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Regina v Rere [2017] SBMC 48; Criminal Case 258 of 2016 (4 October 2017)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS


CRIMINAL JURISDICTION


Criminal Case No. 258 of 2016


REGINA
V
PATKEN RERE


Trial: April 24-28, 2017, May 5th, 12th, August 7th – 11th, 28th 2017
Date of closing submission: August 31 and September 4-5, 2017
Date of Judgment: September 14, 2017
Date of sentencing hearing: September 28th, 2017
Date of sentence: October 4th, 2017


Ms. O. Ratu for the prosecution
Mr. L. Chite for Patken Rere


SENTENCE


  1. On the 14th of September 2017, the Court found the defendant, Petken Rere, guilty of 5 counts of arson contrary to section 319 of the Penal Code. These charges relate to the burning of 5 buildings during the rampage that took place at the Windridge settlement on the 17th of April 2016. Four were dwelling houses owned by Jonah Bea, Joseph Tolaeni, Lawrence Mane, Sharon Dai and a kitchen house owned by Henry Tila. They were completely torched down during the incident.
  2. The maximum penalty prescribed for this offence is yet to be amended and still remains at life imprisonment. A plain reading of this penalty would indicate to any individual in this jurisdiction that it is the harshest penalty prescribed by our law. It also reflected the intention of our legislators when enacting the Penal Code the need to discourage individuals from committing this offence knowing that the consequence that will follow will attract severe punishments or lengthy custodial sentences.
  3. I am mindful that the conviction herein was following a trial and not from a guilty plea.
  4. The offence of arson or the unlawful burning of other people’s property(s) is a serious crime. When it involves the burning of dwelling houses or kitchens, is even more serious. The lives of the victim(s) are always at stake and at risk of being displaced and the other associated suffering or hardship that come about as a result of the loss of property(s) are also unbearable.
  5. A person’s house or shelter represents his life and existence. So when there is an unlawful burning of another man’s dwelling house or shelter regardless of whether it is a permanent, semi-permanent, made or bricks or thatched materials, it is the other way round of destroying the life and existence of a human being.
  6. Therefore, the Courts must be mindful of the objective seriousness of this offence and not to lose sight of the suffering and hardships faced by the victims of the arson cases when it comes to sentencing the offender(s).
  7. Sentences decided by the Courts[1] for convictions following a trial showed the range of 2 ½ - 5 years imprisonment, depending on the nature and circumstances of the offending; the culpability of the offender; the number and the types of buildings destroyed during the offending. This range of sentence is only for the principal offenders in the first degree but not for offenders charged for counselling under section 21 of the Penal Code.
  8. Section 21 of the Penal Code provides that a “conviction for counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.” A plain reading of this section means a person convicted of counseling or procuring “is liable to the same punishment.” This analogy was reiterated in the case of R v Kemakeza,[2] where CJ, directed that “Any Court therefore, whether the Magistrates Court or the High Court, are bound to ensure that the provisions of these laws are followed”[3] when it comes to sentencing offenders charged with section 21 of the Penal Code and whatever sentence imposed should be identical to the offender(s) who commits the principal act.
  9. During the trial, I found the defendant guilty of counselling, advising or instructing Steward Rere, Raymond Obe Launigo and Ronnie Obe to burn the houses and the kitchen at Windridge the material time. He was the one who ordered them to burn the buildings. They did exactly as instructed/ordered and they perfectly carried it out by using the match to ignite or set fire to those 5 buildings. He instructed them when he was at close proximity to the houses/buildings or in other words, at the crime scene. Those buildings were completely torched to the ground when the group of men attacked the Windridge settlement at the material time.
  10. When these facts are considered, it is my view that he should be liable to the same consequence as if he’s the one who set fire to the houses/buildings. In order words, the extent of his participation in counselling the others who burned the buildings at Windridge has rendered him liable to receive the same punishment as the principal offender in the first degree.
  11. So what are the relevant sentencing trend been handed by the Courts for the offence of arson following a trial?
  12. In the case of Randy v R,[4] the accused, a member of the Guadalcanal Liberation Front, was convicted after trial for burning two dwelling houses at Marasa village in the Guadalcanal Province. He was armed and joined a group of militants when he committed the offence. Upon conviction, the trial Magistrate transferred the case to the High Court for sentence. He was sentenced to 5 years concurrent sentence for the arson charges. This sentence was upheld by the Court of Appeal following his unsuccessful appeal against the sentence.
  13. In another High Court case of Kaieti v R,[5] the accused was charged with one count of arson and other charges. He was convicted after trial and sentenced to 4 years imprisonment. It appears that the offending was carried when the occupant was not present or chased out of the house. On appeal, the High Court reduced the sentence to 2 ½ years due to the delay of 5 years and 10 months from the date the offence was committed to the time of sentencing.
  14. In the case of R v Ome[6], the accused persons, John Ome and David Suiti were convicted after trial for one count of arson of buildings and structures besides other charges. Both accused persons took advantage of the Malaita Eagle Force and carried out a broad-day light burning of the buildings and structures at Abuna’ai village in the Malaita Province after the occupants were attacked with firearms due to disagreement over land issues with the complainant’s family. They were sentenced to 4 years imprisonment.
