N2420

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 546 of 2003

THE STATE

-V-

HENNY WAMAHAU ILOMO

WEWAK: KANDAKASI, J.
2003: 24th April
1st May

CRIMINAL LAW – PRACTICE & PROCEDURE – Guilty to plea to charge of arson – Pre-sentence report recommending rebuilding of the houses destroyed and replacing contents lost – Sentence deferred to enable prisoner to commence taking the steps necessary toward rebuilding the buildings and contents destroyed in the fire – Subsequent report confirm steps taken to rebuild buildings and replace contents – Probation service and members of the Community willing to assist in supervision of rebuilding work and other terms and conditions of a sentence outside the prison system - Prisoner given suspended sentence on terms to rebuilding the buildings he destroyed and replace their contents and community work order for balance of suspended sentence - ss. 2, 3, 4, and 5 of Criminal Law (Compensation) Act – ss. 19 and 436 of the Criminal Code.

CRIMINAL LAW - SENTENCE – PRACTICE & PROCEDURE – Arson – guidelines recently suggested – Inappropriate to adopt and apply them as they have not yet been sufficiently published - s. 436 of the Criminal Code.

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal liability or penalty – No compensation order can be made unless a means assessment report is requested and it confirms prisoner having means to replace property lost or destroyed by the criminal conduct in question - Compensation ordered in terms of rebuilding and replacing contents lost as a consequence of the offence ordered – Sentence to be suspended on condition that the orders for rebuilding and replacement orders being met – ss.2, 3, 4 and 5 Criminal Law (Compensation) Act. 

CRIMINAL LAW - Sentence – Arson – Burning down of bush material dwelling house, kitchen and firewood shed - Offence committed in retaliation for suspected sorcery death caused to sister – No evidence to establish basis for suspecting sorcery - Guilty plea – Prisoner taking and prepared to take further steps to rebuild the buildings lost and replace contents lost in the fire – Means assessment and pre-sentence report support prisoner’s position and recommend non custodial sentence – First time offender – Expression of genuine remorse – 7 years suspended sentence on terms – ss.19 and 436 of the Criminal Code.

Cases Cited:
Public Prosecutor v. Don Hale (1998) SC564. 
The State v. Micky John Lausi (27/03/01) N2073.
The State v. Abel Airi (28/11/00) N2007.
The State v. Dobi Ao (No.2) (01/05/02) N2247.
The State v Otom Masa (20/12/00) N2021.
The State v. Andrew Yeskulu CR 1431 of 2002
The State v. Ipu Samuel Yomb [1992] PNGLR 261
Roger Jumbo and Aidan Awatan v. The State (26/03/97) SC516

Counsels:
Mr. M. Ruari for the State 
Mr. G. Korei for the Prisoner 

1st May 2003

KANDAKASI J:	You pleaded guilty to one charge of arson in that you burnt down a dwelling house and a kitchen and firewood shed on the 29th of July 2002, at Ambukanja, in the Yangoru District of this Province.

Following on from the first is the second reason.

Upon reading the depositions, which were admitted into evidence without any objection from you, I accepted your guilty plea and convicted you of the charge. I did that because, I found that there was sufficient evidence to support the charge and your guilty plea. Thereafter, I asked you to address me on sentence. In response to that, you expressed remorse for what you had done and asked for a suspended sentence or be placed on probation. You then informed me that you would be prepared to rebuild the buildings you had burnt down and replace their contents. You also informed the Court that you have 4 gardens of vanilla plants, 2 gardens of coffee and 6 gardens of cocoa. 

The State did not oppose a suspended sentence to enable you to rebuild the building providing all the building material required and replace the items that were in the buildings at the time of the offence and lost with the buildings. 

Given these, I considered it appropriate that I should call for a means assessment report as to what means you have to do all that you said you are prepared to do based on the assets or properties you claim to have. I also considered it necessary to call for a pre-sentence report to determine whether it is appropriate to impose upon you the kind of sentence you asked for. Accordingly, I asked for these two reports from the probation services in accordance with authorities such as Public Prosecutor v. Don Hale (1998) SC 564. This is particularly necessary to consider the appropriateness of a punishment outside the prison system. 

I have in fact imposed a good number of suspended sentences on terms based on the recommendations of pre-sentence reports: See for example The State v. Micky John Lausi (27/03/01) N2073. In so doing, I noted and I maintain the view that imposing a suspended sentence is not an exercise in leniency. But it is a form of punishment that has the ability to achieve rehabilitation, which is one of the aims of criminal sentencing. It also has the potential in appropriate cases, to serve, as a personal and general deterrence against other would be offenders. Persuaded by these considerations, I imposed wholly suspended sentences in The State v. Micky John Lausi (supra), The State v. Abel Airi (28/11/00) N2007 and The State v. Dobi Ao (N0.2) (01/05/02) N2247. I have done this only on the basis of well balance pre-sentence reports, representing and reflecting the views of the community on the kind of penalty that the respective offenders should receive.

