State v Toleo [2019] PGNC 95; N7801 (16 April 2019)

N7801

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 905 OF 2001

THE STATE

V

SAMUEL TOLEO

Kokopo: Susame AJ
2019: 10, 12 & 16 April

CRIMINAL LAW – Sentence – Plea - Offence – Arson –S436 (A) Criminal Code – Group Raid – Bush Material Dwelling House - A Match Used – No Provocation – Parity Principle Considered – 4 Years Imprisonment- Less 1 Year Conssession For Early Plea - 6 Months 6 Days Deducted From Resultant Sentence For Custody Period – Balance Of 2 Years 5 Months 24 Days Wholly Suspended. – Prisoner Placed On 3 Years Probation With Conditions.

Cases Cited

Goli Golu v The State [ 1988-1989] PNGLR 643
The State v Bart Kiohin Mais & Anor (2005) N2811
The State v David Kondave CR N0. 1450 of 2006,
The State v Francis Kawa Kauke, CR N0. 640 of 2012 N5131
The State v Ipu Samuel Yom [1992] PNGLR 261
The State v John Wesley Funil CR 905 & 1552 of 2001, dated 12 December 2008
The State v Kuru Bisok & Gahu Kuru CR N0. 42-43 of 2007
The State v Penny Bilak (2005) N2866
The State v Peter Kapet CR 905 & 1552 of 2001 dated 12 September 2007
The State v Pius Patrick Kosa Jnr CR N0. 950 of 2017
The State v Seye Wesea Bukere (1999) N1848
The State v Wai Kibob & Galau Hagui (2008) N3944
The State v Yeskulu (2003) N2241
The State v Yunate Epa (2008) N3309

Counsel

Mr L. Rangan, for the State
Ms JM. Ainui, for the Prisoner

DECISION ON SENTENCE

16^th April, 2019

1. SUSAME AJ: Prisoner pleaded guilty to the charge of Arson under section 436(a) of the Criminal Code. Plea was consistent with instructions given to his lawyer. Court found the evidence in the court file tendered covered the elements of the charge. Prisoner made admissions of his guilt in committing the offence in the record of interview. Court found the plea unequivocal and entered conviction against the prisoner.
   

Facts

2. On 30 March between 4pm and 5pm a group of more than 20 men from Ratung, Iawakaka and Kuraip villages went to Vuvu Plantation where the Manager and labourers lived. Prisoner was in the group. Their intention was to order the workers out of the plantation and acquire the property. The men were armed with two home-made guns, and other offensive weapons and objects such as axes, iron, sticks and sling shots. They threatened the workers and burnt down a bush material kitchen house owned by Peter KongKong and other 11 houses. Prisoner personally used a match and set alight a bush material dwelling house owned by John Bulu and his family which was completely gutted by fire. Thereafter, prisoner and the group left the place.
   

Offence

436. ARSON.

A person who wilfully and unlawfully sets fire to–

(a) a building or structure, whether completed or not; or

(b) a vessel, whether completed or not; or

(c) a stack of cultivated vegetable produce; or

(d) a stack of mineral or vegetable fuel; or

(e) a mine, or the workings, fittings or appliances of a mine; or

(f) an aircraft or motor vehicle,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

Sentencing Guidelines in Arson Cases

3. In The State v Yeskulu (2003) N2241 (burning of a bush material school classroom) Kandakasi J suggested 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
   
4. Court imposed a 7 years jail term which was wholly suspended and prisoner placed on probation with conditions considering prisoner’s favourable report.
   
5. In The State v Bart Kiohin Mais & Anor (2005) N2811 (burning of a semi-permanent dwelling house) 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?
    
6. In that case a 2 years sentence was imposed.
   

Prisoners Characteristics

7. In his plea on sentence prisoner asked the court to have mercy on him. His wife has health issues with her breast. He asked the court to serve his sentence outside of prison. The pre-sentence report provided additional information about the prisoner, his family, views expressed by couple of members of prisoner’s family, a catechist with the Catholic Church and probation officer’s recommendations. Court has taken note of the report. Prisoner is a young adult aged 30 and is a first time offender. He pleaded guilty to the charge which goes to his favour.
   
8. Court has heard submissions on sentence. In their respective submissions counsels assisted the court with a number of decided cases as a guide. These are:
   
   • ➢ The State v Ipu Samuel Yom [1992] PNGLR 261
   • ➢ The State v Seye Wesea Bukere (1999) N1848
   • ➢ The State v Yeskulu (supra)
   • ➢ The State v Penny Bilak (2005) N2866
   • ➢ The State v David Kondave CR N0. 1450 of 2006,
   • ➢ The State v Kuru Bisok & Gahu Kuru CR N0. 42-43 of 2007
   • ➢ The State v Wai Kibob & Galau Hagui (2008) N3944
   • ➢ The State v Yunate Epa (2008) N3309
   • ➢ The State v Francis Kawa Kauke, CR N0. 640 of 2012 N5131
   • ➢ The State v Pius Patrick Kosa Jnr CR N0. 950 of 2017
     
