The State v Samson Leila (Prisoner) (2012) N4770

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 24 August 2012
• Court: National Court
• Citation: (2012) N4770
• Docket Number: CR. No.734 OF 2011
• Year: 2012
• Judgement Number: N4770

Full Title: CR. No.734 OF 2011; The State v Samson Leila (Prisoner) (2012) N4770

National Court: David, J

Judgment Delivered: 24 August 2012

N4770

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JSUTICE]

CR. No.734 OF 2011

BETWEEN:

THE STATE

AND:

SAMSON LEILA

Prisoner

Mt. Hagen & Minj: David, J.

2012: 26 July & 16 & 24 August

CRIMINAL LAW – sentence – arson – two counts - burning of two dwelling houses – permanent house valued at K120,000.00 – bush material house valued at K5,000.00 – substantial loss by victim and family – complete lack of provocation – prisoner apprehended and handed over to police – nothing tangible done by prisoner to repair wrong – expression of remorse not genuine – prisoner not youthful offender – prevalence of offence - lives not put at risk – prisoner acted alone - no pre-meditation - isolated incident – co-operation with police during investigations – no further trouble since incident – convictions through guilty pleas – first offender – victim an in-law - prisoner traditional villager, illiterate and lacks sophistication – prisoner has no means to restitute or pay compensation –deterrent sentence serving both as personal and general deterrence against other would be offenders required – first count, sentence of 7 years imprisonment in hard labour – second count, sentence of 4 years in hard labour – sentences to be served concurrently – effective sentence 7 years imprisonment in hard labour - sentence partly custodial and non-custodial – Criminal Code, Section 19 & 436 (a).

Cases cited:

Public Prosecutor v Kerua [1985] PNGLR 85

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

Mase v The State [1991] PNGLR 88

The State v Ipu Samuel Yomb [1992] PNGLR 261

State v Akena Pawa [1998] PNGLR 387

The State v Andrew Yeskulu (2003) N2410

The State v Robin Warren (No 2) (2003) N2418

The State v Henny Wamahau Ilomo (2003) N2420

The State v Enni Matthew (No 2) (2003) N2563

The State v Prodie Akoi and Steven Akoi (2004) N2584

The State v Bart Kiohin Mais (2005) N2811

The State v Peni Bilak (2005) N2866

The State v Bernard Bambai (2006) N3019

Emil Kongian v The State (2007) SC928

The State v Yunati Epa (2008) N3309

The State v James Wakis (2008) N3426

The State v Anton Towakra (2009) N3845

The State v Mapi Mack (2010) N4100

The State v Mono Kukiwa, CR No.1093 of 2008, Unreported & Unnumbered Judgment of David, J delivered in Mt. Hagen on 22 March 2011

Counsel:

Joe Kesan, for the State

Philip L. Kapi, for the prisoner

SENTENCE

24 August, 2012

1. DAVID, J: On 26 July 2012, I convicted the offender on pleas of guilty to two counts of wilfully and unlawfully setting fire to two dwelling houses belonging to one Andrew Andup on 12 April 2011 at Panda village, Dei District, Western Highlands Province in Papua New Guinea contrary to section 436 (a) of the Criminal Code. The prisoner appears before me for sentence from custody. This is the sentence of the Court.

2. The short facts presented to the Court for purposes of arraigning the prisoner are these. The prisoner was at Panda village, Dei District in the Western Highlands Province in the early hours of Tuesday, 12 April 2011 at about 01:00 o’clock. At the time, he had been drinking and was under the influence of alcohol. The victim, Andrew Andup owned two dwelling houses, one a permanent house valued at K120,000.00 and the other a bush material house valued at K5,000.00. He went to the victim’s area and set fire to both houses and got burnt down. At the time when the prisoner burnt the houses, he had no lawful reason to do so.

3. On his allocutus, the prisoner said he burnt down the houses as a result of an existing dispute and animosities that had arisen between his family and the victim’s in connection with two blocks of land at the village that his father had acquired from the victim. His family used these blocks, one for building their houses on and the other to plant coffee trees on. At one stage, the victim took over the coffee block as he wanted to plant coffee trees as well, but later abandoned it. When he left, other people not related to him helped themselves by harvesting coffee and benefitting monetarily. His father managed to take the coffee block back, but that brought about his death. Thereafter, the victim wanted the coffee block to be returned to him.

