State v Kauke [2013] PGNC 298; N5131 (4 April 2013)

N5131

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 640 0F 2012

THE STATE

V

FRANCIS KAWAI KAUKE

Madang: Cannings J
2012: 14 November, 12 December,
2013: 4 March, 4 April

CRIMINAL LAW – sentence – arson – Criminal Code, Section 436(f) – offender acted alone – set fire to and destroyed two 15-seater buses – motivated by anger towards owner of buses for having affair with offender's wife – guilty plea – appropriate length of head sentence – whether all or part of sentence should be suspended

The offender entered his neighbour's yard without permission late at night, drunk and armed with a spade, shouting obscenities about his neighbour, the victim, (who was not present) and threatening those present with violence if they attempted to stop him from setting fire to the victim's two 15-seater buses, which he proceeded to do. The offender was angry with the victim for having an affair with the offender's wife. The buses were licensed public motor vehicles with a value of K45,000.00 each, used to generate income for the victim and his family. The offender pleaded guilty to a charge of arson. This is the judgment on sentence.

Held:

(1) The maximum penalty is life imprisonment and it is useful to apply a starting point of ten years imprisonment.

(2) Mitigating factors are: lives not put at risk; there was a clear and identifiable reason for doing what he did: a genuine belief that the victim had committed adultery with the offender's wife in the offender's home; it was an isolated incident; the offender acted alone; surrendered to police; pleaded guilty; remorse; first-time offender.

(3) Aggravating factors are: it was a violent and frightening incident, especially for one of the victim's children; the incident disturbed the peace in the local community; the act of arson was accompanied by threats of personal violence; the offender took the law into his own hands; the offender caused damage of substantial value (K90,000.00); the deliberate object of the attack was to destroy the victim's income-earning assets; the offender caused great distress and suffering to the victim and his family.

(4) A sentence of five years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended as there was insufficient evidence that the offender had the means available to make compensation a realistic option and the victim was no longer interested in compensation.

Cases cited

The following cases are cited in the judgment:

The State v Kuru Bisok & Gahu Kuru CR 42 + 43/2007, 11.10.07
Saperus Yalibakut v The State (2006) SC890
The State v Alfred Awesa CR 1587/2005, 06.04.06
The State v Anton Towakra, John Towakra & Carl Mathew (2009) N3845
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 David Kondave CR 1450/2006, 11.10.07
The State v Jacob Patore CR 32/2005, 27.03.07
The State v Kuru Bisok & Gahu Kuru CR 42 + 43/2007, 11.10.07
The State v Mondo Baundo (2007) N5045
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 Wai Kibob & Galau Hagui (2008) N3944

SENTENCE

This is a judgment on sentence for arson.

Counsel

M Pil, for the State
E Valakvi, for the offender

4th April, 2013

1. CANNINGS J: Francis Kawai Kauke pleaded guilty and he has been convicted of one count of arson under Section 436(f) of the Criminal Code. He is now before the court to be sentenced. The incident occurred at 11.00 pm on Monday 7 May 2012 at Malabor Street, Newtown, Madang town, where the offender lives. He unlawfully entered the yard of his neighbour, Lawrence Bandi. The offender was heavily intoxicated and armed with a spade which he used to smash the front windscreens of two 15-seater buses, owned by Mr Bandi, as well as the fibro walls of Mr Bandi's house. Inside the house were Mr Bandi's 11-year-old daughter and other relatives who were traumatised but not directly physically harmed by the offender.

2. The offender then lit a piece of cardboard which he used to set fire to the two buses. As a consequence the buses, worth K45,000.00 each, were gutted by fire and destroyed. They were licensed public motor vehicles, used by Mr Bandi as the primary source of his family's income.

3. While he was doing all that the offender shouted obscenities about Mr Bandi, who was not present, and he threatened physical violence and hurled abuse against neighbours and onlookers who were attracted to the scene by the commotion if they tried to put out the fires. The police and fire brigade arrived on the scene later, by which time the buses were destroyed.

