State v Kondave [2007] PGNC 241; N5479 (11 October 2007)

N5479

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1450 OF 2006

THE STATE

V

DAVID KONDAVE

Madang: Cannings J
2007: 4, 11 October

CRIMINAL LAW – sentence – arson – Criminal Code, Section 436 – offender acted with two others – set fire to and destroyed house and contents – motivated by belief that homeowner was a sorcerer – guilty plea – sentence of 6 years.

The offender pleaded guilty to joining two of his friends in burning down the house of a person in their village whom they believed was a sorcerer.

Held:

(1) The starting point for sentencing for arson regarding a dwelling house is ten years imprisonment.

(2) Mitigating factors are: lives not at risk; de-facto provocation; isolated incident; co-operated with police; bel kol; no further trouble; pleaded guilty; remorse; first-time offender; genuine belief in sorcery. Aggravating factors are: damage of high value; a man and his family were directly affected; group raid; planned arson; did not give himself up.

(3) A sentence of six years was imposed. The pre-sentence period in custody was deducted and all of the sentence was suspended subject to conditions including payment of compensation within six months.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Alfred Awesa 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 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

This was a judgment on sentence for arson.

Counsel

M Ruari, for the State
D Joseph, for the offender

11th October, 2007

1. CANNINGS J: This is a decision on sentence for a young man from the Bundi area who pleaded guilty to one count of arson, arising from the following facts. He and two others armed themselves with bushknives and approached the house of the victim, Mara Leo Kongi, in Aranam village in the Bundi area. They saw the victim's daughter and asked where her mother, Agatha Kongi, was. When the daughter replied that her mother was in the garden, the offender poured kerosene on the house, set fire to it and the house was completely burned down. It was a semi-permanent house, the victim's family home, worth K4,000.00. Properties inside it were also destroyed, also worth K4,000.00. The total damage bill was K8,000.00. The offender and his friends were motivated by the belief that the victim's wife was a sorcerer.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. 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:

It is true that I did this but there are reasons. I did it because of the death of my blood brother, which the elders in the village found was due to sorcery. It was the victim and his wife who caused my brother's death. They have killed a lot of people through sorcery and they have both been warned that they should not do it. The community is aware that they both practise sorcery. It was not only me who was responsible for burning their house. Plenty of others were involved. We wanted to show them that they should move out. Now I have realised that what I have done is not according to the laws of this country. I apologise to the victims from my heart for what I have done. I say sorry to my family for giving a bad image of the family. I promise before the court and God that I will never repeat what I have done, in my life time. I am a first time offender and a grade 12 student and I want to continue my education. I ask for mercy and probation.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). He cooperated with the police and made admissions in his police interview. Some bel kol has been paid.

PERSONAL PARTICULARS

5. David Kondave is 22 years old, single and educated to grade 12.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Joseph argued for a sentence of one to three years, all of which should be suspended. The genuine belief in sorcery is a mitigating factor.

SUBMISSIONS BY THE STATE

7. Mr Ruari argued for a sentence of 10 years, most of which should be in custody.

DECISION MAKING PROCESS

8. 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 is the head sentence?
• 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?

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

STEP 2: WHAT IS A PROPER STARTING POINT?

10. As I have said in recent arson cases, the starting point for sentencing for the serious offence of burning down a dwelling house is ten years imprisonment (The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07; The State v Jacob Patore CR 32/2005, 27.03.07).

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY?

11. I have recently imposed ten-year sentences in the two arson cases referred to above, both of which went to trial. On guilty pleas, the sentences have been lower, as shown in the following table.

TABLE 1: NATIONAL COURT SENTENCES FOR ARSON,
WEST NEW BRITAIN, 2005-2007, 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
7	The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07	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	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

STEP 4: WHAT IS THE HEAD SENTENCE?

12. 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 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.

1. Did the offender 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 in 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.
   
2. Was there no person or class of persons directly affected by the actions of the offender? No, a man and his family were directly affected.
   
3. Did the offender not put lives at risk? Yes, no one was in the house when it was burned.
   

4 Was there only one offender? No.

5. Did the offender not plan the offence in a deliberate and calculated manner? No – I reject defence counsel's submission that it was a spur of the moment thing.
   
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 the community's belief that the victim and his wife were sorcerers.
   

7 Was it an isolated incident? Yes.

8 Did the offender give himself up after the incident? No.

9. Did the offender cooperate with the police in their investigations? Yes.
   
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? Yes, bel kol has been paid – K100.00 cash and a pig.
    

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

12 Has the offender pleaded guilty? Yes.

13. Has the offender genuinely expressed remorse? Yes.
    

14 Is this the first offence? Yes.

15 Can he be regarded as a youthful offender? Neutral.

16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes. The genuine belief in sorcery.
    

Recap

13. The mitigating factors are:

• No 3 – lives not at risk;
• No 6 – de-facto provocation;
• No 7 – isolated incident;
• No 9 – co-operated with police;
• No 10 – bel kol;
• No 11 – no further trouble;
• No 12 – pleaded guilty;
• No 13 – remorse;
• No 14 – first-time offender;
• No 16 – genuine belief in sorcery.
  

14. Aggravating factors are:

• No 1 – damage of high value;
• No 2 – a man and his family were directly affected;
• No 4 – group raid;
• No 5 – planned arson;
• No 8 – did not give himself up.
  

15. The other factor (No 15) is neutral. After weighing all these factors (10 mitigating versus 5 aggravating), comparing this case with the other recent arson cases, particularly Rebon and Patore (this case is not as serious as them), a head sentence below the starting point is warranted. I therefore impose a head sentence of six years imprisonment.

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

16. 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, four months.

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 many of the arson cases I have dealt with 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 to suspend the rest of the sentence, subject to the following strict conditions:

(a) must within six months after the date of sentence pay K8,000.00 cash compensation to the victim OR build a new house for the victim and pay K4,000.00 cash compensation to the victim AND participate in a reconciliation ceremony supervised by the Village Court and witnessed by the Ward Councillor and a Probation Officer;
(b) must attend the first sittings of the National Court at Madang six months after the date of sentence, to demonstrate compliance with condition (a);
(c) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(d) must not leave Madang Province without the written approval of the National Court;
(e) 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;
(f) must attend his local Church every weekend for service and worship and submit to counselling;
(g) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;
(h) must not consume alcohol or drugs;
(i) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;
(j) must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;
(k) 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.

18. 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. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

19. David Kondave, having been convicted of the crime of arson, is sentenced as follows:

Length of sentence imposed	6 years
Pre-sentence period to be deducted	1 year, 4 months
Resultant length of sentence to be served	4 years, 8 months
Amount of sentence suspended	4 years, 8 months
Time to be served in custody	Nil – subject to compliance with conditions of suspended sentence

Sentenced accordingly.

_________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender