal damage was caused to the helicopter.

6. repair costs were minimal.

12. Mr. Mwawesi referred me to a decision on sentence delivered by Mogish, J recently this year in The State v Simon Zera which he said was similar to the present case. He invited me to consider and be guided by the decision in determining an appropriate sentence for the prisoner. Counsel said in that case, the prisoner was charged with one count of attempted arson under Section 437 (a) of the Code for setting fire to grass outside the refinery at the Napanapa plant situated outside Port Moresby which spread quickly, but was put out before it reached the refinery averting what might have become a major disaster. In his allocutus, the prisoner said the relevant stakeholders had not settled their claims that went as far back as year 2010 for cash crops destroyed when land was cleared to construct the refinery despite being reminded constantly. In sentencing the prisoner for a period of less than 14 years imprisonment, His Honour emphasised that land was an important resource to Papua New Guineans,...