ANTECEDENTS

4. The offender has no prior conviction.

ALLOCUTUS

5. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment:

I apologise to the court for what I have done. I took the law into my own hands and I know that is wrong. I have until recently lived a happy life with my wife and children in Madang. I have worked as a ship's captain for many years and I have enjoyed my career. I have never faced a situation like the one I faced on 1 May 2012, which was a very sad day for me, when I returned from a business trip to Port Moresby to be told that my wife had entered an affair with Lawrence Bandi. It was a sexual relationship and things were happening in my own home while I was away. This was a shocking situation, which I found very difficult to deal with. I was in such a disturbed state of mind that I wanted Lawrence to feel the same amount of pain that I felt. I deliberately intended to do something that would hurt Lawrence. I did try to talk to him from 1 to 6 May 2012 but he refused to talk to me. We had lived as good neighbours and friends for many years before this. After I was arrested and placed in the cell Lawrence visited me and I again tried to sort out the problem with him but it has been difficult to do so. My marriage has been ruined by the adultery that occurred.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty he will be given the benefit of reasonable 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 (2006) SC890). He had a genuine belief that his wife had committed adultery with the victim. He felt angry and betrayed. He committed the offence when he was drunk and out of control. He made some attempt to talk to the victim before committing the offence. These facts do not excuse what he did but as he pleaded guilty they will be taken into account as mitigating factors: there was an identifiable reason for the offender's actions and an element of de facto provocation. It will also be taken into account that the offender surrendered to the police when they arrived on the scene.

PRE-SENTENCE REPORT

7. A report on the offender was prepared by the Community Based Corrections Service. He is of mixed East Sepik (Wewak) and Madang (Bogia) parentage. He is 46 years old and has one wife, and they have four children. He has two brothers and one sister and they get on reasonably well, however family relationships have been strained due to his involvement in this offence. He has a grade 10 school education but then matriculated through the College of Distance Education and gained entry to the PNG Maritime College that resulted in his gaining qualifications as a ship's captain. He has for some years been self-employed, his major source of income being a small business in the shipping industry based in Port Moresby which he has been endeavouring to move to Madang. His health is sound. His financial position is not presently strong but he is confident that he can compensate the victim if given sufficient time. A character reference was provided by Pastor Francis Wawur of PNG Faith Ministries Madang, attesting that the offender is a well respected person in the local community and honest, reliable, decisive and of sober habits. Pastor Wawur states that he is counselling the offender and his wife and encouraging them to place trust in God and continue with their life together.

8. As the initial report did not contain the views of the victim the court requested a supplementary report, which shows clearly the victim's attitude: he is disgusted by the offender's actions, which have had a severe and debilitating effect on him and his family as the two buses that the offender destroyed represented his only source of income. He was prepared to negotiate with the offender before the matter came to court and he was willing to accept some assistance from the offender so that he could restart his PMV business. But the offender only gave him false hope and did not even apologise for what he did. He does not believe that the offender can compensate him. He says that the offender deserves to be imprisoned.

SUBMISSIONS BY DEFENCE COUNSEL

9. Ms Valakvi highlighted the guilty plea, the absence of prior convictions, the presence of remorse, the fact that it was a one-off incident in which there was a high degree of de facto provocation and the willingness to pay substantial compensation. The problems that exist between the offender and the victim could be largely resolved if the victim was willing to reconcile. The offender is confident that he can raise compensation of up to K100,000.00 if given time; he asks for at least six months. An appropriate sentence would be five years, all of which should be suspended on conditions including payment of compensation.

SUBMISSIONS BY THE STATE

10. Mr Pil submitted that the case has many aggravating features that outweigh the mitigating factors outlined by the defence counsel. The willingness and ability to pay compensation are not genuine as no compensation at all has been paid. The offender has not apologised in any proper way to the victim and his remorse should not be regarded as genuine. A six-year sentence is warranted, none of which should be suspended.

DECISION MAKING PROCESS

11. To determine the appropriate penalty the following decision making process will be used:

• 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(f) of the Criminal Code, which creates the offence of 'wilfully and unlawfully setting fire to a motor vehicle'. Section 436 provides that the maximum penalty for such an offence 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. I have in many arson cases that have centred on burning down a dwelling house used a starting point of ten years imprisonment. I will take the same approach here. It is a very serious case of arson when an offender targets a person's income-earning assets.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED?

14. Before I fix a sentence I will consider sentences handed down in other arson cases in recent times. A comparison of the circumstances of these cases with those of the present case is a useful guide to the appropriate sentence here.

