State v Kwelik [2011] PGNC 71; N4335 (17 June 2011)

N4335

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 600 OF 2009

STATE

V

KIETH KWELIK

Accused

Wewak: Ipang AJ
2011: 2, 9 & 17 June

CRIMINAL LAW – Practice and procedure – sentence on guilty pleas to a charge of arson – Criminal Code Act, Section 436 – offender acted alone – set fire and destroyed a semi-permanent building which housed residence and kitchen – in retaliation after victim assaulted offender's brother who sustained bodily injuries – sentence of seven (7) years.

CRIMINAL LAW – Sentence – arson – a semi-permanent building – with use of kerosene in retaliation of brother being assaulted by victim – not a first time offender – expressed remorse – 7 years part suspended sentence imposed – ss. 19 and 436 of Criminal Code Act.

CRIMINAL LAW – Sentence – need for appropriate sentencing guidelines for arson cases to be developed

Cases Cited

State v Ipu Samuel Yombu [1992] PNGLR 261
State v Pelly Vireru & Spelly Karwa CR No. 468 & 469 of 2002 (20/12/05)
State v Pradie Akoi & Steven Akoi CR No. 1431 of 2002 (N2584)
State v Andrew Yeskulu N2410 (24/04/03)
State v Patrick Michael & Leo Koligen CR No. 281 & 283 of 2004 (10/10/05)
State v Alfred Awesa CR 1587 of 2005 (06/04/05)
State v Rex Tami CR No. 1590 of 2005 (23/03/06)
State v Bonifas Bowa CR No. 1930 of 2005 (23/03/06)
State v Bernard Bambai CR No. 1931 of 2005 (23/03/06)
State v David Kondave CR No. 1450 of 2006
State v Kuru Bisok & Gahu Kuru CR Nos. 42 & 43 of 2007
State v Anton Towaksa & 2 Ors CR No. 354-356 of 2008

Counsel

Mr. F. Popeu, for the State

Mrs. A. Meten, for the Offender

DECISION ON SENTENCE

17 June, 2011

1. IPANG AJ: The offender Kieth Kwelik pleaded guilty to the charge of arson, an offence prescribed under Section 436(a) of the Criminal Code Act, Chapter 262. The indictment alleged that on the 21 December 2008 at Duningi, Nelikum No.1 village in Maprik District, East Sepik Province, he willfully and unlawfully set fire to a semi-permanent building serving as a dwelling house and a bush-material building serving as a kitchen both valued at K7,981.00. These are properties belonging to one Max Wukwemini.
   

Brief facts

2. The brief facts of this case are as follows: On the 21 December, 2008 at around 1.00pm, the accused's brother namely George Kwaminingi was involved in a fight with another person namely Rex Pasikila and sustained some bodily injuries. The offender saw his injured brother and went to look for the person who assaulted his brother.
   
3. The offender went to the premises of Max Wukwemini and called out for Rex Pasikila and Max Wukwemini to go out for a fight. Both Rex Pasikila and Max Wukwemini did not go out and seeing that no one responded, the offender got hold of a container of kerosene, poured it on to the building and set it on fire. The building was completely burnt to ashes.
   

Allocutus

4. In administering his allocutus, the offender expressed remorse for what he did. He said sorry. He said he is a first-time offender and asked for the court's mercy. He also said he will compensate the complainant at home.
   
5. On the 9 June, 2011, Mrs. Meten of Counsel for the offender requested for a Pre-sentence Report (PSR) for her client upon which an order from this Court was granted. The Pre Sentence Report compiled by Probation officer James Suart stated the following in regard to the offender:
   

"The offender is 37 years old and he is married with three (3) children. He is currently unemployed but supports his young family through casual laboring and gardening. The PSR states that the offender does various menial jobs around Maprik Town and as a casual electrician with Paul Dingu. The report states he earns not more than K100 per fortnight.

The offender is literate. He did grades 1-6 at Maprik Administration Primary School from 1982-1987. After grade 10, the offender did not continue his education as his sister passed away. The offender is the second born of five (5) children, one female and four males. Offender's father Tobias Kwelik is 65 years old and the mother Docas Kwelik is 62 years old. Both are from Duningi Nelikum No.1 village, Maprik/Wora LLG. The offender's father works as a Manager for the Community Learning Development Centre. The offender's mother is a retrenched Nursing Officer with the National Department of Health.