  15. In the recent case of R v Benjamin Viki,[7] the accused was convicted after trial at the Central Magistrate’s Court for burning of a dwelling house made of thatched materials at Goni settlement in the Central Islands Province. The accused was drunk and in the company of others when he burned the house. All the personal belongings and valuable properties of the complainant and his family were destroyed and only the cloths they wore were the ones remained. He was sentenced to 5 years imprisonment.
  16. Those cases unfortunately did not set any guideline for the Court to follow when sentencing offenders who are convicted of arson. This makes the role of the sentencing Court more difficult in trying to establish a common dominator or tariffs so that like cases are treated alike. Given that the offence of arson is now common or prevalent in Solomon Islands, I think the time has come that our Courts need to establish a clear sentencing guideline for sentencing of arsonist as what other jurisdictions have done like in the context of Papua New Guinea.[8]
  17. In the absence of a sentencing guideline, I am compelled to look at the Papua New Guinea cases of the State v Ipu Samuel Yomb[9] and the State v Yeskulu[10] as useful guidelines when considering the appropriate sentence to be imposed in the present case.
  18. In the Yomb’s case, the Court listed the following factors that must be taken into account:
  19. The categories that arson are not closed. However, typically, the arson charge may fall under these categories as helpfully listed in the Yeskulu’s case:
  20. For the present case, it involves the deliberate ordering of other persons to set fire to the buildings. Also, the buildings in question were dwelling houses and a kitchen. There are other factors that of course may not apply due largely to the fact that the circumstances of a case may differ from case to case, but the above has been accepted as a general guide to assist me in deciding the appropriate sentence.
  21. In order to nominate the starting point of the sentence to be imposed for the defendant herein, this will depend on the consideration of the aggravating and mitigating factors.
  22. The aggravating factors I consider for this case are:
  23. In mitigation, I find the following factors in his favour:
  24. The presence of the aggravating factors clearly showed that this offending is serious within the category of the offence of arson. It was a broad-day light terrorising of the villagers of Windridge, an incident that will be remembered for the rest of their lives. They were terrified and escaped in all directions for their safety before the burning of the buildings took place. Their efforts and sweats accumulated over a period of time to erect the buildings have gone into flames within a matter of minutes. They were also displaced and lost valuable properties as a result of the callous attack and burning of their buildings emanated from the decision made by the defendant. This is sadistic and inhumane acts that have little if not, no respect at all to the unsuspecting villagers of the Windridge settlement.
  25. The defendant had all the opportunity at the material time to step back and consider the likely consequences of his actions either to him personally or his family before he committed the offences. He knew that he has a young family that is dependent on him and would risk him going to prison or his family will suffer if he involves with the group that rampaged the Windridge settlement. Unfortunately, this has not dawn on him. He blatantly disregarded it and did the opposite. Nowadays, people must learn to think first before doing actions because often times it may lead to other unfortunate consequences such as committing a crime.
  26. I am emphatically urged by his counsel that he has a young family that depended on him for financial support and other necessities in life and therefore, the Court should be lenient with him for his sentence. In my view, there are many offenders who also in the same position as he is and therefore, his concern is of no exceptional circumstance that would warrant his case to be considered differently or exceptionally.
  27. The sentence that I will pass on the defendant herein will not only reflect his personal circumstances and his mitigating factors, but must able to carry the message to any likeminded offender(s) that lengthy imprisonment term is inevitable if one decides to commit the offence of arson especially when it involves burning of several houses/buildings at one occasion like the present case. It must ring a bell to all inhabitants of Solomon Islands regardless of whether or not a person is a citizen that if they decide to commit arson, they are journey-bound to prison.
  28. Considering all these factors and taking into account his level of culpability, the nature and circumstances of the offending herein and further, considering the conviction herein follows the trial, I therefore sentence him to 5 years imprisonment for each count of arson contrary to section 319 of the Penal Code. All sentence will run concurrently. I reduced 1 year from this head sentence to reflect the reconciliation he had with the occupants of the buildings and some delay taken to have this matter finalised.
  29. The resulting sentence therefore is that the defendant, Patken Rere, is sentenced to 4 years imprisonment. Time spent in custody is to be deducted.
  30. Right of appeal applies to any aggrieved party.
  31. Order accordingly.

------------------------------------------------------------------------------------
THE COURT
Augustine Aulanga – Principal Magistrate


[1] The Magistrates Court, the High Court and the Court of Appeal
[2] HCSI-CRC No. 467 of 2007
[3] At paragraph 23 of the decision
[4] [2006] SBCA 3; CA-CRAC 020 of 2005
[5] [2007] SBHC 93; HCSI-CRC 358 of 2006
[6] [2011] SBHC 109; HCSI-CRC 265 of 2006
[7] CMC-CRC No. 1277 of 2015
[8] For example in Papua New Guinea. See the cases of the State v Ipu Samuel Yomb [1992] PNGLR 261 and the State v Yeskulu [2003] PGNC 88; N2410
[9] [1992] PNGLR 261
[10] [2003] PGNC 88; N2410

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