NATIONAL COURT SENTENCES FOR ARSON, 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 (2007) N5045	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
10	The State v David Kondave CR 1450/2006, 11.10.07	Guilty plea – offender burned down the house of a person in his village he suspected of killing his brother through sorcery – semi-permanent house – properties inside house also destroyed – total damage bill K8,000.00.	6 years
11	The State v Kuru Bisok & Gahu Kuru CR 42 + 43/2007, 11.10.07	Guilty pleas – offenders, a father and son, joined with others in burning down the bush material house of a person whom they believed had built his house on their land.	6 years, 4 years
12	The State v Wai Kibob & Galau Hagui (2008) N3944	Guilty pleas – two young men acted in concert to burn down a dwelling house and kitchen house belonging to a person they suspected of making their sister sick through sorcery – then one of them burned down two other dwelling houses and another kitchen house, for the same reason.	6 years 8 years
13	The State v Anton Towakra, John Towakra & Carl Mathew (2009) N3845	Trial –three offenders convicted of two counts of arson committed as a reprisal following the death of their relative: (1) burning down their wantok's permanent dwelling house and bush material kitchen house; (2) burning down the first victim's brother's permanent dwelling house-canteen.	10 years

15. It will be observed that the heaviest sentences (10 years each) were in cases that were taken to trial: the offenders had pleaded not guilty. Guilty pleas have resulted in sentences in the range of 3 to 8 years, depending on the circumstances of each case.

STEP 4: WHAT IS THE HEAD SENTENCE?

16. The mitigating factors are:

• lives not put at risk;
• there was a clear and identifiable reason for doing what he did: a genuine belief that the victim had committed adultery with the offender's wife in the offender's home;
• it was an isolated incident;
• the offender acted alone;
• he surrendered to the police;
• he pleaded guilty;
• he expressed remorse;
• he is a first first-time offender.
  

17. Aggravating factors are:

• it was a violent and frightening incident, especially for one of the victim's children;
• the incident disturbed the peace in the local community;
• the act of arson was accompanied by threats of personal violence;
• the offender took the law into his own hands;
• the offender caused damage of substantial value (K90,000.00);
• the deliberate object of the attack was to destroy the victim's income-earning assets;
• the offender caused great distress and suffering to the victim and his family.
  

18. This is a very serious case that would without the guilty plea warrant a sentence similar to the three cases referred to earlier in which the offenders took their case to trial and were sentenced to 10 years imprisonment each. Everyone in the community must learn that payback crimes of this nature will not be tolerated. We have laws in place to deal with the sort of problems that led to this crime. The duty of everyone is to allow those laws to take their course. You are not allowed to take the law into your own hands. After comparing this case with the other arson cases I have dealt with, the appropriate sentence is five years imprisonment.

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

19. 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 two weeks, four days.

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

20. This is a case that had potential for a suspended sentence. Arson cases are invariably crimes of passion. The offence is committed for a clear and identifiable reason: anger, frustration, revenge being the most common. When tensions cool and the offenders realise the seriousness of what they have done they often express remorse and attempt to solve the problem by reconciling with the victim. They apologise, offer to pay compensation and repair the relationship with the victim. If the victim is prepared to be compensated and is willing to accept an apology and forgive the offender, a prison sentence is unnecessary; a fully suspended sentence subject to strict conditions being a much better option. Unfortunately for the offender in the present case the victim does not want to reconcile with him. He has not forgiven him for what he did. He sees his talk about compensation being a hollow and worthless promise. And who can blame him for taking that attitude? He has not received any compensation at all. He has lost the means of earning a living and he is rightly very upset and angry about what the offender did. So that makes it difficult for the court to suspend the sentence. The difficulty might have been overcome if the offender could convince the court that the prospect of him being able to raise up to K100,000.00 in the next six months was realistic. But there is no evidence of that. Ms Valakvi said that her client was confident that he could raise that sort of money. The court does not share that confidence. There is simply no evidence to warrant it. The combined effect of those two factors – the attitude of the victim and there being no realistic prospect of the offender being able to pay compensation of an appropriate amount – is that this is not an appropriate case for a non-custodial sentence. The offender must do the time in custody that fits the gravity of his crime. None of the sentence is suspended.

SENTENCE

21. Francis Kawai Kauke, having been convicted of one count of arson contrary to Section 436(f) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	5 years
Pre-sentence period to be deducted	2 weeks, 4 days
Resultant length of sentence to be served	4 years, 11 months, 1 week, 3 days
Amount of sentence suspended	Nil
Time to be served in custody	4 years, 11 months, 1 week, 3 days

Sentenced accordingly.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the offender