State v Rebon [2007] PGNC 197; N4996 (9 March 2007)

N4996

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 29-31 OF 2005

THE STATE

V

OSCAR REBON, ALKEN REBON AND NAUTIM BENAL

Kimbe: Cannings J
2007: 5, 9 March

CRIMINAL LAW – Criminal Code, Section 436 (arson) – burning down of dwelling house as a reprisal regarding a neighbourhood dispute – sentence after a trial at which offenders pleaded not guilty.

Three men were convicted after a trial of arson. They deliberately burned down a bush material house as they had a dispute with the owner. They were members of a large mob that attacked the house with an occupant inside. The incident happened in the late afternoon. Their level of involvement was equal. Their pre-sentence reports strongly favoured suspended sentences

Held:

(1) In the absence of Supreme Court sentencing guidelines the starting point for sentencing for arson regarding a dwelling house is ten years imprisonment.

(2) The mitigating factors were: offence not planned; de-facto provocation; isolated incident; no further trouble caused; first-offenders; favourable pre-sentence reports and they co-operated with the court.

(3) Aggravating factors were: damage of high value; a man and his family were directly affected; lives put at risk; mob attack; did not give themselves up; no reconciliation or compensation; no remorse; did not plead guilty.

(4) The head sentence is ten years imprisonment. Each sentence was fully suspended on conditions including that each offender pay K2,500.00 cash compensation to the victim within three months. If that or any other condition is breached the relevant offender will be required to show cause why he should not be immediately committed to custody to serve the balance of his sentence.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271
The State v Alfred Awesa CR 1587/2005, 06.04.06
The State v Bart Kiohin and Henry Kevi (2005) N2811
The State v Bernard Bambai CR 1931/2005, 23.03.06
The State v Bonifas Bowa CR 1930/2005, 23.03.06

The State v Brendan Oll and Nathan Saisai (2004) N2544
The State v Enni Matthew and Others (No 2) (2003) N2563
The State v Henny Wamahau Ilomo (2003) N2420
The State v Mathias Inabari (2004) N2587
The State v Patrick Michael & Leo Koligen CR 281 & 283/2004, 10.10.05
The State v Pelly Vireru & Spelly Kaiwa CR 468 & 469/2002, 20.12.05
The State v Prodie Akoi (2004) N2584
The State v Rex Hekawi Tami CR 1590/2005, 23.03.06
The State v Robin Warren and Others (No 2) (2003) N2418

SENTENCES

This is a judgment on sentences for arson.

Counsel

F Popeu, for the State
O Oiveka, for the offenders

9 March, 2007

1. CANNINGS J: This is a decision on sentences for three men convicted after trial of arson. On 21 December 2006 I convicted the three offenders – Oscar and Alken Rebon and Nautim Benal – of arson following a trial at which they pleaded not guilty. They committed the offence at Tamba oil palm settlement, near Kimbe, in October 2004. They burned down a bush-material dwelling house in which the complainant, Blakie Yalopi, and his family were living. The incident happened in the late afternoon, while the complainant was asleep in the house. The offenders joined with a number of others in raiding the complainant's house, assaulting Blakie, terrorising him, his wife and children and setting fire to the house as a reprisal for an assault committed by Blakie and his relatives against a friend of the co-accused, Wain Latiti. The complainant escaped through the floorboards of his house.

2. The direct cause of the incident was that one of the complainant's pigs had strayed into a nearby block belonging to the family of the third offender, Nautim Benal. Nautim's mother speared the pig. Blakie demanded compensation but his demand was refused. Supporters of Blakie then assaulted Wain and Wain was taken to the hospital for treatment. Wain's supporters – including the three offenders – then staged their attack on Blakie's house, burning it down. There is a history of ill will between Blakie and his supporters and the families of the three offenders and their supporters. Wain Latiti, a Tolai man, died between the day of the incident and the time of the trial due to causes unknown. It was not suggested in the trial that he had died due to injuries caused by his being assaulted on the day of the incident. There was evidence at the trial that Wain had an ongoing problem with Blakie who he regarded as an illegal settler or squatter. Wain was trying to have Blakie evicted from the settlement as he was, is still not, a block-holder, and according to some people at Tamba was, and still is, a troublemaker. This was not a case where the court was left wondering about the motive for commission of the crime. The offenders were angered by the assault on their friend Wain and they and the people they acted in concert with were angry with a man who they regarded as a troublemaker and an outsider who did not belong in their community.

ANTECEDENTS

3. None of the offenders has any prior convictions.

ALLOCUTUS

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

Oscar Rebon: This is my first time to be convicted of any offence. I want to ask this court for mercy by giving me probation and a non-custodial sentence.

Alken Rebon: I ask the court to give me a second chance and show me mercy. I request a non-custodial sentence.

