State v Lalio [2006] PGNC 27; N2967 (27 January 2006)

N2967

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1606 0F 2005

THE STATE

V

SCOTT LALIO

MADANG: CANNINGS J
14 DECEMBER 2005, 18, 27 JANUARY 2006

SENTENCE

CRIMINAL LAW – indictable offence – Criminal Code, Subdivision VI.2B, offences relating to property and contracts, injuries to property, offences – Section 437, attempts to commit arson – sentence on plea of guilty.

A young man pleaded guilty to one count of attempted arson. He attempted to set fire to the Madang Policewomen’s Barracks. He acted alone. No major damage was done. He was drunk at the time. The maximum penalty for this sort of offence is 14 years.

Held:

(1) In the absence of Supreme Court sentencing guidelines the starting point for sentencing for attempted arson is in the middle of the available range: seven years.

(2) Strong mitigating factors identified were that: the offender did very little damage; the occupants were not directly affected; he acted alone; the offence was not planned; he pleaded guilty; he expressed remorse.

(3) A strong aggravating factor was that he put lives at risk.

(4) The head sentence is three years imprisonment.

(5) A pre-sentence report from the Madang office of the Community Correction and Rehabilitation Service recommended a non-custodial sentence. But it is not appropriate in the circumstances of this case to consider immediate suspension of the entire sentence.

(6) The court, however, qualified the prison sentence by ordering that it can be suspended after the prisoner has served a minimum term of imprisonment of one year if the National Court approves a post-release parole period with strict conditions attached.

Cases cited:
The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
The State v Andrew Yeskulu (2003) N2410
The State v Bart Kiohin Mais and Henry Kevi (2005) N2811
The State v Enni Matthew and Others (No 2) (2003) N2563
The State v Henny Wamahau Ilomo (2003) N2420
The State v Prodie Akoi (2004) N2584
The State v Robin Warren and Others (No 2) (2003) N2418

Abbreviations:
The following abbreviations appear in the judgment:

BES – break, enter and steal
CJ – Chief Justice
CODE – College of Distance Education
DCJ – Deputy Chief Justice
eg – for example
J – Justice
LLG – Local-level Government
N – National Court judgments
OK – okay; all right
PSR – pre-sentence report
SC – Supreme Court judgments
WNB – West New Britain

PLEA

The accused pleaded guilty to attempted arson and the following reasons for sentence were given.

Counsel:
M Ruari for the State
L Vava for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a young man who pleaded guilty to the offence of attempted arson.

BACKGROUND

Incident

The incident giving rise to the charge took place at Madang town in 2005.

Indictment

On 14 December 2005 the accused was brought before the National Court and faced the following indictment:

Scott Lalio of Apugi, Kandrian, West New Britain Province is charged that he on the 8th day of March 2005 at Madang ... attempted to unlawfully set fire to the Madang Policewomen’s Barracks.

The indictment was presented under Section 437(a) (attempts to commit arson) of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

At 4.30 am on 8 March 2005 the accused entered the premises of the Policewomen’s Barracks in Newtown, Madang town, by removing timber from the fence surrounding the Barracks. He then ripped off the flywire around the dining area and set fire to a curtain. That caused a cushioned chair to catch fire. Some policewomen woke up, put out the fire, saw the accused and gave chase. He escaped before being apprehended early the next day.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted him. He is now referred to as the prisoner.

ANTECEDENTS

Mr Ruari for the State notified the court that the prisoner has no prior convictions, in the sense that when he committed the current offence he had not been previously convicted. However, he has three subsequent convictions. In June 2005 he was convicted and sentenced in the District Court as follows:

• possession of an offensive weapon – three months imprisonment;
  
• possession of live ammunition – nine months imprisonment;
  
• possession of dangerous drugs – six months imprisonment.
  

These sentences, totalling 18 months imprisonment, are all cumulative. He is currently serving them at Beon Gaol.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

When I committed this offence I was under the influence of alcohol. There is no other reason that I did this thing. I have broken the laws of the country and I am sorry for that. I say sorry to the court and to everybody inside the courtroom. I ask please for a non-custodial sentence.

OTHER MATTERS OF FACT

I have considered the matters of fact raised in the depositions and in the allocutus to check whether there is anything that has not been raised that may be relevant to the sentence. However, there is nothing.

RELEVANT LAW

Section 437 (attempts to commit arson) of the Criminal Code states:

A person who—

(a) attempts unlawfully to set fire to any thing referred to in Section 436; or

(b) wilfully and unlawfully sets fire to any thing that is so situated that any thing referred to in Section 436 is likely to catch fire from it,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Vava highlighted the following mitigating factors: he pleaded guilty; he expressed remorse; minimal damage done to the building; repair costs minimal; first offender; did not really put lives at risk; not a planned attack.

SUBMISSIONS BY THE STATE

Mr Ruari did not press for a heavy sentence. He pointed out that the main aggravating factor was that it was an unprovoked attack.

PRE-SENTENCE REPORT

To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Madang office of the Community Correction and Rehabilitation Service. A summary of the report follows.

1. Residence – lives at Sisiak No 3, Madang town in family house.
   
2. Family – father is from Kandrian, WNB; mother from Madang – has good family support – parents still alive – they are supportive of their son.
   
3. Marital status – single – no marriage plans imminent.
   
4. Education – grade 9 – 1998 – can speak English.
   
5. Work – subsistence farmer.
   
6. Financial status – dependent on parents and family – mother is employed – family sells some copra, cocoa.
   
7. Health – OK.
   
8. Plans – want to return home, work and do CODE.
   
9. Community involvement – actively involved in community activities – verified by interviews with community leaders – Scott well known to volunteer community corrections officer, Anton Janget – does not have a perfect record in the community but will accept and supervise the court’s decision; John Bernard: ward No 9 member, Madang LLG: not a threat to the community. Victims’ views (ie policewomen residents of barracks): deserves to be penalised; was under influence of alcohol; has shown disrespect.
   
10. Prior criminal record – now serving 18 months for various offences; also convicted in 1998 for BES, sentenced to 18 months.
    
11. Prior probation record: OK.
    

Assessment

• Age 25.
  
• Gave an explanation of the circumstances of the incident: some elements of provocation. [But I cannot take much notice of this as it was not said in court and counsel did not bring it to my attention when the matter returned to court on 18 January 2006.]
  
• Recommended for non-custodial sentence.
  

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what are the considerations that should be taken into account in determining the head sentence, in terms of years?
  
• step 4: what is the head sentence?
  
• step 5: should all or part of the sentence be suspended?
  
• step 6: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1 – WHAT IS THE MAXIMUM PENALTY?

In the present case the maximum penalty is 14 years imprisonment.

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2 – WHAT IS A PROPER STARTING POINT?

From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. Recently the Supreme Court gave detailed sentencing guidelines for manslaughter, murder and wilful murder in Manu Kovi v The State (2005) SC789, Injia DCJ, Lenalia J, Lay J. However, the Supreme Court is yet to give sentencing guidelines for arson or attempted arson.

In the absence of sentencing guidelines I think the proper starting point for sentencing under Section 437 is in the middle of the range: seven years.

STEP 3 – WHAT ARE THE RELEVANT CONSIDERATIONS?

Having identified a starting point for the present case I will now identify the sort of things that should be taken into account when deciding to reduce or lift the sentence (up to the ceiling of 14 years). In identifying these factors I have relied on an arson case I dealt with last year in Buka: The State v Bart Kiohin Mais and Henry Kevi (2005) N2811. In that case I relied on a series of arson cases decided by Kandakasi J: The State v Andrew Yeskulu (2003) N2410; The State v Robin Warren and Others (No 2) (2003) N2418; The State v Henny Wamahau Ilomo (2003) N2420; The State v Enni Matthew and Others (No 2) (2003) N2563; and The State v Prodie Akoi (2004) N2584.

I have reconsidered the considerations and modified them to accommodate the fact that the present case is one of attempted arson. They are:

1 Did the offender cause damage of a relatively low value?

2. Was there no person or class of persons directly affected by the actions of the offender
   

3 Did the offender not put lives at risk?

4 Was there only one offender?

5. Did the offender not plan the offence in a deliberate and calculated manner?
   
6. Did the owner of the property or any other person provoke the offender in ‘the non-legal sense’?
   

7 Was it an isolated incident?

8 Did the offender give himself up after the incident?

9 Did the offender cooperate with the police in their investigations?

10. Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?
    

11 Has the offender not caused further trouble since the incident?

12 Has the offender pleaded guilty?

13 Has the offender genuinely expressed remorse?

14 Is this his first offence?

15 Can the offender be regarded as a youthful offender?

16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
    

Rationale

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be at or near the starting point.

However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

STEP 4 – WHAT IS THE HEAD SENTENCE?

I apply the above considerations as follows:

1 Yes he did very little damage.

2 Yes the occupants of the barracks were not directly affected.

3. No it cannot be said that the offender did not put lives at risk. Setting fire to any building in which people are sleeping inevitably poses a risk to human lives.
   

4 Yes he acted alone.

5. Yes the offence was not planned in a deliberate and calculated manner. It was a spontaneous attack.
   
6. No, no provocation. This was not mentioned in the depositions or allocutus. In the PSR the offender claims that he heard one of the barracks’ occupants say something insulting as he was walking past. But there is no evidence to support this assertion. It would not be fair to consider this.
   

7 Yes it was an isolated incident.

8 No the offender did not give himself up after the incident.

9 Yes the offender cooperated with the police in their investigations.

10 No the offender has not done anything tangible to repair his wrong.

11 Yes he has not caused further trouble since the incident.

12 Yes he pleaded guilty.

13. Yes he expressed remorse. He appreciates that he did the wrong thing and is sorry about what happened.
    

14 No he has other convictions.

15 No cannot be regarded as a youthful offender.

16. No there are no other circumstances of the incident or the offender that warrant mitigation of the head sentence. The offender seemed to suggest that the only reason he did this stupid thing is that he was drunk and out of his mind. The courts in PNG have said consistently over many years that that is not a mitigating factor. Nor is it an excuse for what a person does. The only exception is that if a person has not knowingly become drunk or under the influence of other drugs, eg where another person has spiked his drink. Personal responsibility does not cease upon becoming drunk.
    

Recap

I regard the following as strong mitigating factors:

• No 1 – very little damage;
  
• No 2 – occupants not directly affected;
  
• No 4 – acted alone;
  
• No 5 – offence not planned;
  
• No 12 – he pleaded guilty;
  
• No 13 – he expressed remorse.
  

I regard the following as a strong aggravating factor:

• No 3 – put lives at risk.
  

The other factors are not significantly mitigating (Nos 7, 9 and 11), not significantly aggravating (Nos 6, 8, 10, 14 and 15) or neutral (No 16).

After weighing all these factors and bearing in mind that there are six strong mitigating factors compared to one strong aggravating factor, I consider that the head sentence should be considerably below the starting point of seven years.

I accordingly fix a head sentence of three years imprisonment.

STEP 5 – SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

This is a case where it was appropriate to consider suspending part of the sentence, given the nature of the offence and the small amount of actual damage. Also, I have received a favourable pre-sentence report that indicates the offender has strong family and community support and recommends a non-custodial sentence.

However, I will not impose a non-custodial sentence for three reasons. First, what concerns me about this incident is that it could have been much worse than it turned out to be. As mentioned above, anybody who sets light to a building or a part of it (eg curtains) as in this case is inevitably putting lives at risk. Secondly, the offender is serving time for a number of other offences. Technically they are not prior convictions, in that he was not convicted of them prior to committing this offence. But they are serious matters and the court cannot turn a blind eye to them. Thirdly, the pre-sentence report is not sufficiently detailed to warrant, at this stage, suspending the sentence. No firm conditions are recommended. I would need to see a detailed proposal for a community work program to consider immediately suspending the entire sentence.

I will nonetheless qualify the prison sentence by ordering that it can be suspended after the prisoner has served a minimum term of imprisonment if before the expiration of the term prescribed the National Court approves a post-release parole period with strict conditions attached.

The conditions that I envisage would be suitable are, for example, that the prisoner do some strictly controlled community work; that he submit to regular counselling with an officially recognised and reputable local church or other place of religious worship; that his movements be restricted; that he refrain from consuming drugs; that he be of impeccable behaviour.

I will set a minimum period in custody of one year.

It is not necessary to consider step 6 of the decision making process outlined earlier.

SENTENCE

The Court makes the following order:

1. Scott Lalio, having been convicted of the crime of attempted arson, is sentenced to three years imprisonment in hard labour, one year of which must be served and the balance of two years of which may be suspended by order of the National Court if and when an application for suspension is granted.
   

2 For the avoidance of doubt:

(a) suspension of the above sentence will only come into effect if and when ordered by the National Court; and

(b) there shall be deducted from the term of imprisonment the period in custody that the prisoner has already spent in relation to this offence; and

(c) this sentence shall be served cumulatively upon the existing sentences being served for convictions in the District Court.

Sentenced accordingly.
______________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyers for the accused : Paul Paraka Lawyers