9. Each case was decided on its peculiar set of facts. I have taken note of the sentences that were imposed.
   
10. Ms Ainui of counsel for the prisoner pleaded for a head sentence of 7 years. Mr Ragan submitted two of the co-offenders have been convicted and sentenced earlier. (The State v Peter Kapet CR 905 & 1552 of 2001 dated 12 September 2007 & The State v John Wesley Funil CR 905 & 1552 of 2001, dated 12 December 2008). He submitted prisoner had been in custody after having been arrested for 6 months 2 days. He submitted further prisoner to pay a fine and that sentence should be within the same range to that of other two co-offenders.
    
11. An uncertified copy of the court judgment and sealed copy of warrant of commitment were tendered with leave of court. Court takes judicial notice of the warrant and the judgment as true copies of the original documents.
    
12. In the pre-sentence report prisoner’s family expressed their sympathy to the complainants and want to apologise to them for what the prisoner did. They said they will assist the prisoner with payment of compensation.
    
13. If there has to be some form of apology it should come from the prisoner first to the complainant. He has expressed no remorse in court. What about the person he has wronged? Should the prisoner offer some apology, even pay some form of compensation for the loss the complainant had suffered? Naturally, he should.
    
14. 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.
15. The court is reminded of the sentencing principle in Goli Golu v The State [1988-1989] PNGLR 643 on maximum penalty. The criteria to justify the maximum penalty are not present in this case. Maximum is not being considered.
16. I think it is high time longer deterrent sentences should be imposed. My suggestion is that 10 years should be the head sentence for burning down of a dwelling house in whatever shape, size and form. Depending on aggravating or mitigating and extenuating factors court may exercise discretion to impose a sentence higher or lesser than 10 years.
17. Though, that said no such sentence will be imposed here, even 7 years sentence suggested by Ms Ainui. I am reminded of the parity principle which Mr Rangan was getting at in his oral submission. The essence of parity principle of sentencing is that those convicted for the same offence or a similar offence should receive similar sentence. Sentence of 4 years imposed by Lenalia J in The State v Peter Kapet (supra). That was considered the starting point in The State v John Wesley Funil (supra) by Lay J. Lay J considered 4 years sentence was after trial. Considering the offender’s plea and cooperation with police a concession was allowed and His Honour imposed a partially suspended sentence of 3 years.
18. This particular prisoner absconded bail and was on bench warrant unit he was apprehended recently. Had the prisoner not escaped he would have received a similar sentence.
19. The estimated value of the house and possessions destroyed have not been verified. Prisoner was part of the group that went onto the property in their attempt to forcefully acquire the plantation that belonged to the Catholic Church. Dangerous and offensive weapons were used. There was no provocation offered by the owner of the house that prisoner set alight. People’s lives were put on great risk.
20. Accordingly, prisoner is sentenced to 4 years imprisonment with hard labour. Concession will be allowed for his plea. Sentence imposed will be reduced by a year. That will leave a balance of 3 years.
21. However, pre-sentence custody period of 6 months 6 days to be deducted from 3 years.
22. That leaves a balance of 2 years 5 months 24 days to serve.
23. Should the court suspend part or whole of the sentence? If a sentence is to be wholly or partially suspended it will be for purposes of rehabilitation with specific conditions like payment of compensation, restitution or doing of some specific act. There was willingness to pay some form of compensation by the prisoner’s family. Prisoner does not have a good source of income. But, offered to pay K500.00 compensation and help rebuild the house that was burnt down. Though complainant’s view was not obtained court will allow the opportunity for reconciliation between the parties if that has not occurred.
24. Accordingly balance of sentence is wholly suspended with the following conditions to comply with:
    1. Prisoner is placed on probation for 3 years.
    2. Upon release from prison prisoner to report to Probation Officer Mr Noel Awagalas at Kokopo Community Based Correction Office within 24 hours.
    3. Prisoner to pay compensation of K500.00 cash within one month to the complainant
    4. Prisoner to help construct complainant’s house within 6 months at his own cost and labour.
    5. Prisoner to facilitate a reconciliation ceremony in the presence of the Ward Member, Elders and a Church Minister to be witnessed by the Probation Officer, Mr Awagalas
    6. Prisoner is restraint from taking alcohol for the entire duration of the probation sentence.
    7. Prisoner to heed to all instructions given by the Probation Officer.
    8. Progressive report to be filed and delivered to my chambers by 27 September 2019.
25. Summary of Sentence
    1. 4 years sentence imposed
    2. Less 1 year concession for plea
    3. 3 years balance of sentence
    4. 6 months 24 days deducted for pre-sentence custody period.
    5. 2 years 5 months 24 days effective sentence, wholly suspended on prisoner being placed on probation for a period of 3 years with conditions.

_______________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Prisoner