State v Mailen [2007] PGNC 232; N5035 (11 December 2007)

N5035

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 965 OF 2004

THE STATE

V

JUNIOR LEO MAILEN

Kimbe: Cannings J
2007: 6, 15 November, 7, 11 December

CRIMINAL LAW – sentence – two offences – unlawful compensation demand (Criminal Code, Section 390A) – arson (Criminal Code, Section 436) – guilty plea to first offence – convicted after trial on second offence – whether sentences concurrent or cumulative – totality principle

The offender entered the yard of a neighbouring family, drunk and angrily demanding compensation over an incident involving his sister. He damaged some properties with his bushknife, threatened and scared away the family, then burned their haus boi. He was convicted of two offences: unlawfully demanding compensation (to which he pleaded guilty) and arson (convicted after trial).

Held:

(1) When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle.

(2) The following notional sentences were passed:

• count 1 (unlawful compensation demand): 3 years;
• count 2 (arson): 5 years;
  

resulting in a total potential sentence of 8 years.

(3) The offences were part of the one transaction, which means the sentences should be served concurrently: a total of 5 years. The totality principle does not require any further reduction.

(4) Accordingly the court imposed a total head sentence of 5 years. The pre-sentence period in custody was deducted, and two years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Alfred Awasa CR 1587/2005, 06.04.06
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 Jacob Patore CR 32/2005, 27.03.07
The State v Mondo Baundo CR 1320/2006, 24.08.07
The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07
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 Rex Hekawi Tami CR 1590/2005, 23.03.06
Tom Longman Yaul v The State (2005) SC803

SENTENCE

An accused was sentenced for two offences, making an unlawful compensation demand and arson, and the following reasons for sentence were given.

Counsel

F Popeu & C Sambua, for the State
B Tanewan, for the offender

11th December, 2007

1. CANNINGS J: This is a decision on the sentence for a young man, Junior Leo Mailen, who committed two offences at Sarakolok near Kimbe on the night of 3 November 2003. He is a resident of Sarakolok and he entered the block of his neighbour, Nane Jeno, angrily demanding compensation over what one of the young men living at Nane's block had allegedly done to his sister. Junior was drunk and demanded that Nane pay K500.00 compensation. He set upon Nane's plants and properties with a bushknife and threatened Nane's family. They got scared, refused to give Junior any money and ran away into the oil palm block. Junior then set fire to Nane's recently constructed bush material haus boi, worth K700.00. He was convicted of two offences: unlawfully demanding compensation (to which he had pleaded guilty) and arson (of which he was convicted after pleading not guilty).

ANTECEDENTS

2. He has no prior convictions.

ALLOCUTUS

3. The offender said:

The court has found me guilty of arson but I did not do this. I ask for probation so I can earn money from oil palm and pay for what I have done.

OTHER MATTERS OF FACT

4. As the offender pleaded guilty to the unlawful compensation demand charge, he gets the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). However, there are, in this case, no particular mitigating factors apparent in those materials.

PRE-SENTENCE REPORT

5. Junior Leo Mailen is now 24 years old, married with two children. His family comes from Ilipaim, Maprik, East Sepik Province, but he was raised at Sarakolok. Both parents are deceased. He is the first born in a family of three. He belongs to the New Apostolic Church. He is educated to grade 6 and has never been wage employed. He is self-supporting financially from the sale of oil palm. There is an ongoing dispute with his uncle as to the ownership and control of the oil palm block of his parents. The victims of his crimes have not received compensation and the offender has shown no interest in apologising or reconciling. It seems that he has a problem with alcohol and this has contributed to an overall attitude problem. Local community leader Danny Mausen is prepared to try to rehabilitate him if he is given a non-custodial sentence. The report does not, however, contain a strong recommendation for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Tanewan submitted that sentences of three years (unlawful compensation demand) and five years (arson) would be appropriate and that they should be served concurrently.

SUBMISSIONS BY THE STATE

7. Mr Sambua conceded that the sentences should be served concurrently.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty for each offence?
• step 2: what is a proper starting point for each offence?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. For count 1 – unlawful compensation demand – the offender was convicted under Sections 390A(a) and (b)(i) (demands for compensation or other payment) of the Criminal Code, which states:

A person who, with intent to extort or gain any thing, payment, or compensation from any person—

(a) demands the thing, payment or compensation; and

(b) in order to obtain compliance with the demand—

(i) causes or threatens to cause injury to any person or damage to any property ...

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

10. For count 2 – arson – the offender was convicted under Section 436 (arson) of the Criminal Code, which states:

A person who wilfully and unlawfully sets fire to—

(a) a building or structure, whether completed or not ...

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

11. Therefore the maximum is seven years for making an unlawful compensation demand and life imprisonment for arson. However I have discretion to impose less than the maximum term and suspend part or all of the sentence for each offence under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT FOR EACH OFFENCE?

12. For the unlawful compensation demand offence there are no Supreme Court sentencing guidelines so I will use the mid-point of three and a half years as a starting point. For count 2, arson, in relation to a dwelling house, the starting point is ten years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

13. This is the first time that I have sentenced anyone for an unlawful compensation demand offence and no precedents have been drawn to my attention. For arson, there are numerous precedents provided by cases I have decided over the last three years in West New Britain, as shown in the table below.

NATIONAL COURT SENTENCES FOR ARSON

No	Case	Details	Sentence
1	The State v Patrick Michael & Leo Koligen CR 281 & 283/2004, 10.10.05, Kimbe	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, Kimbe	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, Kimbe	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, Kimbe	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, Kimbe	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 Awasa CR 1587/2005, 06.04.06, Kimbe	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
7	The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07, Kimbe	Trial – offenders were in a mob that attacked the victim's house late in the afternoon – terrorised the victim and his family – burned down the house and assaulted the victim.	10 years
8	The State v Jacob Patore CR 32/2005, 27.03.07, Kimbe	Trial – offender burned down two bush material houses and associated structures on land that he owned – apparent motive was to remove occupants of the houses as they were members of an ethnic group involved in dispute with another ethnic group living on the land – offences committed late at night – owners of houses inside, asleep.	10 years
9	The State v Mondo Baundo CR 1320/2006, 24.08.07, Kimbe	Guilty plea – offender became angered by a report that his pig had been speared, confronted the people allegedly responsible and, still angry, burned down their bush-material house.	6 years

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

Count 1: unlawful compensation demand

14. Mitigating factors are:

• pleaded guilty;
• first offender;
• de facto provocation (provided by the incident involving his sister).
  

15. Aggravating factors are:

• serious threats of violence;
• danger of people being seriously injured;
• he was terrorising a family.
  

I fix a head sentence of three years imprisonment.

Count 2: arson

16. Mitigating factors are:

• the property had a relatively low economic value;
• it was not the main dwelling house;
• lives not put at risk;
• he acted alone;
• first offender;
• de facto provocation (provided by the incident involving his sister).
  

17. Aggravating factors are:

• no reconciliation or compensation;
• did not plead guilty;
• no remorse;
• accompanied by serious threats of violence.
  

18. Comparing this case with other arson cases, I fix a head sentence of five years imprisonment.

Summary

19. The total potential sentence the offender is facing is:

3 years (unlawful compensation demand) + 5 years (arson) = 8 years.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

20. I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together). I agree with Mr Sambua's concession. The two offences were part of the same incident, involving the same victim. The one transaction rule applies. The sentences should be concurrent. The total potential sentence is therefore reduced to five years.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

20. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. I do not consider that five years would be excessive. The offender did a stupid thing while drunk and traumatised his neighbours and damaged their property. No reduction of the sentence is warranted.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. Yes. 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, which is one year, one month, three weeks, two days.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

22. It has been hard for the defence counsel, Mr Tanewan, to make a case for a suspended sentence as the pre-sentence report is not very favourable and shows that there has been no attempt to compensate or reconcile with the victim. However, the offender pleaded guilty to one of the charges and in the case of the arson charge it has been my practice to suspend all or part of the sentences to give time to the offenders to compensate the victims. I will in the circumstances suspend two years of the sentence on the following conditions:

1. must before release from custody, pay K1,000.00 compensation to Nane Jeno;
   
2. must within five days after release from custody attend the Probation Office and submit to directions from the Senior Probation Officer;
   
3. must within one month after release from custody participate in a reconciliation ceremony supervised by local community leaders and witnessed by the Probation Officer;
   
4. must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
   
5. must not leave WNB Province without the written approval of the National Court;
   
6. must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
   
7. must attend his local Church every weekend for service and worship and submit to counselling;
   
8. must report to the Probation Office at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;
   
9. must not consume alcohol or drugs;
   
10. must keep the peace and be of good behaviour;
    
11. must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;
    
12. 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.
    

23. 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 Probation Office, any of whom 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. (Tom Longman Yaul v The State (2005) SC803).

SENTENCE

24. Junior Leo Mailen, having been convicted of one count of making an unlawful compensation demand and one count of arson, is sentenced as follows:

Length of sentence imposed	5 years
Pre-sentence period to be deducted	1 year, 1 month, 3 weeks, 2 days
Resultant length of sentence to be served	3 years, 10 months, 5 days
Amount of sentence suspended	2 years
Time to be served in custody	1 year, 10 months, 5 days

Sentenced accordingly.
__________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender