State v Lazarus [2019] PGNC 149; N7871 (20 May 2019)

N7871

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 930 & 931 of 2018

THE STATE

V

BENJAMIN LAZARUS
&
PAUL SULAK

Kerevat: Susame, AJ
2019: 17 April & 20 May

CRIMINAL LAW – sentence on plea- offence - arson- s436 (a) criminal code burning of a bush material dwelling house at night – more than one person involved – prisoners sentenced according to the degree of participation – 7 years starting sentence – reduced to 6 years – 11 months & 27 days in custody deducted – 5 years 3 days resultant sentence wholly suspended on probation with conditions

Cited Cases
The State v Ipu Samuel Yom [1992] PNGLR 261
The State v Yeskulu (2003) N2241
The State v Bart Kiohin Mais & Anor (2005) N2811
The State v Samuel Toleo (2019) N7801

Counsels:

Mr. Tugah, for the State

Ms. Ainui, for the Prisoner

DECISION ON SENTENCE

20^th May, 2019

1. SUSAME, AJ: Prisoners pleaded guilty to a charge of arson under s 436 (a) of the Criminal Code on 17 April 2019. They are in court to receive their sentence.

Facts

2. Facts upon which prisoners were convicted are these. On 5 August 2017 at 3.00 o’clock in the morning, the prisoners were at Wara Pukpuk Block in Gazelle District, East New Britain (ENBP). It was alleged that complainant, Peter Rasta had raped Isaac’s wife. The husband Isaac and Tuvie went to the prisoners’ house and asked them to accompany them to go to the complainant’s house to resolve the allegations. The four walked to the complainant’s house and they called him to go out of the house to see them. Complainant went out of the house and when he saw them he reentered the house and locked the door. Four of them broke the windows and gained entry into the house. They pulled the complainant out of the house and assaulted him. Then they proceeded to set fire to his house with a gas lighter and coconut leaves. The house was completely destroyed.

Issue

3. What is the appropriate penalty the court should impose?
   
4. Offence of arson carries the maximum penalty of imprisonment for life. However, court may impose a sentence shorter than the maximum by invoking s19 sentencing powers.
   
5. The accepted sentencing practice is that maximum penalty should not be readily imposed unless facts and features of the case are so grave to be considered the worst type. Counsels are in agreement the present case is not the worst type to attract the maximum penalty.

Allocutus

6. In his address on sentence prisoner Benjamin Lazarus had this to say: I ask for mercy of this court and say sorry. I ask this court to go back and I will build the house again. That is all.
   
7. Prisoner Paul Sulak had this to say. I say sorry for what I have done. I ask for court’s mercy. I have a family. I say sorry to the persons I have wronged. It wasn’t us who did it. It was someone else. We watched him do it. Thats all.

Submissions.

8. I have considered the submissions. Both counsels have referred the court to few judgments to assist the court. Among them are The State v Ipu Samuel Yom [1992] PNGLR 261 & The State v Yeskulu (2003) N2241 which prescribed on sentencing guidelines in arson cases.
   
9. Ms. Ainui of the prisoner submitted the two prisoners were just taken along to provide support to Isaac who actually set alight the house. She submitted mitigating factors outweighed the aggravating factors. She considered 5 years to be the starting point as decided in The State v Ipu Samuel Yom (supra). Ms. Anui submitted sentence of 4 years to be imposed and taking into account the mitigating factors sentence should be wholly suspended with conditions.
   
10. Mr. Tugah representing the State submitted arson cases are serious in that lives and properties at put at risk. He asked the court to impose a custodial sentence on the offenders as they appear to be habitual offenders and a threat to society. He submitted penalty should act as personal and general deterrence and the need for them to be properly rehabilitated in the prison facilities. He further submitted if the court decides for partial or full suspended sentence court should order compensation and rebuilding of the complainant’s house as strict conditions for them to comply with.

Court’s View

11. Firstly, I consider aggravating factors outweigh the mitigating factors. Nonetheless, I do not consider this is worst type of arson case to warrant the maximum penalty. Penalty of a shorter sentence other than the maximum will be imposed in the exercise of my discretion under s 19.

Mitigating Factors

• Prisoners pleaded guilty to the charge

• Prisoner Benjamin was 17 years old and a juvenile when he committed the offence. He is now 19 years of age and a young offender.

Aggravating Factors.

• Prisoners were in a group. They encourage and abetted each other.

• They went in the early hours of the morning when the place was still

dark.

• Complainant and his family were forced out of the house and put their lives at high risk and his dwelling house was set on fire which was completely destroyed with all his properties. Complainant’s loss was estimated at K4, 500.00

• It was a deliberate and planned act.

• There was no provocation offered.

• Prisoners are not first time offenders. They had been convicted for possession of marijuana by Kerevat District Court on 14 April 2018 and sentenced to Five months imprisonment.
• Prisoners did not cooperated fully with the police. They did not make full admissions in the record of interview.

Pre-Sentence and Means Assessment Reports

12. The reports are informative. Prisoners’ particulars. Benjamin Lazarus is of mix parentage of East New Britain Province and Western Province. He resides with his parents at Ragaga Block, Inland Baining Local Level Government within Gazelle District. He is 19 years of age and a young offender. He is single. His mother has passed on. He is survived by his father and 9 other siblings. Prisoner completed Grade 8 education and is not working for an income. He depends on his family for support.
    
13. Paul Sulak is from Kandrian, Gloucester District of West New Britain Province. He resides at Ragaga Block, Inland Baining Local level Government Gazelle District with his wife and two children. His parents are still alive and live at Sonoma, Kokopo District. He is 27 years old. Prisoner completed Grade 8 and is not working for income. He relies on subsistence farming and get additional support from his family.
    
14. Views were expressed by the prisoners and persons interviewed for payment of K3000.00 compensation and reconstruction of complainant’s house as conditions of probation sentence. Probation Officer also recommended a probation sentence with various conditions.
    
15. Victim’s impact statement has not been obtained as to what his position is about the prospect of reconstruction of a new house and on payment of compensation offered by the prisoners. No information is provided as to the estimated loss of property.
    

Comparable Judgments

16. Court will be guided by sentencing guidelines and tariffs in decided cases. Counsels have assisted the court with few of them. I will make reference to them.
17. In The State v Yeskulu (2003) N2241 Kandakasi J prescribed the following considerations:

1. A dwelling house with people inside

2. A dwelling house without any occupants

3. Public institutions such as school, hospital, or offices with occupants

4. Public institutions such as school, hospital, or offices without occupants

5. A haus wind (rest hut) or garden house or a run-down or dilapidated or incomplete house.

18. The case involved a burning down of a bush material classroom. Court imposed a 7 years jail term which was wholly suspended and prisoner placed on probation with conditions considering prisoner’s favourable report.
    
19. Two years later in The State v Bart Kiohin Mais & Anor (2005) N2811 Cannings J formulated the following guidelines:

1. Did the offender cause damage of relatively low value?

2. Was there no person or class of persons directly affected by the damage or destruction of the property?

3. Did the offender not put lives at risk?

4. Was there only one offender?

5. Did the offender not plan the offence in a deliberate and calculated manner?

6. Did the owner of the property or any person provoke the offender in the non-legal sense?

7. Was it an isolated incident?

8. Did the offender give himself up after the incident?

9. Did the offender cooperate with the police in their investigations?

10. Has the offender done anything tangible towards repairing his wrong, e.g. offering compensation engaging in a peace and reconciliation ceremony, personally or publicly apologizing for what he did

11. Has the offender not caused further trouble since the incident?

12. Has the offender genuinely expressed remorse?

13. Is this his first offence?

14. Can the offender be regarded as a youthful offender?

15. Are there any other circumstances of the incident or the offender that warranted mitigation of the head sentence?

20. This case involved burning of a semi-permanent dwelling house. Prisoner was sentenced to 2 years imprisonment.
    
21. I noted the sentences imposed by the courts in the other cases counsels referred to. Variety of sentences were imposed from 2 years, 3 years, 4 years and 5 years. All those cases were decided on their own peculiar set of facts and circumstances. They are not binding upon this court but serve as a guide.
    
22. As far as I am concerned burning down of a dwelling house is quite serious. I reaffirm what I said in The State v Samuel Toleo (2019) N7801:

Destruction of properties and burning down of houses in disputes/conflicts is becoming far too common in our society. In respect of a dwelling house it does not matter if it is a permanent, semi-permanent or a bush material house. What matters is shelter is a basic human need. Destruction of it with all the possessions inside is akin to life being destroyed. Families are displaced and left without the comfort of their homes and are denied quite enjoyment of their valuable possessions which they had acquired over time. It is for that reason the law makers prescribed a maximum penalty of life imprisonment to reflect the serious nature of the offence. Instead courts have been imposing sentences far lower than the maximum.

23. As regards the prisoners culpability each of them will be sentenced according to the level or degree of participation. Prisoners abated and encouraged Isaac by accompanying him to the complainant’s house to sort out the conflict in an unlawful way. None of the prisoners discouraged Isaac from going particularly at such an hour of the night. Prisoner’s presence gave Isaac the courage to set alight the house on fire after the family were forced out of the house.
    
24. Ms. Ainui submitted for a 5 years starting sentence following The State v Ipu Samuel Yomb (supra). Considering the mitigating factors 4 years sentence should be imposed.
    
25. I consider the starting sentence of 7 years is appropriate. I do not think sentence should go up any higher & years should be sufficient sentence. Considering their plea, I will allow a discount of 1 year leaving balance of 6 years.
    
26. Accordingly, prisoners are sentenced to 6 years imprisonment with 11 months 27 days period in custody to be deducted leaving the balance of 5 years & 3 days sentence. Whole of the sentence is suspended and prisoners are placed on probation.
    
27. In addition to the mandatory conditions of Probation these other conditions are ordered:
    
    1. Prisoners to construct complainant’s house at their own expense six (6) months if none has been built by the complainant.
    2. Further prisoners to pay compensation of K3000.00 in equal percentage by 30 November 2019.
    100. Prisoners to arrange a reconciliation ceremony with the Ward Member, Village Court Magistrate a Church Pastor to be witnessed by the Probation Officer.
    4. Prisoners to attend regular church services every Sunday.
    5. Prisoners are restraint from consumption of alcohol and other illicit drugs and substances.
    6. Prisoners are to maintain peace and good order in the community.
    7. Prisoners are report to the Probation Officer, Kokopo with 24 hours upon release from custody.
    8. Prisoners are restraint from changing their usual place of abode and not to leave East New Britain with the leave of court through the Probation Officer.
    9. Prisoners to heed to all instructions given by the Probation Officer.

Summary of Sentence

1. 7 years starting sentencing
2. Reduced to 6 years imprisonment
3. 11 months 27 days custody period deducted.
4. 5 years 3 days effective sentence wholly suspended on Probation with conditions.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner