State v Barzinu [2023] PGNC 492; N10618 (13 December 2023)

N10618

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 2034 OF 2023

THE STATE

V

OSCAR BARZINU

Lae: Kangwia J.

2023: 12^th & 13^th December

CRIMINAL LAW – Arson – burning down of dwelling in village setting – arsonist under influence of alcohol – appropriate sentence for a dwelling - necessity to depart from sentencing trend for dwellings – restitution inappropriate – sentenced without suspension.

Cases Cited.
State v Ipu Samuel Yomb [1992] PNGLR 261
State v Kiwo & Tovili Kula (2019) N1103 & N1104
State v Calistos Kadoka & Samuel Kadoka (2017) N8454
State v Yeskulu (2003) N2410
State v Ambasi (2018) N7597

Counsel:
P. Matana, for the State
V. Ngibe, for the Defence

13^th December 2023

1. KANGWIA J: Oscar Barzinu appears for sentencing after he was convicted on his guilty plea to one count of arson pursuant to s 436 (a) of the Criminal Code. The facts that led to the charge state that the prisoner who was under the influence of alcohol went to the victim’s residence and shouted for her to come out. Neighbours who intervened were threatened with stones and a bush knife. The victim took her children and ran away to the bush. From a distance they saw the prisoner set fire to their residence and property valued at K18,000. The prisoner stood and watched until the building was burnt to the ground. He was later arrested and charged.

2. He is believed to be 21 years old and a single villager. He has no prior convictions.

3. On his allocatus the prisoner said; “I say sorry to the complainant for what I did. Sorry to the Court for breaking the law. I will not do it again. I ask for mercy of the Court”.

4. On his behalf Mr Ngibe submits that a suspended sentence of 4 to 6 years with opportunity to make restoration in line with the guideline suggested in State v Ipu Samuel Yomb (1992) PNGLR 261 was appropriate. The prisoner in the present case co-operated with police and pleaded guilty early. He expressed remorse as a first-time offender and there was de-facto provocation present. The Court was also invited to the cases of State v Kiwo & Tovili Kula (2019) N1103 & N1104, and State v Calistos Kadoka & Samuel Kadoka (2017) N8454 as comparable guides in the sentencing trend for the offence.

5. The prisoner in the Yomb case was on a guilty plea, sentenced to 5 years from a seven-year sentence for burning down a semi-permanent house. In the Kula case on a guilty plea the prisoners were given a wholly suspended sentence of 4 years with restitution orders for 5 buildings valued at K61,387.5754. In the Kadoka case on a guilty plea the sentence was also a wholly suspended sentence of 4 years with restitution for burning down of a permanent house valued at K54, 000.

6. The further submission by Mr Ngibe is that since the value of the property burnt down is not from a reliable source is should not be relied on for an appropriate sentence.

7. On behalf of the State Ms Matana submits that a custodial sentence of 6 to 10 years was appropriate because of the seriousness of the offence and its prevalence. The building was a dwelling valued at K18,000, and it took time effort and expense to build. The reason given for committing the offence did not warrant the burning down of the house. It was aggravated when the arson was committed in the night under the influence of alcohol whilst the occupants were asleep. The cases of the State v Yeskulu (2003) N2410; and State v Ambasi (2018) N7597 were cited as possible guides.

8. In the Yeskulu case the offender on a guilty plea to committing arson on a elementary school building housing s classrooms was sentenced to 3 years to be suspended on conditions including restitution of K9,000. In the Ambasi case on a guilty plea to burning down of a semi-permanent house was sentenced to 5 years imprisonment.

9. The present case involves the deliberate burning down of a dwelling whist the owners were asleep. In the process lives were nearly lost. It happened in a village setting.

10. It would be generally expected that dwellings in village settings would not be of the most expensive or immaculate type one would find in urban centres. However, a dwelling is a man’s castle regardless of the size and the value. A dwelling would be the most valuable property one has wherever it may be. That is where the comfort of life is planted. On rough estimates a human being spends a substantial part of his or her entire life in a dwelling. No human being hangs on trees like bats unless one chooses to be homeless. It is something to be treasured at all costs.

11. Value to property is reflected in the maximum prescribed penalty of life imprisonment for arson under s 436 of the Criminal Code. The main purpose being to protect property overall.

12. Despite that, value and purpose is not reflected in the current sentencing trend of the Courts for arson. The cases cited by counsels attest to this.

13. The underlying consideration in a dwelling whether it is a shack or mansion is that it takes time, effort and expenses to build one as pointed out in the case of State v Ambasi (2013) N7597. A dwelling does not drop from the sky for someone to dwell in. To have a dwelling burnt down in minutes, would in my view be an unforgiveable sin. It cannot in the remotest of chances be restored instantly. It causes severe and unnecessary hardships to the owners to restore or put another one in its place.

14. In the present case the prisoner deliberately burnt down a dwelling whilst the owner was sleeping. He was also under the influence of alcohol when he committed the offence. He stood and watched until the entire building was burnt to the ground.

15. Even though there is no evidence of valuation on the dwelling and other personal property lost in the burning I accept the itemised list and photos of the remaining roofing irons attached to the Court depositions which were tendered into evidence by consent that the value of the dwelling and property lost totalled K18,000. That is a substantial loss in a village setting.

16. The reason given in the record of interview for burning down the dwelling states that he was provoked because the father of his niece’s two kids left them behind to be cared for by his parents. That statement cannot be accepted as a valid reason to diminish culpability. There are processes in place where aggrieved persons can take their grievances to. The prisoner failed in that regard and took the law into his own hands thinking that burning down of the dwelling with the occupants will settle his concerns.

17. I have difficulty making orders for restitution against an unemployed person whose conduct already displays a lack of understanding and common sense. Even then it becomes a nightmare for enforcement of the restitution order in a village setting.

18. The only remedy lies in a custodial sentence.

19. To do that I propose to depart from the sentencing trend of the courts in relation to a dwelling howsoever the arson is committed or the circumstances under which it is committed.

20. I would suggest that the starting point for arson on a dwelling should be 8 years imprisonment with no suspensions for someone who is unable to make restitution. To go up or down would be subject to the value of the property and other considerations.

21. For burning down the dwelling valued at K18,000 in the present case the prisoner shall be sentenced to 8 years imprisonment. The period spent in custody awaiting sentence shall be deducted and the balance shall be served at CIS Buimo.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence