The State v Robin Warren, Aron Kofa, Franson Kofa, Anrew Unduku Pokapin and John Nakon Gabsie (No 2) (2003) N2418

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Kandakasi J
• Judgment Date: 20 June 2003
• Citation: (2003) N2418
• Judgment Number: N2418
• Year: 2003

Full Title: The State v Robin Warren, Aron Kofa, Franson Kofa, Anrew Unduku Pokapin and John Nakon Gabsie (No 2) (2003) N2418

National Court: Kandakasi J

Judgment Delivered: 20 June 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 70, 165, 167, 169 & 176 of 2002

THE STATE

-V-

ROBIN WARREN,

ARON KOFA,

FRANSON KOFA,

ANREW UNDUKU POKAPIN AND

JOHN NAKON GABSIE

(No. 2)

WEWAK: KANDAKASI, J.

2003:19th and 20th June

DECISION ON SENTENCE

CRIMINAL LAW - Sentence – Arson – Burning down of 19 bush material dwelling houses in group raid early in the morning – Offence committed by a large group of men in revenge of stabbing of one person by another – Group armed with guns and other weapons – Guns used to threaten and frighten victims – Conviction after trial – First time offenders except for one – No remorse personally expressed by offenders maintaining innocence in allocutus – Offence is prevalent – Immediate custodial sentence called for – 15 and 16 years sentence imposed – Criminal Code ss.19 and 436.

Cases Cited:

The State v. Andrew Yeskulu (24/04/03) CR 1431 of 2002.

The State v. Ipu Samuel Yomb [1992] PNGLR 261.

Counsel:

Mr. P. Kaluwin for the State

Mr. G. Korei for the Accused

20th June, 2003

KANDAKASI J: You were all found guilty and convicted on 21 charges of arson contrary to s. 436 (a) and (f) of the Criminal Code. Nineteen of these are for the burning of dwelling houses. The remaining two are for the burning down of two motor vehicles.

Address on Sentence

After the decision on verdict, you requested through counsel for an adjournment to properly prepare and present your submissions on sentence. Your case was therefore adjourned to the 19th of this instant. On the 19th you all addressed the Court on sentence followed by your lawyer’s submissions. All of you maintained your innocence and said but because the Court has found you guilty, you will accept whatever sentence the Court decides to impose on you. You neither expressed any remorse nor pleaded for any leniency.

Relevant Facts

The relevant facts and the circumstances in which you committed these offences are fully set out in the judgement on verdict, delivered on the 18th of this instant. For sentencing purposes however, I note the following:

· a total of 29 houses were burnt down but you have been charged and convicted for burning down 19 houses belonging to a number of people;

· you also burnt down two motor vehicles belonging to two different people;

· you were armed with guns and other weapons, which you used to facilitate the commission of the offence;

· this was a group attack in the early hours of the morning between 5:30 and 7:00 am led by you;

· the attack was in revenge of Odilya stabbing and eventually causing the death of Wendy;

· except for one house, the rest of the houses and the 2 motor vehicles you burnt down belonged to other innocent people;

· pleas against your actions were unheeded; and

· you committed the offences not far away from the township of Wewak.

In addition to noting the above, I also note and take into account your respective personal backgrounds. All of you are settlers in your respective places of residence. You are originally from different places away from the township of Wewak. All of you are in your thirties or going toward it and are married with children. Except for Robin Warren, all of you have a form of employment. Aron and Franson Kofa, you are both employed by Garamut, whilst Andrew Undoku Pokapin is self-employed in a PMV ownership, driving and running business. John Nakon Gabsie is employed with the PNG Defence Force at the rank of a corporal. With the exception of Andrew Undoku Pokapin, I note that all of you have no prior conviction. So this is your first ever offence.

Submissions

In your lawyer’s submission, he argued that, what you said to the Court in your respective addresses on sentence should not be taken to mean that you are not sorry or remorseful for the offences you have committed. He went on to argue that, all of you are first time offenders except for Andrew Undoku Pokapin. The Court should therefore, he submitted impose a sentence that is not the maximum in the exercise of the Court’s discretion under s. 19 of the Criminal Code. He then referred to my own judgement in The State v. Andrew Yeskulu (unreported and yet to be numbered judgement delivered 24/04/03) CR 1431 of 2002, where I suggested some sentencing guidelines.

The State argued for an immediate custodial sentence to serve both as a personal and general deterrence against the kind of actions you have adopted. The State started its submission with the question, “when is the community going to respect the law?” It then stressed that this was a revenge attack by a group of men led by you. The reason for you doing what you did was over Odilya stabbing Wendy, which eventually led to her death. That trouble started and rested with the two of them. It did not involve the entire community on both sides. It did not therefore personally concern and affect you. Notwithstanding that, you led your community to attack the victim’s community most of whom were innocent. Their dwelling houses and motor vehicles which were brought into existence through their hard work over a period of time were reduced into ashes in a few minutes. Counsel for the State also stressed that this was not one house but all of the houses and other structures in the entire community.

He pointed to the prior conviction record against, Andrew Undoku Pokapin and argued that he should be treated differently. Similarly, he argued that John Nakon Gabsie should be treated differently because he is a member of a disciplined force but acted not like one.

The Offence

The offence of arson and its penalty is created and prescribed by s. 436 of the Criminal Code in these terms:

“436. Arson.

A person who willfully 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.”

As I said in The State v. Andrew Yeskulu (supra), Parliament considered this offence to be serious. It therefore prescribed the maximum penalty of life imprisonment after considering all things. Section 19 vests the courts with discretion to impose a sentence lower than the prescribed maximum.

Once again I note, as I did in the case cited that, there is no Supreme Court judgement concerning sentence in arson cases, that might provide us with some guidance as to how an appropriate sentence in an arson case can be arrived at. But there are a number of National Court judgements. Out of all of these judgements, the case of The State v. Ipu Samuel Yomb [1992] PNGLR 261 is viewed as providing some guidance. The Court in that case took 6 factors into account. These are:

1. the deliberate or very reckless putting of lives at risk;

2. the deliberate pouring of kerosene and setting fire to the roof, knowing that people were inside;

3. the deliberate locking of the door, to prevent any escape by any of the occupants;

4. the deliberate cold-blooded planning of the offence;

5. the value of the house and its contents to the occupants; and

6. the complete lack of provocation offered to the defendant by the occupants and their children.

The Court started with a head sentence of 7 years. It then had that reduced to 5 years on account of the offender being a person under the age of 20, he had no prior conviction and that he pleaded guilty. These and other cases subsequent to it highlight the fact that deliberately and willfully setting fire to a dwelling house is an aggravating factor. But even more serious is when the building or structure that is being set on fire has people inside.

On my part, I said in The State v. Andrew Yeskulu (supra) that:

… just as all the other offences have their own categories, arson cases have their own categories. Without limiting the list, I...