R v Bitana [2020] SBMC 8; Criminal Case 100 of 2019 (1 April 2020)

IN THE MALAITA DISTRICT MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT AUKI )
(Criminal Jurisdiction)

Criminal Case No. 100 of 2019

REGINA

-v-

GORDON BITANA

Date of plea: March, 3^rd, 2020
Date of hearing: March, 25^th, 2020
Date of sentence: April 1^st, 2020

Mr. Selwyn Vaike for the Prosecution
Mr. Cathy. S. Hite for the Accused

SENTENCE

Introduction

1. On the 3^rd of March 2020, during the Atori Court Circuit, the Accused; Mr. Gordon Bitana entered a guilty plea to the charge of Arson contrary to section 319 (a) of the Penal Code (Cap. 26). I enter conviction on his own unaltered plea. Both counsels for crown and defence have agreed to the facts, of which I accept to be used in my reasoning.
   
2. Subsequent to his guilty plea, I had remanded in custody for sentencing and mitigating submissions to be done in Auki after I explained to him that a custodial sentence is inevitable in his case. This is his sentence.
   

Agreed facts

3. The agreed facts reveals the on the 28^th of September, 2019, at around 7:00PM, the accused was drunk, he walked to the victim’s house with a firewood light with fire in his right hand and put it to the edge of the kitchen house and set ablaze the kitchen.
   
4. The accused then walk away without realizing that the victim was actually sleeping inside the house.
   
5. The victim felt very hot and woke up to saw fire around him. He cannot do anything because he was old and unfit to escape. However, it was fortunate the victim was rescued by two of his uncles.
   
6. The victim’s house was totally burn down to the ground. He is now residing at John Lee’s House at 10 meters away from his burnt house.
   

Pertinent Leitmotif

7. This is an audacious and heartless act by the accused person against an old, helpless and innocent victim who had not predict such would even happen to him and his own treasured home. A clear lack of respect, empathy and compassion for old people in our society. An attitude orchestrated by the fall of respect, spiritual and societal norms within our rural communities, one which partially hinged on the heathenish conservative mind to take up issues on oneself with the quick violent reaction against persons suspected of practicing sorcery. An approach that is surprisingly active in the twentieth first century.
   
8. This is a sad and devastated day for the victim, who has lost all his belongings, properties and home, all because of suspicion that the victim’s son practice sorcery or black magic. The incident was triggered by hate and anger from the accused party after which they blamed the victim’s son to have caused the death of the accused brother with his sorcery.
   

Prescribed Punishment under Penal Code

9. Arson is categorized as one of those serious offences under our Penal Code. It carries a maximum sentence of life imprisonment. A unique one that is akin to that of Murder^[1]. It is clear to state that the prescribed term depicts our law-makers total abhorrence and repugnance against burning of buildings or structures owned by another person without their consent.
   
10. An unlawful burning of a home structure or dwelling house involving imminent risk to life as in this case attracts its own sentencing range, which is in between the mid and upper range. The more houses being scorched the higher the gravity and sentencing range. Cases are decided on their own circumstances and factors. Thus, the Court’s duty to fully maximize the considerations, analysis and assessment on all the matters and materials before it to arrive at a just, fair and proper sentence.
    

Aggravating factors

11. after going through the facts, I validate the following as aggravating factors in his case: -
    1. Premeditated offending – The way in which the offence was carried out and coupled with ill motive involving the dispute over sorcery claim against the victim’s son only demonstrate pre-planning.
       
    2. The Accused was under the influence of alcohol during the commission of the offence. He used liquor to aid his execution and thereby caused the loss to victim’s home and risk to life.
       
    100. The offending took place at night. It occurred while the victim was asleep. He had no knowledge or whatsoever on the accused act. He was simply caught off guide without clue when his uncles came to his rescue.
         
    4. The victim being an old, weak and vulnerable person. The victim is an old elderly person who could not in his own capacity have escaped from the burning house. The accused act is just beyond fathom and one that is hard to easily comprehend. The fear, trauma and anxiety he went through that night is inexplicable.
       
    5. The house was completely burnt down to the ground. It is a loss which apparently takes time, expense and labor to rebuild it. The victim is left in a devastated position of being displaced or homeless. He is currently housed by close relatives.
       

Case Authorities

12. I have been urged by both counsels to distinguish these following cases to this present case, in determining an appropriate sentence for the charge against the accused.
    
13. In R –v- Sasa^[2], the accused pleaded guilty to a charge of Arson. The facts are that the accused went to the victim’s place of residence and set fire to their home based leaf house kitchen, which was situated near their dwelling house. The Accused was sentenced to 6 months’ imprisonment, fully suspended for 2 years.
    
14. In R –v- Sovesuia^[3] the accused was convicted after trial and was sentenced to 2 years imprisonment for attempting to set a fire on a dwelling house inhabited by an elderly woman. The offence was set to be committed at night and was under the influence of alcohol.
    
15. In the case of R –v- Tapalia^[4] The accused person entered guilty pleas on three (3) counts of Arson. The accused burned three (3) dwelling houses in early hours while it was still dark, one owned by his Mother in-law and other two owned by his brother in-laws. Victims had already left due to fear from threats made by the accused but personal belongings were inside the buildings. He did so because he was angry at them for damaging his food crops. The Court having assessed the totality of facts and factors imposed a sentence of 3 ½ years’ imprisonment for each count to be served concurrently.
    
16. In R –v- Junior^[5], the accused was charged with arson together with other offences. He went to victim’s house, started calling and yelling for him but he was away at another village. He made the victim’s wife scared and she escaped with her children. The accused then collected dry coconut leaves, set ablaze and place it on the walling of the house. The house was completely scorched to the ground, valued at $31,639.00. The court having considered all the pertinent factors imposed a 3 years’ imprisonment sentence.
    
17. In Oli v Regina^[6], the appellant was convicted on his own plea for 7 counts of arson involving 6 dwelling houses and a classroom. He was sentenced to 3 years on each count to be served consecutively with another term of 4 years giving the total of 7 years imprisonment. On appeal against sentence the High Court substituted 2 years for each count to be served concurrent with another term of 2 ½ years summing up to 2 ½ imprisonment.
    
18. In case of Regina v Rere^[7], The Defendant was convicted after trial for procuring others to burn four (4) houses at wind ridge, east Guadalcanal Province. The Magistrates Court sentenced him to 4 years’ imprisonment concurrently. This was a blatant burning on innocent people’s houses and putting lives of the victims at risks on that very occasion as well.
    
19. Having outlined the above cases, it is obvious to state that the sentencing tariff in this Jurisdiction ranges from 6 months’ suspended sentence to 4 years imprisonment. Depending on the circumstance of offending, aggravating factors, value and criminal culpability involved.

Sentencing guidelines

20. With the materials before me, I could not ascertain exactly the total value of damage to the dwelling house including the belongings which were being scorched on the date of offence. Therefore, the need to lean on the proper guidelines as expounded in the two Papua New Guinea cases; The State v Yeskulu (supra) and the State v Bart Kiohin Mais & Anor (supra) which has been adopted by this Court in the case of Regina –v- Faiga^[8].
    
21. In The State v Yeskulu (supra), the Court after critically examined the sentencing trend and echoing the need for increasing sentencing tariffs on account of increasing instances of arson
    1. A dwelling house with 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
       
22. Also, in the State v Bart Kiohin Mais & Anor (supra), the Court has made clear guidelines and formulated the following questions:
    
    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. ...
       

Application of above guideline to the present case

23. It is undisputed that the victim was sleeping inside the dwelling house when the accused set ablaze it. It was so fortunate that he was rescued by his other relatives who saw the fire and quickly attended to help him. Had it not for them, it could have ended up badly.
    
24. The value was never disclosed during submissions and silent on the facts. However, I could only assisted with the fact that a dwelling house is a palace to its owner and any value must be recognized as important, disregarding the monetary value of materials used to build it. The locality and or circumstance of the victim in this case must be taken as it is and not to be suppressed by the value of modernized buildings, although that is serious.
    
25. The victim is an old and vulnerable person who is currently weak and a village person who obviously could not easily rebuild the building and grow from the loss. He has suffered both psychological, emotional and financial loss. He was resting in his home when the accused scorched the building without knowing he was inside, his life was totally placed at verge of being burnt alive.
    

Starting point

26. Taking into account the guidelines and factors set out above, balancing with the sentencing tariff and the accused criminal culpability, it is my humble view that the appropriate starting point is 4 years’ imprisonment.
    

Mitigating factors

27. These are the mitigating factors for the accused person:-
    1. Early Guilty plea. The accused person has appeared and entered a guilty plea at the earliest opportunity during the Atori Court Circuit. He demonstrated genuine remorse and has accepted the consequence of his wrongs. His plea has reserves much of SIG’s money to pay for witnesses and other allowances should this matter proceeds to trial. The Court’s time is spared to deal with other genuinely contested matters.
    2. First Offender. The accused person is a first time offender. In his 27 years of existence he has never had a brush with the law until this case. I acknowledge that he is a person of good character before this matter.
    100. Cooperation with Police investigation. The accused person has been an instrumental person behind the quick progress of this matter. He has been assisting police with the investigation until he takes his plea. This must go to his favor.
         

Sentencing consideration

28. I give full credit to his guilty plea and remove 12 months’. I also deduct 3 months’ to consider his past criminal record and cooperation with the police during investigation. In total, 15 months’ is accordingly deducted from the head sentence.
    

Sentence remarks

29. Act of sorcery is a criminal offence and attracts serious penalty if found guilty. Thus, it must be clear that no one condones any act or practice of sorcery or black magic in our rural communities. While it is so, the law prohibits individual citizen to assume the power and react to those who are suspected of practicing sorcery. Everyone is presumed innocent until proven guilty.
    
30. No person is allowed to conduct violence, cruelty or ill-treatment against another on suspicion of sorcery. The route to channel it lawfully is available, hence, those who take the law into their own hands will find themselves journey-bound to court to face the vibrant wrath of law.
    
31. Our communities, churches and Courts have continue to emphasize on the need to revert to peaceful and lawful methods of settling disputes. This is the accepted way forward and lawfully acceptable approach in our society. Violence, fighting, damage of property and burning of houses will never resolve or end disputes, because two wrongs don’t make a right. The accused person must embed this sentiments for his own future good and benefit.
    
32. The People in Malaita Province and Solomon Islands as a whole must understand the seriousness of Arson charge that it is akin to taking the life of another. A house is one’s own palace or haven, for reason that it provides security and means of protection for the owner and it enables another to live peacefully and to be sheltered from rain, sun, wind and other danger and threats from animals and others. In this case, the victim’s home was simply taken away for no good reason and life was put to risk simply because of the accused ill-hearted act.
    
33. A sentence the Court will give will incorporate both personal and general deterrence, however, must not run in isolation but instead in conjunction with the principal of rehabilitation. So as to allow him to learn from this case and provide a turning point for him to rehabilitate and be a better person in the future or once he returns from custody.
    

Sentence Orders

1. I hereby sentence the accused Mr. Gordon Bitana to 33 months’ imprisonment or 2 years’ and 9 months’ imprisonment.
2. Sentence to commence from date of first remand.
3. Right of appeal applies within 14 days.
4. Order accordingly.

THE COURT

.............................................
MR. LEONARD. B. CHITE
Principal Magistrate
Malaita District Magistrates Court

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^[1] Contrary to section 200 of the Penal Code (Cap. 26)
^[2] [2019] SBMC 5
^[3] [2015] SBHC 117
^[4] [2017] SBMC 29
^[5] [2016] SBMC 23
^[6] Criminal appeal case no. 124 of 2008
^[7] [2017] SBMC 48

^[8] Criminal Case No. 21 of 2020