The State v Henry Felap, CR 947 OF 2006; The State v Sumunson Forlker, CR 948 OF 2006; The State v Kapei Sabin, CR 949 OF 2006; The State v Keng Burugen (2006) N3160

• Jurisdiction: Papua New Guinea
• Judge: Davani.J
• Judgment Date: 15 August 2006
• Court: National Court
• Citation: (2006) N3160
• Docket Number: CR 946 OF 2006
• Year: 2006
• Judgement Number: N3160

Full Title: CR 946 OF 2006; The State v Henry Felap, CR 947 OF 2006; The State v Sumunson Forlker, CR 948 OF 2006; The State v Kapei Sabin, CR 949 OF 2006; The State v Keng Burugen (2006) N3160

National Court: Davani.J

Judgment Delivered: 15 August 2006

N3160

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 946 OF 2006

THE STATE

V

HENRY FELAP,

Prisoner

CR 947 OF 2006

THE STATE

V

SUMUNSON FORLKER,

Prisoner

CR 948 OF 2006

THE STATE

V

KAPEI SABIN,

Prisoner

CR 949 OF 2006

THE STATE

V

KENG BURUGEN,

Prisoner

Madang: Davani.J.

2006: 11, 15 August

SENTENCE - plea – arson – offence committed by youths – suspension of sentence appropriate – S 436(a) Criminal Code Act -

SENTENCE - arson – small garden hut destroyed – burning down intentional but not planned - two (2) years appropriate -

Cases Cited:

State v Ipu Samuel Yomb [1992] PNGLR 261

State v Andrew Yeskulu (2003) N2410

State v Peni Bilak (2005) N2866

State v Akena Pawa [1998] PNGLR 387

State v Bernard Bambai (2006) N3019

Kurie Willie v The State [1987] PNGLR 298

State v Frank Kagai [1987] PNGLR 320

Counsel:

J. Wala, for the State

A. Turi, for the Prisoners

15 August, 2006

SENTENCE (No. 1)

1. DAVANI .J: Henry Felap, Sumunson Forlker, Kapei Sabin and Ken Burugen (the ‘prisoners’) all pleaded guilty to one count of arson, charge laid pursuant to s.436(a) of the Criminal Code Act (‘CCA’). This provision reads;

“436. Arson.

A person who wilfully and unlawfully set fire to –

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

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.”

2. Other co-accused Kubul Apuai and Seid Apuai did not appear because they were prevented by bad weather and rough seas, from travelling from Karkar Island to Madang. And I accepted that because since my arrival in Madang in July 2006, that there has been very strong winds and the sea has been very rough. Travel by villagers from the surrounding islands to Madang, has been impossible or if they did travel, it was done at very great risk. And that is an undisputed fact and I take judicial notice of that. I am also aware that the four prisoners now before me, travelled to Madang in late June, 2006 and have not returned home to their island because of the bad weather. The two (2) others were not as fortunate. I gave them the benefit of the doubt and adjourned their cases to the 5 September 2006, call-over, for a date to be allocated for hearing by another judge.

Evidence

3. On 27 September, 2005 at Wakon village, Karkar Island, the prisoners all went to the victim’s house, which was located next to her garden. I have heard that it is her garden house. But for purposes of arraignment on s.436 (a) of the CCA, it was referred to as ‘the building’. The land on which the building was on is the subject of an ongoing land dispute. The prisoners told the victim to leave the land. She did as asked and was removing her belongings, when one of the prisoners, set fire to the building.

4. The building that was burnt is described by the prisoners as a garden house, made of bush materials, of about eight (8) feet by twelve (12) feet, built on the ground and is used by the victim and her husband whenever they leave their village for their garden. It was used as their shelter whilst in the bush. So the valuable possessions that were destroyed in the fire were, as I have heard, garden tools. The charred remains of a saw handle, a hammer and an umbrella were found on the site.

Mitigating Factors

5. Henry Felap, Keng Burugen, Sumunson Forlker, and Kapei Sabin were aged 18, 18, 17 and 22 respectively, at the date of the offence. This is their first offence and their guilty plea saved the court a lot of time.

6. On allocaturs, each one admitted to having committed the offence. They said it was their first time to appear before ‘the big court’ and that they were sorry for what they had done.

7. They asked the court for its mercy and leniency and that the court send them back home to their village, to resolve the matter by custom.