The PSR revealed that the offence was committed as a result of continuous bad disputes between the complainant's family and the offender's family. It is stated that the land dispute has been on going for the last 20 years and it has not been resolved. So, the grievous bodily harm caused to George Kwaminingi only added more fuel to the unsolved land dispute."

6. I will re-visit the PSR at the later part of the judgment when I do a comparison of the aggravating and the mitigating factors.
   

The Law

7. The offender has been charged under section 436(a) of the Criminal Code Act, chapter 262. This provision provides and I quote;
   

"A person who willfully 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."

Issue

8. What would then be an appropriate sentence for the offender?
   

Comparing Mitigating and Aggravating Factors

9. Mrs. Meten of Counsel for the offender submitted the following mitigating factors in favour of the offender;
   
   • (a) He is a first time offender;
     
   • (b) He acted alone;
     
   • (c) The offence committed was not planned;
     
   • (d) He has pleaded guilty, saved Courts' time and State expense of conducting trial;
     
   • (e) He has expressed remorse;
     
   • (f) He has made early admission when first arrested and detained;
     
   • (g) He has co-operated with the police;
     
   • (h) He does not have any prior convictions; and
     
   • (i) There was element of de-facto provocation in that the victim and his relatives had fought and gave injury to the offender's brother.
     
10. Mrs. Meten submitted that the maximum penalty under section 436 of the Criminal Code Act is imprisonment for life however; she said this Court has discretion under section 19 of the Criminal Code Act. She further stated that the maximum penalty is normally reserved for the worst types of cases. She said that this case is not the worst type of arson case. Therefore, she submitted that this court consider imposing a term of years.
    
11. Defence counsel referred this court to the cases of State v Prodie Akoi & Steven Akoi N2584 (CR No. 1431 of 2002). In that case His Honour Kandakasi, J imposed a head sentence of 10 years and partially suspended 5 years. The case of State v Karu Bisok & Gahu Kuru CR Nos 42 & 43 of 2007, where Cannings, J imposed six (6) years and four (4) years respectively. Again in State v David Kondave CR No. 1450 of 2006, Cannings, J imposed 10 years as head sentence and partially imposed six (6) years.
    
12. In State v Prodie Akoi & Steven Akoi case (supra) Kandakasi, J referred to the case of State v Ipu Samuel Yombu [1992] PNGLR 261 which was also cited to this Court by the state prosecutor. The case of Ipu Samuel Yombu (supra) do differ to certain extent to the present case in that in the Ipu Samuel Yomb's case, there were people in the house and there was deliberate locking of the door and setting the house alight. Whereas in the present case, there were no people inside the house when it was set on fire. I do agree with state prosecutor in this regard that there was no deliberate, recklessness in putting lives of people at risk.
    
13. In Ipu Samuel Yomb's case (supra) as stated by Kandakasi, J in Akoi's case (supra) there were some guidelines on different kind of categories a arson case may fall under;
    

CATEGORY	TYPES OF HOUSES
1	A dwelling house with people inside;
2	A dwelling house without occupants;
3	Public Institutions such as schools, hospitals or offices with occupants inside;
4	Public Institutions such as schools, hospitals or offices without occupants inside; and
5	A house wind or a garden house or rundown and deteriorated or incomplete structure.

14. This table shows the kind of category a case of arson would normally fall under and the value that would be attached to each of the houses or structures coupled with other factors like whether the offence was pre-meditated or not, and of substances like petrol, kerosene etc... offender having prior convictions or other mitigating factors on the offender be taken in to consideration also. Whether, it is a guilty plea or not guilty in which trial was conducted.
    