Nautim Benal: I ask for mercy from the court. If the court puts me on probation I will try to pay some compensation.

PRE-SENTENCE REPORTS

5. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received pre-sentence reports under Section 13(2) of the Probation Act. The reports, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, are summarised below.

OSCAR REBON

Age: 35-year-old male.

Family background: parents are from Kokopo, ENB Province – born and raised in WNB, at Tamba – parents settled in Tamba in 1968 – fifth born in family of eight – lives on the family block at Tamba, Section 5, with his wife and children, his father and other family members.

Marital status: Married with three children.

Education: grade 6, Tamba Primary School.

Employment: has worked as a carpenter intermittently, most recently in 2005-2006, but currently unemployed.

Health: some backache but otherwise OK.

Financial status: has a bank account with a balance of K200.00; earns income from the oil palm block but his father controls the oil palm money; also has a chainsaw, which he hires to others. Family members in other parts of the country will help him pay compensation if he is ordered to do so.

Plans: wants to build a separate house for his wife and family – may go back to carpentry.

Attitude of community to the offence: the complainant, Blakie Yalopi, is not highly regarded in the community – regarded as a troublemaker. The local community wants the offender to be given probation as he has already been engaged to build a new classroom at the Tamba Primary and Elementary School in 2007.

Community background: highly regarded in Tamba community – involved with both United and SDA Churches – United Church pastor and Village Court magistrate speak highly of him.

Victim's attitude: the victim, Blakie Yalopi says the total value of properties destroyed was K47,000.00 but he would be willing to accept K15,000.00 and to give the offenders time to pay.

Recommendation: the offender is suitable for probation – should be ordered to build a new house for complainant and pay compensation.

ALKEN REBON

Age: 24-year-old male.

Family background: as per his brother Oscar, the first co-offender.

Marital status: Single.

Education: grade 10, Moramora Technical School.

Employment: no formal employment history other than working the family's oil palm block.

Health: some backache but otherwise OK.

Financial status: has a bank account with a balance of K200.00; earns income from the oil palm block but his father controls the oil palm money; also has a chainsaw, which he hires to others. Father will help him pay compensation if he is ordered to do so.

Plans: wants to attend Hagen Technical School next year to do an electrical course.

Attitude of community to the offence: the complainant, Blakie Yalopi, is not highly regarded in the community – regarded as a troublemaker.

Community background: well regarded in Tamba community – involved with United Church – United Church pastor and Village Court magistrate speak highly of him – regarded as quiet and humble person.

Victim's attitude: as per Oscar.

Recommendation: the offender is suitable for probation – should be ordered to build a new house for complainant and pay compensation.

NAUTIM BENAL

Age: 31-year-old male.

Family background: parents are from East Sepik Province – born and raised in WNB, at Tamba – second born in a family of four – only male in the family – lives on the family block at Tamba, Section 5, with his mother – his father died in 1986 and that is when he took over the running of the oil palm block.

Marital status: Married with four sons.

Education: grade 8, Kimbe Secondary School, 1997; Moramora Technical School 1999-2000.

Employment: had short-term employment in 2001 – otherwise no formal employment – works the family oil palm block.

Health: some backache and eye problem but otherwise OK.

Financial status: has a bank account with a balance of K700.00; earns income from the oil palm block – still repaying loan that his deceased father had not fully repaid – is willing to pay compensation but would need time to pay.

Plans: wants to reconcile with the victim and restore peace in the community.

Attitude of community to the offence: the complainant, Blakie Yalopi, is not highly regarded in the community – regarded as a troublemaker.

Community background: highly regarded in Tamba community – involved with Catholic Church – local catechist and Village Court magistrate speak highly of him.

Victim's attitude: the victim, Blakie Yalopi says the total value of properties destroyed was K47,000.00 but he would be willing to accept K15,000.00 and to give the offenders time to pay.

Family attitude: his wife Leonie Benal says that they have a steady marriage and that the offender is a hard working person – she and the children will suffer if he goes to jail.

Recommendation: the offender is suitable for probation – should be ordered to build a new house for complainant and pay compensation.

6. The pre-sentence reports for the offenders are very similar. They are young men, born and raised in the Kimbe area, at the Tamba oil palm settlement. All are well regarded in the community. They have not been in trouble with the law before. The similarity in their personal circumstances, together with their equal involvement in the crime, means that they will be treated the same for sentencing purposes.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Oiveka highlighted the following mitigating factors: they are first offenders; they have been found suitable for probation; they are not a danger to the community. He submitted that the reason for the incident was well documented. The victim, Blakie, is a known troublemaker. There were many other offenders involved but for reasons unknown they were not charged by the police. The problems will remain festering in the Tamba Community if they are sent to prison. The best order the court could make is for restitution.