Aggravating Factors

8. The prisoners bold actions in threatening the victim and the eventual burning down of the house is aggravating indeed.

Analysis of evidence and the law

9. The maximum penalty for this offence is life imprisonment but subject to the courts sentencing discretion under s.19 of the CCA. And this discretion is exercised upon consideration of both aggravating and mitigating factors.

10. In arson cases, Judges have often relied on the six (6) factors set by Doherty .J in the State v Ipu Samuel Yomb [1992] PNGLR 261. These factors are;

“(a) the deliberate or very reckless putting of lives at risk;

(b) the deliberate or pouring of kerosene and setting fire to the roof,

Knowing that people were inside;

(c) the deliberate locking of the door, so preventing escape by the occupants;

(d) the deliberate cold-blooded planning of the offence;

(e) the value of the house and its contents; and

(f) the complete lack of provocation offered to the Defendant by the occupants and their children.”

11. Kandakasi .J also discussed categories which he considered appropriate to arson cases in the State v Andrew Yeskulu (2003) N2410. In my view, these categories are an expansion of categories set in Ipu Samuel Yomb (supra), so I am not bound by Andrew Yeskulu (supra).

12. But in plea matters, the courts role is to balance the aggravating factors against the mitigating factors and to then decide on a just sentence.

13. In this case, the plot of land on which the building was located, was the subject of a long on-going dispute. The victim and her husband had been asked on numerous occasions to remove the building but they never did. And the prisoners then took matters into their own hands by approaching the victims, threaten them, then burn the building down.

14. Both counsel have not referred me to any authorities to assist me in my decision making. The cases I refer to here are those that I consider will assist me in reaching a fair decision. I set these out below.

15. In the State v Peni Bilak (2005) N2866, the prisoner burnt down a dwelling house acting on the belief that the owner of the house practiced sorcery to kill another. The prisoner and friends threw stones at the house, forcing the victim and his family to flee from the house. The prisoner then poured kerosene around the house and set it alight. The house was made of bush materials. As a result of the fire, the victim and his family lost their personal belongings. It is also noted that the prisoner and his counterparts went to the victim’s house with the intention of setting it on fire.

16. The court sentenced him to two (2) years in hard labour. It did not consider a suspension of sentence to be appropriate.

17. In the State v Akena Pawa [1998] PNGLR 387, the prisoner burnt down a modern permanent house which included some modern appliances and goods, all worth approximately K85,000. Although the prisoner was a young man, the court did not extend the leniency one would expect in offences involving young offenders because the offence was pre-meditated. The value of the house and goods destroyed and the intentional, pre-meditated actions of the prisoner were factors that determined the head sentence of four (4) years in hard labour.

18. In the State v Bernard Bambai (2006) N3019, the prisoner pleaded guilty to burning his family home, a State owned house which he was renting. The house was valued at about K36,000.00. He was sentenced to three (3) years, execution of the sentence was delayed to allow restitution to take place and if not affected within that period, to show cause why he should not be immediately committed to custody to serve sentence.

19. The prisoners in this case are all aged between 17 and 22. At first glance, one would ask why these teenagers and young men have involved themselves in a matter that falls within the domain of village leaders and elders i.e. a land dispute. But it is common knowledge in Papua New Guinea that land disputes affect all those who are of ‘the clan’ or ‘the tribe’, both young and old. But again, the action by the prisoners is unacceptable and inexcusable.

20. The burnt building is a small garden house, of no significant value, but it is property owned by another, which was intentionally set alight. But the evidence is that the prisoners did not plan to do that.

The prisoners are all youths or young offenders. I have been asked by counsel for prisoners to release these prisoners on probation because of their youth and the nature of the offence. She asked for a sentence of between twelve (12) months to eighteen (18) months to be wholly suspended on conditions.

21. Mr Wala for the State made similar submissions, adding that in cases of this nature, a non-custodial sentence is called for.

22. In cases where young offenders are involved, the courts have almost always imposed non-custodial sentences unless of course the circumstances warrant a custodial sentence.

23. In Kurie Willie v The State [1987] PNGLR 298, Hinchliffe .J in upholding an appeal on conviction from the District Court, held that where young offenders are involved, the court must look to alternatives to imprisonment. His Honour said;

“…prisons do...