State v Sekin [2006] PGNC 74; N4479 (25 August 2006)

N4479

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1592 0F 2000

THE STATE

V

JOE SEKIN

Buka: Cannings J
2006: 23, 25 August

SENTENCE

CRIMINAL LAW – sentences – arson – unlawful wounding – sentence on plea of guilty – 4 years.

A young man argued with his sister, got angry with her, burned down her house and then stabbed her, inflicting a superficial wound. He pleaded guilty to one count of arson and one count of unlawful wounding. The incident happened almost six years ago and in the meantime he has reconciled with the victim.

Held:

(1) The sentence for the arson offence is 2 years.

(2) The sentence for the unlawful wounding offence is 2 years.

(3) They were two different offences so the sentences should be cumulative.

(4) Under the totality principle, the total sentence of 4 years is not excessive.

(5) As the offender has already spent 1 year, 5 months and 1 week in custody and reconciled with the victim, the balance of the sentence will be suspended subject to conditions.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v A Juvenile, "TAA" (2006) N3017
The State v Andrew Yeskulu (2003) N2410
The State v Bart Kiohin 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 Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919
The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801
The State v Prodie Akoi (2004) N2584
The State v Robin Warren and Others (No 2) (2003) N2418
Tom Longman Yaul v The State (2005) SC803

Abbreviations

The following abbreviations appear in the judgment:

ARB – Autonomous Region of Bougainville
CR – Criminal Matter
DCJ – Deputy Chief Justice
J – Justice
N – National Court judgment
No – number
SC – Supreme Court judgment
SCRA – Supreme Court Criminal Appeal
v – versus

PLEA

A man pleaded guilty to arson and unlawful wounding and the following reasons for sentence were given.

Counsel

R Luman, for the State
P Kaluwin, for the accused

INTRODUCTION

1. CANNINGS J: This is a decision on the sentence for a man, Joe Sekin of Kohiso, who pleaded guilty to one count of arson and one count of unlawful wounding.

CONVICTION

2. The offender pleaded guilty to the following facts:

• The offences were committed at Kohiso, Buka, on the morning of 17 September 2000.
  
• The offender was drunk and had an argument with his older sister, Denise Tauti.
  
• He got angry with her and burned down her house, a bush material dwelling.
  
• Later that day, he was still angry with his sister and chased her.
  
• She fell down and he stabbed her on the shoulder with a pocket knife.
  
• She did not sustain a serious injury.
  

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. I administered the allocutus, ie the offender 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:

I apologise for what I have done. But this trouble would not have happened if my sister had not divorced her first husband. It is because of that, that I am in court today. It is my first time in court and I apologise to this Honourable Court.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

Depositions

• The injury inflicted on the victim was only minor.
• He co-operated with the police.
• He was angry with his sister for eloping with a man who was not her husband.
  

Allocutus

• He expressed remorse.
  

Matters raised by defence counsel

• He genuinely felt that his sister had brought shame on the family.
• He has reconciled with the victim and she does not want him to spend any more time in jail.
• He has built her a new house.
  

PERSONAL PARTICULARS

6. The offender, Joe Sekin, was 19 when he committed the offences. He is now aged 25 and married with two children. He is the seventh born in a family of eight. He was educated to grade 6 in 1997 and has never been formally employed.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Kaluwin highlighted the following mitigating factors: the offender pleaded guilty; he expressed remorse; he inflicted only a minor injury on the victim; he has reconciled. A wholly suspended sentence would be appropriate.

SUBMISSIONS BY THE STATE

8. Mr Luman, for the State, agreed that this was not in the ‘worst case’ category of either arson or unlawful wounding. It appears to have been an isolated incident. The presence of reconciliation is acknowledged as a strong mitigating factor.

DECISION MAKING PROCESS

9. 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 is the head sentence for each offence?
  
• step 4: should the sentences be served concurrently or cumulatively?
  
• step 5: what is the effect of the totality principle?
  
• step 6: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 7: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?
10. The maximum sentence for arson under Section 436(a) of the Criminal Code is life imprisonment and for unlawful wounding under Section 322(1)(a) the maximum sentence is three years.

11. 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?

12. Arson is a serious offence. I agree with what Kandakasi J has said in 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. For a recent Buka case, see my judgment in The State v Bart Kiohin and Henry Kevi (2005) N2811. The starting point is ten years imprisonment.

13. As for unlawful wounding, I will use the mid-point of 18 months.

STEP 3: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

Arson

14. I have compared this case with The State v Bart Kiohin and Henry Kevi and found many similarities. I fix a head sentence of two years imprisonment.

Unlawful wounding

15. Stabbing anybody with any sort of knife is a serious matter, fraught with danger to the other person’s life. The offender is lucky not to have faced a more serious charge. I fix the head sentence, also, at two years.

Total potential sentence

Count 1 : 2 years
Count 2 : 2 years
Total : 4 years

STEP 4: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

16. I summarised the principles to apply in this situation in three cases recently decided in Kimbe: The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919; The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801; and The State v A Juvenile, "TAA" (2006) N3017. They were armed robbery cases but the same principles apply irrespective of the nature of the crime.

17. That is:

• First, apply the "one transaction rule". Where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent.
  
• Secondly, where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable, eg burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims.
  
• Thirdly, apply the "totality principle". When the court has arrived at appropriate head sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.
  

18. The one transaction rule does not apply here. The offences were separated in time by several hours. The offender was angry with his sister but had time to cool down before committing his second crime. The fact that he was drunk is his problem. The sentences must be cumulative.

Thus:

2 years + 2 years = 4 years.

STEP 5: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

19. I now look at the total sentence that the offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence, ie one that is ‘over the top’ or manifestly excessive.

20. I do not think a total sentence of 4 years is excessive for these sorts of crimes. There were reasons for what the offender did but they are not good reasons. He was only a fairly young fellow (19) when he did these things but he is now 25 and he needs to stay under sentence so that he can realise that burning down someone’s house and stabbing them are unacceptable ways of dealing with family problems.

STEP 6: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. The offender has spent 1 year, 5 months, 1 week in custody in connexion with these offences and it is proper that that period be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in the table below.

CALCULATION OF FINAL SENTENCE

Length of sentence imposed	4 years
Pre-sentence period to be deducted	1 year, 5 months, 1 week
Resultant length of sentence to be served	2 years, 6 months, 3 weeks

STEP 7: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

22. This is an appropriate case in which to consider a suspended sentence in view of the reconciliation that has taken place. However, strict conditions must be imposed. There is a risk in immediately suspending the sentence that the offender might too quickly forget that he has been convicted of criminal offences involving drunken stupidity and reckless disregard to his sister’s life.

23. The rest of the sentence will be suspended on the following conditions:

1. must within three months after today pay K200.00 cash compensation to the victim and participate in a reconciliation ceremony;
   
2. must reside at Kohiso village and nowhere else except with the written approval of the National Court;
   
3. must not leave Bougainville without the written approval of the National Court;
   
4. must perform at least six hours unpaid community work each week at Tugias School under the supervision of Mr Mola;
   
5. must attend Gagan Catholic Church every Sunday for service and worship and assist the church in its community activities under the supervision of the Parish Priest;
   
6. must report to Buin Police Station every government payweek Friday between 9.00 am and 3.00 pm and sign the register;
   
7. must not consume alcohol or drugs;
   
8. must keep the peace and be of good behaviour;
   
9. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of imposition of sentence;
   
10. the person responsible for filing the probation report will be the Buin Police Station Commander;
    
11. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

24. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the ARB senior welfare officer, any of who may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803, Salika J, Mogish J, Cannings J.)

SENTENCE

25. Joe Sekin, having been convicted of arson and unlawful wounding, is sentenced as follows:

Length of sentence imposed	4 years
Pre-sentence period to be deducted	1 year, 5 months, 1 week
Resultant length of sentence to be served	2 years, 6 months, 3 weeks
Amount of sentence suspended	2 years, 6 months, 3 weeks, subject to conditions
Time to be served in custody	Nil, unless conditions of suspension are breached

Sentenced accordingly.
________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused