The State v Otto Undicki and Jacob Apua and Adolf Nguan and Gabriel Sabatka (2019) N7839

• Jurisdiction: Papua New Guinea
• Judge: Susame, AJ
• Judgment Date: 08 May 2019
• Court: National Court
• Citation: (2019) N7839
• Docket Number: CR. NO. 1052, 1054, 1055 & 1056 OF 2017
• Year: 2019
• Judgement Number: N7839

Full Title: CR. NO. 1052, 1054, 1055 & 1056 OF 2017; The State v Otto Undicki and Jacob Apua and Adolf Nguan and Gabriel Sabatka (2019) N7839

National Court: Susame, AJ

Judgment Delivered: 8 May 2019

N7839

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1052, 1054, 1055 & 1056 OF 2017

THE STATE

V

OTTO UNDICKI

JACOB APUA

ADOLF NGUAN

GABRIEL SABATKA

Kerevat: Susame, AJ

2019: 9, 23, 26 April & 8 May

CRIMINAL LAW – Sentence – Plea- Offence – Arson- S436 (A) Criminal Code – Group Attack – Weapons Used – 54 Houses Burnt Down -Substantial Loss Of Properties – Prevalence Of The Offence- Land Dispute -Act Of Retaliation –De facto Provocation Mitigates Prisoners Blame Worthiness – 10 Years Head Sentnece – 4 Years Suspended With Conditions To Comply – Balance Of 6 Years To Serve – In default Prisoners To Serve Out Their Full Term.

Cases Cited:

The State v Ipu Samuel Yom [1992] PNGLR 261

The State v Yeskulu (2003) N2241

The State v Bart Kiohin Mais & Anor (2005) N2811

The State v Samuel Toleo (2019) N7801

Counsel:

Mr Tugah G, for the State

Ms Ainui J M, for the Prisoner

DECISION ON SENTENCE

8th May, 2019

1. SUSAME AJ: Prisoners are in court to receive their sentence. They pleaded guilty to the charge of Arson under section 436(a) of the Criminal Code. The facts upon which they were convicted are set out below.

Facts

2. There was a land dispute between the Raunsepna people and Lamarain people. On 11 March 2017 the Lamarain people brought in surveyors to survey the land prisoners had an interest in. Cement pegs were placed as demarcations without consent of the prisoners and their clansmen. During the survey gardens were destroyed and a dwelling house of one of their clansman was also destroyed. Two mediations were called by their ward member for the conflicting parties to attend and resolve the dispute. Mediations failed due to non-attendance of the Lamarain people. That subsequently led to a fight on 18 March 2017 between the two disputing parties in which one house from the Raunsepna side was burnt down. The fight continued to Monday 20 March 2017 when the prisoners and their clansmen retaliated and attacked the Lamarain people at about 6:00am & 7:00am. That resulted in burning down of 54 houses.

Issue

3. What is the appropriate sentence court should impose on the prisoners?

4. The mandatory prescribed penalty for offence of arson is life imprisonment. But that is subject to section 19 sentencing discretion court may impose a sentence lower than the maximum. The section is reproduced below.

436. ARSON.

A person who wilfully and unlawfully sets fire to–

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

(b) a vessel, whether completed or not; or

(c) a stack of cultivated vegetable produce; or

(d) a stack of mineral or vegetable fuel; or

(e) a mine, or the workings, fittings or appliances of a mine; or

(f) an aircraft or motor vehicle,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

Allocutus

5. The following are prisoners’ statement in regard to their sentence.

Otto Undicki- I say sorry to the court and the people whose houses were burnt down. They crossed the boundary. I ask the mercy of this court. That’s all.

6. Jacob Apua- I say sorry to this court and owners of the house. They crossed the boundary. I ask for court’s mercy.

7. Adolf Agun – I say sorry to this court and owners of the houses burnt down. They crossed the boundary. I ask for court’s mercy. That’s all.

8. Gabriel Sabakta – I say sorry to this court. I say sorry to the owners of the houses burnt down. They crossed the boundary. I ask for court’s mercy. That is all.

Mitigating Factors

· Prisoners are first time offenders

· They pleaded guilty to the charge

· They acted out of de facto provocation

· The prisoners were remorseful and expressed willingness to pay compensation and help rebuild the houses that were burnt down.

Aggravating Factors

· There was a group attack

· It was a pre-mediated group raid by one group on another village.

· Use of offensive weapons

· Multiple buildings numbering 54 were burnt down.

· By their actions prisoners put other people’s lives at great risk

· Offence is prevalent

· Partial admissions in the record of interview so there was no full cooperation with police

Submissions

9. Court has considered the submissions. Ms Anui submitted mitigating factors outweighed the aggravating factors. She submitted the cases is not a worst type of arson committed. She submitted following the authority of The State v Ipu Samuel Yomb [1992] PNGLR 261 the starting point should be 5 years. She submitted court should impose a 4 years sentence and considering the mitigating factors sentence should be wholly suspended with conditions.

10. Mr Tugah submitted the case does not fall within the worse category to warrant the maximum penalty. But it was a serious case where a big number of houses were burnt down. Mr Tugah referred to my recent judgment in The State v Samuel Toleo (2019) N7801. I suggested a 10 years starting sentence in that case. Based on that Mr Tugah submitted for a 10 years starting sentence and court may impose a sentence higher or less than 10 years depending on the aggravating and mitigating and extenuating factors. Any matter for suspension would be at the court’s discretion.

Court’s View

11. I have considered the facts and circumstances of the cases. It is accepted sentencing practice in this jurisdiction that maximum penalty should rarely be imposed for a particular offence unless the case is considered the worst type. I consider this case is not the worst type to attract the maximum life sentence.

Comparable Judgments

12. I am further guided by the sentencing guidelines and considerations in the cases of The State v Ipu Samuel Yom [1992] PNGLR 261, The State v Yeskulu (2003) N2241 and The State v Bart Kiohin Mais & Anor (2005) N2811. I have also noted the sentencing tariffs in the cases referred to by the counsel. Those cases were decided on their own merits and they are distinguished from the features of this case. In The State v Toleo (supra) although it was a mob attack and large number of house were set alight and destroyed by fire court sentence imposed was to maintain consistency with the sentence few co-accused received earlier on in 2007 and 2008 during separate trials.

13. I endorsed the sentiments I expressed in The State v Toleo at pp.9,10:

“Destruction of properties and burning down of houses in disputes/conflicts is becoming far too common in our society. In respect of a dwelling house it does not matter if it is a permanent, semi-permanent or a bush material house. What matters is shelter is a basic human need. Destruction of it with all the possessions inside is akin to life being destroyed. Families are displaced and left without the comfort of their homes and are denied quite enjoyment of their valuable possessions which they had acquired over time. It is for that reason the law makers prescribed a maximum penalty of life imprisonment to reflect the serious nature of the offence. Instead courts have been imposing sentences far lower than the maximum”.

14. Burning down of buildings, dwelling houses by individuals or during mob attacks over conflicts which can be amicably resolved by the modern legal process or by peaceful Melanesian Ways is quite prevalent in this modern era. I wonder whether the type of light sentences courts are imposing are having any real deterrent effect at all. I maintained my view that head sentence in arson cases should go up say to 10 years for a burning down of a dwelling house.

15. Most of the houses destroyed were bush material houses some with corrugated iron roofs. Few were ‘haus winds’ (huts for resting). A total of 54 houses belonging to 27 owners were completely destroyed with all the personal properties. The estimated value of the loss is not known. But families, men, women and children were placed on very high risk. They were displaced and left homeless.

16. I have noted the concerns and views expressed by the leaders of the community in the pre-sentence report. Most importantly, as leaders we should always promote peaceful settlement of disputes through proper legal process and customary forums. Settlement of conflicts by acts of retaliation, by resorting to criminal acts of violence should be discouraged. I endorse the views expressed for a reconciliation ceremony to be conducted. It must happen at the willingness of the people and leadership of the Lamarain people.

17. There were suggestions made for payment of compensation for loss suffered by the each of the 27 complainants who lost their properties. I cannot plug out a figure and say this is the compensation prisoners will have to pay for the loss without proper assessment report. The evidence in the court file does not offer any assistance nor the pre-sentence report which does not capture the complainant’s views and is considered an unbalanced report. That said though payment of compensation is a noble customary...