15. On straight forward guilty pleas, what types of sentences have been imposed? It is appropriate that I adopt various sentences applied by Cannings, J in Table 1 – National Court Sentences for Arson 2005-2007, as stated in State v Kuru Bisok & Gahu Kuru CR Nos 42 & 43 of 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 demanding compensation from victim-went with a mob-offenders ordered others to burn down victim's bush material house.	3 years
2	State v Pelly Vireru & Spelly Kaiwa CR 468 & 469/02 (20/12/05)	Guilty plea – dispute between one of the offenders & brother of a young female - brother damages windscreen of a bus belonging to one of the offenders – offender comes back with co-accused and a fight ensued. A dwelling house valued at K30,000 was burnt down.	5 years
3	State v Bernard Bambai CR 1931/2005 (23/03/05)	Guilty plea – a husband/wife argument (offender & 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.	3 years
4	State v Rex Hekawi Tami CR 1590/2005 23/03/06	Guilty pleas – prisoner suspected victim 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 that time.	6 years
5	State v Bonifas Bowa CR 1930/2005 23/03/06	Guilty plea – alleged infidelity of wife and victim – prisoner went with angry mob – dwelling house was burnt down and properties looted – also convicted of stealing	5 years
6	State v Alfred Awesa CR 1587/2005 06/04/2005	Guilty plea – victim had smashed a beer bottle on offender's head – offender went to victim's house armed with bush knife – chased everyone and burned the house.	years

What would be the appropriate head sentence?

16. There are of course number of factors that I have to take in to consideration coupled with the relevant cases precedents in order to come up with appropriate head sentence. However, with respect to case precedents as it is evident with cases referred to me by the counsels, it seems to me that there is a need to develop an appropriate Sentencing guidelines for arson cases. I acknowledge the proposed guidelines by his Honour Kandakasi, J in State -v- Prodie Akoi & Steven Akoi (supra). I have mentioned some factors in paragraph 14 of this judgment and there should also be guidelines like; the value attached to the dwelling house, the higher the value of the house coupled with more number of people using the house the greater the penalty should be imposed. If it is a public institution like school, hospital, Court house a sentence almost to the maximum as the head sentence should be a good starting point. As to those public institutions like schools etc, which will service greater number of people now and in the future, greater or stiffer penalty should be imposed.
    

Recap of mitigating and aggravating factors.

NO.	FACTORS
	MITIGATING	AGGRAVATING
1	He acted alone	Not a first-time offender – previously convicted for possession of dangerous drug – two (2) years probation – Maprik District Court (26/6/98 – 25/6/00)
2	Offence committed was not planned	Offender was under the influence of alcoholic drinks when he committed the offence.
3	Pleaded guilty – saved Court's time and State's cost of conducting a trial	Destroyed valuable properties (worth K7,981.00)
4	Expressed remorse	With pre-meditation but with an highly flammable substance – kerosene
5	Co-operated well with police.
6	Element of de-factor provocation – victim and relatives assaulted offender's brother – sustained broken right wrist and swollen face.
7.	Lives were not at risk.

17. The Pre Sentence Report (PSR) presented indicated that the offender is a person with short-temper as he gets angry very quickly and often resorts to using his fist and other objects within his reach. All this happens when the offender is under influence of alcoholic drinks. When he is sober, this does not happen. It was a general view from some members of the offender's community that he does not get well with his family.
    
18. The State Prosecutor has cited an unnumbered case of State v Anton Towaksa, John Towaksa & Carl Mathew CR No. 353-356 of 2008. In that case, the three offenders were convicted of burning down a permanent dwelling house, a bush material kitchen and a dwelling house/canteen. Each of the offenders were sentenced to 10 years by Cannings, J. From the 10 years, 7 years was suspended and they were ordered to serve 3 years IHL less time spent in pre-trial custody.
    
19. In this present case before me state prosecutor submitted that this court should consider a sentence in the range of 8-10 years as a starting point or the head sentence. Thereafter, depending on the circumstance, the sentence can be adjusted upwards or downwards. Prosecutor further submitted that the Court should seriously consider the flight of the victim and impose a penalty that would serve as deterrent to the offender and also be of benefit to the victim.
    
20. Mrs. Meten of counsel for the offender submitted that this Court consider the head sentence of 6 years as the mitigating factors in this case outweigh the aggravating factors.
    
21. Having heard submissions from the state prosecutor and the defence counsel, I will have to come up with an appropriate sentence be fitting the offender under the given circumstances. In doing so, I take seriously the comments raised by Kandakasi, J in Akoi's case (supra) where His Honour stated;
    

"The offence of arson is a common occurrence in the two Sepik Provinces and Highlands Provinces. A most recent example of this happening is the burning down of the Wewak District court House. It is a very serious offence because it destroys within a matter of minutes, months if not years efforts put in to bringing in to existence of houses and other structures and their contents. This has a very bad impact on the progress of our people and therefore, our nation because; it raises fears rather than security in the fruits of the hard work of the people."