4. Of the four siblings in the family, apart from himself, the rest have gone to school. He sought financial assistance from the complainant to pay for school fees, but received no response from him. Instead, one day, his house with his young male child inside was set alight. Fortunately, his son was saved by a female walking by. The victim undertook to do something to appease the prisoner’s family for the ordeal his child had gone through and the burning down of the prisoner’s house, but nothing materialized. Sometime later, another house of his was set alight, but he managed to put the fire out. He got angry and burnt the victim’s two houses.

5. He admitted breaking the law, said sorry and begged the Court to have mercy.

6. I directed the Probation Service in Mt. Hagen to compile and file a Pre-sentence Report on the application of the prisoner through his counsel. I have received the report which I have considered. The Probation Service has recommended that I should impose a non-custodial sentence.

7. The prisoner does not have any criminal convictions recorded against him.

8. The prisoner is originally from Anji village, Wapenamanda District in the Enga Province. Until the offence, he was residing at New Camp, Panda village, Dei District in the Western Highlands Province. He was initially married to one Cathy Kelmend and they have a son called Mason from the marriage who is about 5 years old now. He left Cathy and married one Roselyn. He has no children from his relationship with Roselyn. He is a subsistence villager and is aged about 28 years now having been born in 1984. His father is deceased and is survived by his mother. There are four siblings in the family comprising three brothers and a sister and he is the eldest. He is a member of the Apostolic Church. He has not received any formal education. He has been in custody since 17 April 2011 and that works out to be one year, 4 months and 1 week as of today.

9. In mitigation, it was submitted that; first, the prisoner pleaded guilty; second, the prisoner is a first offender, there being no criminal convictions recorded against him; third, he expressed remorse; and fourth, elements of provocation in the non-legal sense were present.

10. The defence urged the Court to impose sentences between 4 to 5 years for the first count and 1 to 2 years for the second count.

11. In aggravation, it was submitted as follows. First, two houses were burnt down and damage of substantial value had been caused. The value of the permanent house including its contents was estimated at K120,000.00 and the value of the bush material house including its contents was estimated at about K10,000.00. Second, the victim was innocent of any wrong-doing, there being a complete lack of provocation on his part to warrant the burning down of his houses.

12. Mr. Kesan submitted that since there were no sentencing guidelines prescribed by the Supreme Court for arson cases, the Court apply the sentencing guidelines suggested in decisions of the National Court in The State v Ipu Samuel Yomb [1992] PNGLR 261 and The State v Andrew Yeskulu (2003) N2410. He suggested that sentences between 5 to 10 years for the first count and a term less than 5 years for the second count were appropriate.

13. Section 436 of the Code creates the offence and prescribes the penalty. This is a serious offence as is indicated by the penalty. The maximum penalty to which an offender is liable is imprisonment for life. A lesser determinative term could be imposed in the exercise of the Court’s discretion by virtue of Section 19 of the Code. This discretion is exercised upon the consideration of both the mitigating and aggravating factors present in a particular case.

14. I concur with Mr. Kesan that there are no sentencing guidelines enunciated by the Supreme Court for arson cases. However, the criteria applied by Doherty, J in Ipu Samuel Yomb and those suggested by Kandakasi, J in Andrew Yeskulu have often been applied in arson cases.

15. In Ipu Samuel Yomb, the prisoner pleaded guilty to one count of arson in setting fire to the house occupied by his sister in law and her family at night. There were children in the house. The fire was pre-planned. The door was locked from the outside by the prisoner. This act was in reprisal for the ill treatment of his sister by her husband, who was the brother of the victim of the arson. The Court there started with a sentence of 7 years which was then reduced to 5 years.

16. In Andrew Yeskulu, the prisoner burnt down an elementary school building built of bush materials housing three classrooms. Land dispute was claimed to be the reason for burning down the building. Teaching...