State v Wakis [2008] PGNC 111; N3426 (24 July 2008)

N3426

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 74 0F 2008

THE STATE

V

JAMES WAKIS

Kimbe: Cannings J
2008: 11, 24 July

SENTENCE

CRIMINAL LAW – sentence – arson – guilty plea – two semi-permanent buildings burned down – family dispute – sentence of 6 years.

A man pleaded guilty to arson. He was having a long-running dispute with his brother over the oil palm block which they shared and on which they had separate houses. He joined with two others and entered his brother’s house, assaulted the occupants and forced them to flee. Then he set fire to the dwelling house and an adjacent haus boi, destroying them and the properties in them.

Held:

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

(2) Mitigating factors are: de-facto provocation; isolated incident; co-operated with police; no further trouble; pleaded guilty; remorse; first-time offender; victim’s wish that the offender not be imprisoned; favourable pre-sentence report.

(3) Aggravating factors are: planned offence; occupants assaulted; damage of high value; a man and his family were directly affected; did not give himself up; not a youthful offender.

(4) 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 K6,000.00 compensation within six months.

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 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
The State v Mondo Baundo CR 1320/2006, 24.08.06

Abbreviations

The following abbreviations appear in the judgment:
CR – Criminal
J – Justice
K – Kina
N – National Court judgment
No – number
SCRA – Supreme Court Criminal Appeal
v – versus
WNB – West New Britain

SENTENCE

This was a judgment on sentence for arson.

Counsel

F Popeu, for the State
T Gene, for the offender

24 July, 2008

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of arson arising from the following facts.

2. On 3 November 2007 the offender, James Wakis, was at Galai 1 oil palm settlement, near Kimbe, in the company of two or three other people. He went to a house on block No 1550, occupied by his brother, Kipa Gone. It was 8.30 pm and the occupants of the house were asleep. The offender and his accomplices entered the house, assaulted the occupants and forced them to flee. He then poured kerosene around the house and set it alight. The result was that two buildings were burned down:

• a semi-permanent building serving as a dwelling house and kitchen; and
• a semi-permanent dwelling serving as a haus boi.
  

3. Personal property within those buildings was also destroyed. The total value of the two buildings and the property within them was K27,660.00.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. 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. He said:

I had a dispute with my older brother. We are always in dispute. He provoked me into doing this. I apologise before the court for what I have done. I have a wife and an old mother to look after. I have an oil palm block and I need to be there so I can look after my family.

OTHER MATTERS OF FACT

6. 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). I take into account that: he was provoked into doing what he did; and he cooperated with the police and made admissions in his police interview.

PRE-SENTENCE REPORT

7. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is favourable to the offender. He is of East Sepik parentage but has lived in WNB all his life. He is aged about 39, married with five children. His mother lives with him in the family home. He is educated to grade 6 and has had only limited formal employment. The oil palm block provides him with his primary source of income. He is in good health and he wants to stay living on the block.

8. He is well regarded in the local community. The victim, his brother, does not want him to go to jail. He would prefer to receive compensation of about K6,000.00. The offender is not regarded as a threat to the community and is recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Gene highlighted the guilty plea, that the offender has no criminal record and he has a good pre-sentence report. Five years, fully suspended, subject to payment of K6,000.00 compensation, would be an appropriate sentence, he submitted.

SUBMISSIONS BY THE STATE

10. Mr Popeu submitted that though there had been some reconciliation, the offence was serious and warranted a sentence of five to ten years. The sentence could be suspended subject to payment of compensation, he submitted.

DECISION MAKING PROCESS

11. 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?

12. 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?

13. As I have said in recent arson cases in this Province, 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?

14. 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.

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
9	The State v Mondo Baundo CR 1320/2006, 24.08.06	Trial – offender became angered by a report that his pig had been speared, confronted the people allegedly responsible and, still angry, burned down their house	6 years

STEP 4: WHAT IS THE HEAD SENTENCE?

15. The mitigating factors are:

• lives not at risk;
• de-facto provocation;
• isolated incident;
• co-operated with police;
• no further trouble;
• pleaded guilty;
• remorse;
• first-time offender;
• has reconciled with the victim, who does not want him put in jail;
• favourable pre-sentence report.
  

16. Aggravating factors are:

• offence was planned;
• occupants of house were assaulted;
• joined with others in raiding the house;
• damage of high value;
• a man and his family were directly affected;
• did not give himself up;
• not a youthful offender.
  

17. In weighing all these factors I place great weight on the guilty plea, the full co-operation the offender gave the police and the reconciliation with his brother. After comparing this case to the other arson cases I have dealt with, I impose a head sentence of six years imprisonment.

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

18. 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 I estimate to be three months.

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

19. 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.

20. I have decided to suspend the sentence even though it is a serious case of arson, in view of the favourable pre-sentence report. As to conditions to be set, Mr Gene and Mr Popeu submitted that the figure should be K6,000.00 and I think that that is a reasonable figure. Even though it is well below the value of the buildings and property lost, it is the amount that has been included in the pre-sentence report after consultation with the victim.

21. I will suspend the entire sentence on the following conditions:

(a) must within three months after the date of sentence pay K6,000.00 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 three months after the date of sentence, to demonstrate compliance with condition (a);
(c) must reside at Galai 1 and nowhere else except with the written approval of the National Court;
(d) must not leave WNB Province without the written approval of the National Court;
(e) must perform at least six hours unpaid community work each week;
(f) must attend his local church every weekend for service and worship and submit to counselling;
(g) must report to the senior Probation Officer at Kimbe 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 Kimbe 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.

SENTENCE

23. James Wakis, having been convicted of the crime of arson, is sentenced as follows:

Length of sentence imposed	6 years
Pre-sentence period to be deducted	3 months
Resultant length of sentence to be served	5 years, 9 months
Amount of sentence suspended	5 years, 9 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