22. Kandakasi, J in Akoi's case suggested that for a case of arson falling in the first, second, third and fourth categories without any aggravating factor should start with a minimum head sentence of 10 years. His Honour also said for a case of arson falling in the last category, the sentence should start at 5 years where there are no factors in aggravation.
    
23. If there are factors in aggravation, the sentence may go beyond the 5 years. His Honour also said that in exceptional cases where there are very good mitigating factors with the support of a Pre-Sentence Report (PSR), a sentence below 5 years may be imposed.
    
24. In State v Andrew Yeskulu N2410 (Unreported Judgment dated 24/4/03) Kandakasi, J considered and imposed a wholly suspended sentence of 7 years with some strict conditions. The conditions included an order for the prisoner to rebuild the building that he burnt down and replace its contents. Another condition was for the offender to render free but supervised community services at a specified location and time. This was based upon offender's plea of guilty, being first time offender and was genuinely remorseful. The Court was aware at the time of sentencing that the offender had already taken steps to rebuild the buildings and complete it with the victim's approval.
    

The present Kieth Kwelik's case

25. The offender Kieth Kwelik has committed this offence by acting alone. He has used a flammable substance – kerosene to successfully execute the act of arson. At that time the offender was under the influence of alcohol. The offender has burnt down to ashes a semi-permanent building and a bush material house serving as a kitchen. It is a mixture of both a semi-permanent and a bush material house. These properties were valued at around K7, 981.00.
    
26. In the PSR it was stated that you're married and your wife and children depended on you. In the report it is noted that you don't earn much when you do casual jobs as you earn less than K100. I note that this will place you under enormous pressure to fully or adequately compensate the victim. This burden will then be off-setted to your parents and relatives.
    
27. Because the PSR has been done and presented to court does not guarantee automatic transit to probation. You have been previously convicted by the Maprik District Court on the 25 June, 1998 and you were placed on two (2) years of probation. The PSR stated that because you were previously placed on probation, now that you have re-offended, the possibility of you to respond positively and favourably to probation supervision is now in doubt.
    
28. I do also take in to account that you have co-operated with the police. You have admitted the offence thus saving the court's time and State's cost for running a trial. You committed this offence after seeing your brother George Kuamininge sustained a broken right wrist and swollen face.
    
29. Weighing both the factors as stated above, for and against you, I am of the view that a part custodial and part suspended sentence is appropriate for you. I consider a head sentence of 7 years is appropriate. Of the 7 years, I order you to serve 2 years in hard labour at Boram Correction Services less the pre-trial period you were remanded in custody which shall be confirmed by Maprik Police with your input within 3 days from today. For the balance of 5 years from the head sentence of 7 years, I order that 5 years be suspended with the following strict conditions;
    
    1. You shall immediately enter in to your own recognition to keep peace for the currency of your suspended sentence;
       
    2. You shall report to CBC Maprik for supervision;
       
    3. You shall render eight (8) hours of free community services to all churches and Maprik District Hospital starting with your own church, Maprik Catholic Church for one week each from every Tuesdays and Thursdays. You will be on rotation for each week.
       
    4. Within 12 months of serving your suspended sentence you shall compensate the victim in the following;
       
       • (a) compensate the complainant in the sum of K2,500;
         
       • (b) compensate the complainant with one traditional ring money valued at K1,000 to K1,500; plus
         
       • (c) a matured pig worth K500;
         
       • (d) one stick yam;
         
       • (e) garden food; and
         
       • (f) store goods.
         
5. The offender is restrained from taking any form of alcoholic drinks or beverages, and illicit spirits, during the duration of his probation.
   
6. The offender is also restrained from assaulting or insulting the complainant or any member of the community during his probation.
   
7. The Probation Service shall furnish a quarterly report to this Court with the first due by end of the first three months from the date when your suspended sentence commences.
   
8. If in the event, the offender breaches any of these terms, he will no doubt serve the balance of term of suspended sentence as at the time of the breach.
   
9. The offender is at liberty to apply for a review or variation of the terms as stipulated provided he substantially complied with them.
   
10. Any member of the complainant's family, the complainant, members of the community or offender's family are at liberty to report to this Court if the offender fails to comply with terms of this order.
    

____________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused