State v Kamelus [2017] PGNC 103; N6743 (8 May 2017)

N6743

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 1066 OF 2016

STATE

V

JERRY KAMELUS

Buka: Bona J.
2017: 26^th April, 3^rd, 4^th, 8^th May

CRIMINAL LAW – Arson – Plea of Guilty – Set Fire to Kitchen House – De Facto Provocation – Offence Occurred in the Village – No Occupants inside House – House Burnt to Ashes – No Lives Lost - Section 436 (a) Criminal Code Act Chapter 262.

Cases Cited:

Kongian v. State (2007) PGSC 45.
State v. Baundo [2007] PNGNC 202; N5045.
SCR.No.1 of 1984; Re Maximum Penalty [1984] PNGSC 32.
State v. Wakis [2008] N3426.
State v. Sengi [2015] PGNC 182; N6087
Polau v. State [2003] PGSC 6.
State v. Yeskulu (2003) N2410.

Counsel:

C. Sopa ,for the State
C. Momoi, for the Accused

SENTENCE
8^th May, 2017

1. BONA J. The prisoner pleaded guilty to one count of Arson on an Indictment under Section 436 (a) of the Criminal Code Act Chapter 262.
   
2. The facts of the case are that in the early hours of the 28^th February, 2016 at about 5.00 am in the morning, the accused and two others went looking for the victim. They found him sleeping in the kitchen and attacked him but he managed to avoid them and ran away. They chased him but he got away from them so they returned to the kitchen where he was sleeping earlier and burnt it to the ground. When the owner of the kitchen came back later he found that his kitchen had been burnt to ashes. The matter was reported to the Police and the prisoner was arrested and charged.
   
3. On allocatus the prisoner said he is sorry to the Court for what he did. He apologised to Mayleen and Fred the husband and wife who own the haus kuk for what he did to them. He asks the Court to put him on Probation or on a Good Behaviour Bond so he can go back to the village and rebuild their haus kuk. He says he will also return what he got from the house. He says they can maintain a good relationship as before as the wife of the owner of the haus kuk is his niece. He apologised to the Heavenly Father and begs his forgiveness for what he did.
   
4. The personal particulars of the prisoner are that he is 45 years old and comes from Hahalis village in the Halia constituency of Buka Island. He is married with six children and was educated to grade 6 at Hahalis Primary School. He used to work as a PMV crew but is no longer doing that because of the charge he is facing now.
   
5. He is a member of the Catholic Church and attends Church services at home.
   
6. The offence of Arson comes under Section 436 of the Criminal Code Act and is as follows:
   

436. ARSON

A person who wilfully and unlawfully sets fire to –

(a) A building or structure, whether completed or not; or
(b) .........
(c) .........
(d) ........
(e) ........
(f) ........

Is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

7. Therefor the Courts and the law consider this to be a very serious offence. However it is also settled law that the maximum sentence is always reserved for the worst type so the discretion under Section 19 of the Criminal Code can be exercised by the Courts according to the facts of each particular case. See: SCR No.1 of 1984; Re Maximum Penalty [1984] PNGSC 12.
   
8. A pre-sentence report was tendered and it seems very favourable to the prisoner. The report confirms that the prisoner is from Natohia hamlet in Hahalis village on Buka Island. He is 45 years old and married with six children. His eldest child is now a 24 year old woman and his youngest is five years old. All are at school except the 24 year old daughter who is the subject of this case.
   
9. He completed grade 6 at Hahalis Primary School in 1982 but did not go on with his education. He has no formal employment but was a crew member on a PMV for one year. He seems to be highly regarded in the village and is a valuable member in the community. He was also a member of the law and order committee in the community. He survives as a subsistence farmer with his wife and family.
   
10. The prisoner and his family are willing to reconcile with the victim and his family and restore family relationships. After all they are related by marriage as the victim is married to the prisoner’s niece. He accepts responsibility for what he has done and is willing to rebuild a new kitchen to replace the one he burnt down. He is not regarded as a threat to the victim and his family and is recommended for probation.
    
11. On mitigation it was submitted by his counsel that he has pleaded guilty and therefore has saved the Court time and expense. This is also his first offence and he has no prior convictions. He has co-operated well with the Police as is evident with his admissions in his Record of Interview. There were no lives put at risk as there was nobody present in the haus kuk when it was set on fire.
    
12. There was also the presence of de facto provocation as the victim was having an affair with the prisoner’s daughter who is supposed to be related to him through marriage. The night before burning down the kitchen the victim had been having sex with the prisoner’s daughter in there so when the victim ran away after he confronted him he decided to burn it down out of frustration. The prisoner was frustrated also with his niece who is married to the victim in that she knew about the affair but did nothing about it. It has brought shame to the family and to make it worse the prisoner’s daughter got pregnant as a result of this relationship and has recently given birth to the victim’s child. The prisoner and his wife are now looking after the child.
    
13. Counsel cited the case of the State v. Baundo [2007] PGNC 202; N5045 where a bush material house was completely burnt down. Prisoner pleaded guilty. He was sentenced to 6 years imprisonment which was wholly suspended. In the case of State v. Wakis [2008] N3426 the prisoner set fire to a dwelling house and adjacent boi haus. He pleaded guilty and was sentenced to 6 years which was wholly suspended.
    
14. And in the State v. Sengi [2015] N6087 where the prisoner set fire to a primary school staff office. Louvers, curtains, fly wire and some school materials were burnt. He pleaded guilty and was sentenced to 2 years imprisonment which was also wholly suspended.

Counsel submits a sentence in the range of 2- 6 years is appropriate under the circumstances.

15. Counsel for the State did not file any written submissions but was given leave to provide oral submissions. Counsel submitted that this is a prevalent offence and is regarded by the law as a very serious offence as is reflected by the maximum sentence of life imprisonment.
    
16. As guidelines counsel cited the cases of Polau v. State [2013] PGSC 6; Kongian v. State (2007) PGSC 45 where the Supreme Court agreed with the case of the State v. Yeskulu (2003) N2410 that a head sentence of 5 years imprisonment for burning down a garden house or a hauswin and 10 years for a dwelling house is appropriate.
    
17. The offence of Arson carries a maximum sentence of life imprisonment and it can be considered very serious if there is a potential risk to life. However the Courts are given a discretion under Section 19 of the Criminal Code to pronounce sentences in criminal cases according to the particular facts and circumstances of each individual case.
    
18. In Arson cases certain factors that should be taken into consideration are whether it is a dwelling house with people inside or with no occupants? Whether it is a public institution like a school or aid post with people inside? Whether it is a garden house or a hauswin? The type and value of the house? Was there more than one offender, did the prisoner put lives at risk, was it an isolated incident and was de facto provocation present? Did the accused co-operate with the Police?
    
19. In this case the Court takes into account that the prisoner pleaded guilty. This is his first offence and he has no prior convictions. He has co-operated with the Police as can be seen by his admissions in his Record of Interview. He has expressed genuine remorse and there was the presence of de facto provocation.
    
20. No lives were put at risk and this was a bush material haus kuk. The victim and his family do not want the prisoner to be given a custodial sentence but to come home and rebuild their haus kuk and to conduct a reconciliation ceremony in the traditional way between them. There is also a favourable Pre-sentence report.
    
21. The Report says that he is a member of the Catholic Church and that he fully participates in Church activities and in the community. He is a member of the Law and Order community and does awareness within the community in relation to drug abuse and use of illegal alcohol like home brew. He also takes part in sporting activities for the youth of the village.
    
22. The Court takes into account the prisoner’s plea of guilty and that this is his first offence and he has no prior convictions. He fully co-operated with the Police and no lives were put at risk. The haus kuk was not occupied at that time and it was of bush material.

Therefore it is the view of the Court, taking all the above factors into consideration, that a sentence of three (3) years imprisonment is appropriate under the circumstances. Four (4) months spent in pre-trial custody will be deducted leaving a sentence of two (2) years and eight (8) to be served.

23. In exercising the Courts discretion under Section 19 of the Criminal Code and in view of the very favourable pre-sentence report (See: Public Prosecutor v. Don Hale (1998) SC564), the remaining sentence of two (2) years and eight (8) months will be wholly suspended and the prisoner placed on a Good Behaviour Bond for that period – 2 years and 8 months, under the following conditions:-

(a) Must keep the peace and be of good behaviour for the duration of the Order which is two (2) years.

(b) Must rebuild the victim’s haus kuk within one (1) calendar year from the date of the sentence. Probation officer to notify the Court of progress reports every month.

(c) Must organise and take part in a customary reconciliation with the victim and his family to be supervised by the probation officer and village chiefs within six (6) months of the date of sentence.

(d) Must reside at Natohia hamlet at Hahalis village in Buka and must not leave this village unless he obtains leave of the Court.

(e) Must not leave the Autonomous region of Bougainville unless leave is obtained from the Court.

(f) Must refrain from taking any alcohol or other intoxicating substances or drugs for the duration of the Order.

(g) Must attend church services and take part in church activities in the village church.

Any cash bail monies to be refunded.

24. The prisoner should note that the breach of any of the above conditions will cause him to be arrested and brought before this Court to explain why he should not be sent to prison to serve out his term.
    
25. The sentence of the Court is therefore:
    

Length of sentence – 3 years.

Pre-sentence deducted – 4 months.

Sentence to be served – 2 years and 8 months.

Sentence suspended – 2 years 8 months.

Time to serve in custody – Nil – subject to compliance with Conditions.

Sentenced Accordingly.

___________________________________________________________
Public Prosecutor : Lawyer for the State
Public Prosecutor : Lawyer for the Prisoner