State v Bisok [2007] PGNC 242; N5483 (11 October 2007)

N5483

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NOS 42 & 43 OF 2007

THE STATE

V

KURU BISOK & GAHU KURU

Madang: Cannings J
2007: 8, 11 October

CRIMINAL LAW – sentence – arson – Criminal Code, Section 436 – offenders acted with others – set fire to and destroyed bush material house and contents – motivated by belief that homeowner built his house unlawfully on their land – guilty plea – sentences of six years and four years.

The offenders, a father and son, pleaded guilty to joining with others in burning down the bush material house of a person whom they believed had built his house on their land.

Held:

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

(2) The father had a greater level of involvement in the arson as he was the ringleader and took the law into his own hands. He was sentenced to six years imprisonment. The son had a lesser degree of involvement and was sentenced to four years imprisonment.

(3) The pre-sentence periods in custody were deducted and all of the remaining period of each sentence was suspended on conditions including payment of compensation to the victim within four 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 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

This was a judgment on sentence for arson.

Counsel

M Ruari, for the State
W Akuani, for the offenders

11th October, 2007

1. CANNINGS J: This is a decision on sentence for a father (Kuru Bisok) and his son (Gahu Kuru) who pleaded guilty to one count of arson, arising from the following facts. They joined with others in burning down the bush material house of the victim, Kumei Namur, at Siholum, near Bilbil village, close to Madang town. The house was set alight at 10.00 am on 5 September 2006.

ANTECEDENTS

2. Neither of the offenders has any prior convictions.

ALLOCUTUS

3. 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.

Kuru: The house that we burned down is on my land. We tried to have the matter sorted out in the Village Court, which ordered Kumei not to build his house there but he disobeyed the order. The land is not in the main village at Bilbil. It is in the bush. It is my land.

Gahu: I know I did wrong. It is my first time in court. I say sorry for what I have done.

OTHER MATTERS OF FACT

4. As the offenders have pleaded guilty they 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). They made admissions in their police interviews. The father, Kuru, admitted to being the ringleader. He was motivated by the strong belief that the victim, Kumei Namur, was a problem person in their community who does not show respect for other people and who needed to be taught a lesson. No one was in the house and they removed all the belongings before burning it down.

PERSONAL PARTICULARS

5. Kuru is 56 years old and self-employed. His son Gahu is aged 24 and was educated at St Benedict's Technical School.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Akuani pointed out that lives were not endangered and that they removed the contents of the house before setting fire to the house. He argued for a two year sentence.

SUBMISSIONS BY THE STATE

7. Mr Ruari argued for a 10-year sentence, with some time 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 other sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offender?
• step 5: should the pre-sentence periods in custody be deducted?
• step 6: should all or part of each sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The offenders have 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?

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, 2005-2007

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 Awesa 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 OFFENDER?

12. The father, Kuru, was the ringleader. He had a greater level of involvement in the crime than his son, Gahu. Therefore it is appropriate to impose different sentences.

Kuru Bisok

13. 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 the bush in Madang. 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, it was a calculated action.

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 had disobeyed a Village Court order and was becoming a problem person.

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? No.

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? No.

14 Is this the first offence? Yes.

15 Can he be regarded as a youthful offender? No, he is a mature aged man and he led his son and others in committing a crime.

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

14. To recap, 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 11 – no further trouble;
• No 12 – pleaded guilty;
• No 14 – first-time offender.
  

15. 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;
• No 10 – no compensation or reconciliation;
• No 13 – no remorse;
• No 15 – mature aged man.
  

16. The other factor (No 16) is neutral. After weighing all these factors (7 mitigating versus 8 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.

Gahu Kuru

17. He had a lesser degree of involvement. He is the principal offender's son and was led astray by his father. He also expressed some remorse, whereas his father did not. I impose a sentence of four years imprisonment.

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

18. Yes. 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, which in this case is one day each.

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

19. In most arson cases, I have suspended the sentences on condition that the offenders make restitution and/or pay compensation to the victim 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 sentence subject to various conditions including payment of a total of K2,000.00 compensation to the victim within four months. The amount of compensation is meant to reflect not only the economic value of the house that has been destroyed but also the fact that it is somebody's home. A victim must be compensated for the trauma, distress and inconvenience they suffer when their home is burned down. I will suspend the rest of each sentence on the following conditions:

(a) must within four months after the date of sentence: pay a total of K2,000.00 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 four 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 offenders breach any one or more of the above conditions, they shall be brought before the National Court to show cause why they should not be detained in custody to serve the rest of the sentences.

20. 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 their sentences. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

21. Kuru Bisok, 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 day
Resultant length of sentence to be served	5 years, 11 months, 3 weeks, 6 days
Amount of sentence suspended	5 years, 11 months, 3 weeks, 6 days
Time to be served in custody	Nil – subject to compliance with conditions of suspended sentence

22. Gahu Kuru, having been convicted of the crime of arson, is sentenced as follows:

Length of sentence imposed	4 years
Pre-sentence period to be deducted	1 day
Resultant length of sentence to be served	3 years, 11 months, 3 weeks, 6 days
Amount of sentence suspended	3 years, 11 months, 3 weeks, 6 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