SUBMISSIONS BY THE STATE

8. Mr Popeu, for the State, submitted that the offenders had committed a serious offence in which people could have been killed. None of the offenders had expressed remorse. A custodial sentence of about five years plus an order for them to build a new house for the victim would be most appropriate.

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 sentences have been imposed for equivalent offences?
• step 4: what should the head sentence be?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. The offenders have been convicted of arson under Section 436(a) of the Criminal Code. The maximum penalty is life imprisonment. The court has a discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. 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. In a case in Buka in 2005, The State v Bart Kiohin and Henry Kevi (2005) N2811, I noted the absence of Supreme Court sentencing guidelines for arson so I developed some myself. I relied on a series of decisions by Kandakasi J in, for example, 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 the serious offence of burning down a dwelling house I consider the starting point is ten years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?

12. Before I fix a sentence, I will consider sentences I have handed down in other arson cases recently in West New Britain. These cases are shown in the following table.

SENTENCES FOR ARSON, WEST NEW BRITAIN, 2005-2006, CANNINGS J

No	Case	Details	Sentence
1	The State v Patrick Michael & Leo Koligen CR 281 & 283/2004, 10.10.05	Guilty plea – victim of arson was alleged to have sexually penetrated the daughter of one of the offenders – offenders were demanding compensation from victim – went with a mob – offenders ordered others to burn down the victim's bush material house.	3 years, 3 years
2	The State v Pelly Vireru & Spelly Kaiwa CR 468 & 469/2002, 20.12.05	Guilty plea – dispute between one of the offenders and brother of a young female – brother damages windscreen on a bus belonging to one of the offenders – offender comes back with co-accused and a fight ensued and a dwelling house valued at over K30,000.00 was burnt down.	5 years, 5 years
3	The State v Bernard Bambai CR 1931/2005, 23.03.06	Guilty plea – a husband-wife argument (between the offender and his wife) – offender, drunk, deliberately set a pile of clothes on fire in the living room, causing the house to burn down – government property, valued at K36,000.00.	3 years
4	The State v Rex Hekawi Tami CR 1590/2005, 23.03.06	Guilty plea – prisoner suspected victims of stealing his money – pours kerosene and burned a dwelling house whilst under the influence of alcohol – victim and family were asleep in the house at the time.	6 years
5	The State v Bonifas Bowa CR 1930/2005, 23.03.06	Guilty plea – alleged infidelity of wife and victim – prisoner went with an angry mob – dwelling house was burnt down and properties looted – also convicted of stealing.	5 years
6	The State v Alfred Awesa CR 1587/2005, 06.04.06	Guilty plea – victim had smashed a beer bottle over offender's head – offender went to victim's house armed with bush-knife – chased everyone away and burned down the house.	5 years

13. It will be observed that in all of those cases the offenders have pleaded guilty to arson in relation to a dwelling house. The sentences have been in the range of three to six years.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 13 focus on what the offenders have done since the incident and how they have conducted themselves. Numbers 14 to 16 look at the personal circumstances of the offenders and give an opportunity to take into account any other factors not previously considered.

1 Did the offenders cause damage of a relatively low value? No, a person's home is their "castle" – whether it is a mansion on Touaguba Hill in Port Moresby or a bush material house on the edge of an oil palm settlement in West New Britain. The Supreme Court recognised in Gimble v The State [1988-89] PNGLR 271 that any crime that interferes with the peace or privacy of a person's home is very serious. Whatever its economic value, a person's home is sacred. This sentencing principle has been recognised in many recent cases, eg The State v Brendan Oll and Nathan Saisai (2004) N2544, Kandakasi J (breaking, entering and stealing) and The State v Mathias Inabari (2004) N2587, Gavara-Nanu J (unlawful killing). The victim in this case claims his house and contents were worth K47,000.00, but that figure is unrealistic, given the evidence that was adduced at the trial. I estimate the economic value of the house and contents at K5,000.00. The fact that the economic value was modest, however, does not detract from the fact that the real value of the house was very high. This is an aggravating factor.

2 Was there no person or class of persons directly affected by the actions of the offenders? No, a man and his wife and family were directly affected. Even though it was of limited economic value and they are thought by many members of the community to be illegal settlers, it was their home and burning it down had an immediate and direct impact on their lives.

3 Did the offenders not put lives at risk? No, the victim Blakie was asleep in the house at the time.

4 Was there only one offender? No, it was a mob attack.

5 Did the offenders not plan the offence in a deliberate and calculated manner? Yes, it was a spur of the moment mobilisation of people organised as a reprisal for an assault on one of their friends.

6 Did the owner of the property or any other person provoke the offender in 'the non-legal sense'? Yes, the cause of the problem was, in one sense, the victim's errant pig who dug up the kaukau garden of one of the offender's mother. It appears from the evidence that the pig and its owner were both regarded as repeat offenders.

7 Was it an isolated incident? Yes.

8 Did the offenders give themselves up after the incident? No.

9 Did the offenders cooperate with the police in their investigations? Neutral. They co-operated to some extent but denied involvement in the crime.

10 Have the offenders done anything tangible towards repairing their wrong, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what they did? No.

11 Have the offenders not caused further trouble since the incident? Yes.

12 Have the offenders pleaded guilty? No.

13 Have the offenders genuinely expressed remorse? No. Mr Popeu rightly pointed out that none of them expressed any remorse in the allocutus.

14 Is this the first offence? Yes, they are all first-offenders.

15 Can any be regarded as a youthful offender? No.

16 Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes. They are all well regarded in their local community. Their pre-sentence reports are considerably favourable. Everything points to them being good people who did a bad thing. The court also notes that each one of them has been diligent in attending callovers, complying with bail conditions and attending their trial. Each has displayed a high degree of co-operation with and respect for the court and its processes.

15. After weighing all these factors (nine aggravating versus six mitigating), comparing this case with the other recent WNB arson cases and bearing in mind, in particular, that the offenders by their actions put lives at risk and traumatised a family, then took this matter to trial, and having been convicted expressed no remorse, the head sentence needs to be the highest that I have passed for arson. There is no reason to fix a sentence below the starting point identified earlier. I therefore impose a head sentence of ten years imprisonment on each offender.

STEP 5: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERMS OF IMPRISONMENT?

16. The offenders have spent time in custody in connexion with this offence and it is proper that those periods 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 terms of imprisonment the whole of the pre-sentence periods in custody: three weeks and three days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

17. Sections 19(1)(f) and (6) of the Criminal Code allow the National Court to suspend all or part of a sentence, provided that the offender enters into a recognisance (a pledge) to comply with conditions set by the Court. In all of the arson cases I have dealt with in this province I have suspended the sentences on condition that the offenders make restitution or pay compensation to the victims within a certain period. In some cases the offenders have been unable to comply with the conditions and have been committed to custody to serve the rest of their sentences. In the present case I have decided that I should suspend the sentences even though it is a very serious case of arson as the offenders took the matter to trial and expressed no remorse. In one sense they deserve to go to jail immediately. That would send a signal to the people of this province that burning down a family's house is a reprehensible and unacceptable criminal act – even if it is thought that they are squatters. There are lawful means of evicting people from land that is not theirs. Raiding their house, terrorising them and burning down their house is not one of them. On the other hand, the pre-sentence reports are so strongly favourable that they seem to deserve to be given the chance to reconcile with the victim and compensate him for his losses. I will suspend the entire sentence for each offender on the following conditions:

(a) must within three months after the date of sentence each pay K2,500.00 cash compensation to the victim and participate in a reconciliation ceremony supervised by the Village Court;

(b) must attend the first sittings of the National Court at Kimbe after the date that is three months after the date of sentence, to demonstrate compliance with condition (a);

(c) must within six months after the date of sentence pay for and build a new classroom for Tamba Primary and Elementary School;

(d) must reside at Tamba and nowhere else except with the written approval of the National Court;

(e) must not leave WNB Province without the written approval of the National Court;

(f) must perform at least six hours unpaid community work each week at Tamba United Church under the supervision of the Senior Pastor;

(g) must attend either Tamba United Church or some other recognised Church every weekend for service and worship and assist the church in its community activities under the supervision of the Senior Elder;

(h) must report to the senior Probation Officer at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;

(i) must not consume alcohol or drugs;

(j) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the complainant and his family;

(k) must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;

(l) if anyone of the offenders breach 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.

SENTENCE

18. Oscar Rebon, having been convicted of the crime of arson, is sentenced as follows:

Length of sentence imposed	10 years
Pre-sentence period to be deducted	3 weeks, 3 days
Resultant length of sentence to be served	9 years, 11 months, 4 days
Amount of sentence suspended	9 years, 11 months, 4 days
Time to be served in custody	Nil – subject to compliance with conditions of suspended sentence

Alken Rebon, having been convicted of the crime of arson, is sentenced as follows:

Length of sentence imposed	10 years
Pre-sentence period to be deducted	3 weeks, 3 days
Resultant length of sentence to be served	9 years, 11 months, 4 days
Amount of sentence suspended	9 years, 11 months, 4 days
Time to be served in custody	Nil – subject to compliance with conditions of suspended sentence

19. Nautim Benal, having been convicted of the crime of arson, is sentenced as follows:

Length of sentence imposed	10 years
Pre-sentence period to be deducted	3 weeks, 3 days
Resultant length of sentence to be served	9 years, 11 months, 4 days
Amount of sentence suspended	9 years, 11 months, 4 days
Time to be served in custody	Nil – subject to compliance with conditions of suspended sentence

Sentenced accordingly.
__________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offenders