In your case, I have before me the reports I have requested from the Probation Service. I sincerely express my gratitude to the Probation Service Officer here, Mr. Moses Galus, who has been able to furnish the report within the short time period he has been given.

The means assessment report confirms that you have in fact taken steps toward a reconstruction of the buildings you had burnt down. It also confirms that you have some cash crop, which you could sell and get some money. Then from the proceeds of any such sale, it is possible that you will purchase and replace the other properties or the contents of the buildings that the victims of your offence have lost. The report concludes with a recommendation that you be given a suspended sentence and be order to rebuild the buildings you burnt down within 3 to 6 months. 

It is settled law that the Court is not bound to accept and or follow the recommendations of a pre-sentence report. An example of an authority on this is The State v Otom Masa (20/12/00) N2021. This case also sets out some of the circumstances in which a Court can reject the recommendations of a pre-sentence report.

A decision whether or not the recommendations of a pre-sentence should be accepted is dependent on a number of factor, which play an important part in the whole criminal sentencing system. One such important factor is the particular facts and the circumstances in which the offence under consideration was committed. The nature and or the type of offence involved as well as the community’s response to the offence are also important considerations. The offender’s own personal background, his response to the consequence of the offence and his preparedness to rehabilitate is another relevant factor. A sentencing Court is duty bound to strike a balance between rehabilitating an offender and penalizing him for having committed the offence. I will consider each of these factors in the order in which they appear.

I start that process with a look at the particular facts and the circumstances in which you committed the offence. The relevant facts emerge from the District Court committal deposition, which was admitted into evidence with your consent. They are straightforward. They disclose that, between 8:00 pm and 10:00 pm on 29th December 2002, you went to an Anton Pandui Huanjowara’s house and went to his family’s dwelling house and banged on the door. At that time, Mr. Huanjowara’s wife, Maria and their 4 children were asleep in the house. Upon hearing you, Maria woke up and heard you say "my sister has died and in retaliation you (Maria and her children) will be burnt down". By that time, you had already set fire to one of their houses already which was already up in flames. Maria and her children managed to get out of the house. Soon after that, you set fire to the dwelling house and also set fire to any other house. The other two houses that were burnt down were used as a kitchen and firewood storage sheds respectively.

Maria and the children were afraid and ran away to a relative the same night and took safety there. Mr. Huanjowara was away that night at Wanjo village, West Coast Wewak. The family was not able to save any of their belongings from being burnt down. This include normal household goods such as lamps, radio and other items the total value of which is estimated to be K3,383.90 at the time of the offence. 

Maria reported the incident to the Police the next day. You were not arrested and charged for the offence until the 15th of January 2003. You freely admitted to committing the offence saying also that you did what you did in retaliation of your suspicion that Mr. Anton Pandui Haunjowara killed your sister by sorcery. But there is no evidence that forms the basis for your suspicion of sorcery by Mr. Haunjowara.

I had observed here in Wewak, on 24th April 2003 in The State v. Andrew Yeskulu CR 1431 of 2002, that the crime of arson is a common occurrence here in the East Sepik Province. In that context, I noted that the latest demonstration of that is the burning down of the Wewak District Courthouse. I also noted that, it is the careless destruction or damage to property such as public institutions, buildings and infrastructures that are seriously denying the progress of our nation. Given that, I further noted that, the society expects the Courts to sternly deal with offenders like you. Therefore Parliament after considering all things, prescribed a maximum penalty of life imprisonment under s. 436, subject to the Court’s sentencing discretion under s. 19 of the Criminal Code.

Then in the absence of any guidance from the Supreme Court judgement for arson cases I had regard to a number of National Court judgements, in particular The State v. Ipu Samuel Yomb [1992] PNGLR 261. Taking this and other cases as guides, I expressed the view that like any other offence, arson has its own categories and went on to list the categories as follows at page 12:

"1.	a dwelling house with people inside;
2.	a dwelling house without any occupants;
3.	public institutions such as schools, hospitals, or offices with occupants inside; 
4.	public institutions such as schools, hospitals, or offices without occupants inside; and
5.	a house wind or a garden house or a run down and deteriorated or incomplete structure.

Then of course other factors such as the type and value of the building, whether bush material, whether the offence is committed with premeditation with the aid of substances like kerosene or other such highly flammable substances like that would be relevant factors in aggravation. Similarly, a not guilty plea resulting in a conviction and or the offender having a prior conviction are factors in aggravation. At the same time, the opposite of these factors may operate in the offender’s mitigation."

Thereafter, I had regard to the kind of sentences that have been imposed to that and noted they were varied from wholly suspended sentences to 5 years, which have failed to deter others from committing this kind of offences. In that context, I noted that this province has a good number of arson cases pending on the list for trial. At the same time, I noted that there are many instances of people everywhere in the country with more frequency in the highlands provinces in association with tribal fights fearlessly and without hesitation burning down a lot of property both public and private. This I noted clearly, is an affront to progress just as armed robbery, murder and rape are. That is why Parliament has prescribed the maximum of life imprisonment. Despite that, I noted that it is the National Court that has imposed sentences well below life imprisonment, which fails to come closer to life imprisonment or correspond with the loss and suffering such an offence brings upon its victims.

Accordingly, I suggest that sentence for a case of arson falling in the first, second, third and fourth categories without any aggravating factor should start at a minimum of 10 years. In cases, where there are factors in aggravation, the sentence should be increased to terms beyond even up to the maximum prescribe of life imprisonment in the more serious cases. Then for cases falling in the last category without aggravation should start at 5 years. But where there are factors in aggravation, the sentence may go beyond that. I also said, in exceptional cases where there are very good mitigating factors with the support of a pre-sentence report, a sentence below what is recommended may be imposed.

Further, I expressed the view that:

"… once a person is found guilty of a crime, the onus is on him to show by appropriate evidence that he should not be given the maximum prescribed sentence. This follows from my view that the presumption of innocence under the Constitution applies only up to the point when guilt or innocence is decided against an accused person. For the protection is in terms of an accused person being "presumed innocent until proven guilty according to law." Where a prisoner fails to do that, it means he has no reason to expect a sentence other than the maximum."

In the end, I decided to impose a wholly suspended sentence of 7 years on a number of strict terms. In so doing, I noted that the prisoner burnt down a building that housed three elementary classrooms. There was no evidence of any of the students or the school doing anything against him. Even if they did, what the prisoner did was no justification for that. I also noted that schools, hospitals and other public institutions are built for the benefit of the whole community. So a commission of an offence against such properties amounts directly to an offence against the whole community. This makes the offence an aggravated one.

Another factor, I noted in aggravation was the fact that, the prisoner planned and executed the offence in the company of one other person. Not only that, he also used kerosene to assist him in accomplishing his plan. At the same time, I noted that the prisoner was a mature person. As such, he had reason to know and appreciate the consequences of his offence. 

The factors in his mitigation were that, he was a first time offender, the building was made out of bush material estimated to be at a value of a little over K800.00, plus teaching material which brought the total estimate of what was destroyed to a little over K1,000.00.

Secondly, he pleaded guilty to the charge, thereby saving the State more time and money in calling witnesses to establish his guilt. In furtherance of that, he had already taken steps to provide the material required for the reconstruction of the building. He was also prepared to provide his labour free of charge toward the reconstruction.

Thirdly, he expressed remorse and undertook to replace the teaching material that got destroyed in the fire. I also noted that he was prepared to provide supervised community work. His relatives whilst denouncing the offence, they were prepared to help the prisoner to rebuild the classroom building.

The prisoner in that case was also a married man with about 4 children. The report from the Probation Services supported his wishes as to how he wished to make it right with his community, especially its children who were the real victims of offence crime.

In your case, I note that you are a married man with 2 children and a subsistence style dweller. You are a first time offender and have pleaded guilty to the charge. In so doing, you saved the State substantial money that might have been mounted for a trial and save this Court a lot of time. I also note that, the houses you burnt down were all built out of bush material. Further, I note that you have taken steps to rebuild all that you have burnt down, including a purchase and replacement of the contents that were lost in the fire.

These factors must be contrasted against the fact that you committed a serious and prevalent offence. You burnt down three buildings, one of which was a dwelling house. Five people were sleeping in the dwelling house at the time when you set the houses on fire. They could have been killed in the fire, had it not been for their escaping from the burning houses. Contents in excess of K3,000.00 were lost in the fire.

You claim to have been actuated by a suspicion of sorcery by Mr.Haunjowara against your sister. But you did not take this any further by establishing the basis for holding that suspicion. I raise this aspect with your lawyer and I was informed that you had no direct evidence and acted only on hearsay evidence. As such you were not taking that point any further other than merely stating it.

The Supreme Court in Roger Jumbo and Aidan Awatan v. The State (26/03/97) SC516, stated the law in relation to a claim of acting under a suspicion of sorcery. The Supreme Court clearly stated that, whilst sorcery is not a complete defence, it can be a factor in mitigation. It can be a factor in mitigation if there is basis for holding such a suspicion. It also states that when the issue is raised, the Court must accord the accused every opportunity to make out that possible mitigating factor. I find the following part of the Supreme Court’s judgement instructive:

"The right of the accused must be no less with regard to circumstances of mitigation such as those claimed in the present case. The facts normally are within the knowledge of the accused alone. Nevertheless the Court must "within the bounds of reasonable possibility" accept the accused's version. The Court can reject the explanation if it passes the bounds of reasonable possibility, but we do not think it ought to take this course without giving the accused an opportunity to support his assertion by his oath and that of any other witnesses it wishes to call."

In your case, I was minded to give you the opportunity to establish your claim of sorcery. However on raising the matter with your lawyer, you decided not to raise it as a suspicion reasonably held as you acted only on the hearsay evidence of others.

In any case, I am of the view that even if you had a good basis to suspect sorcery against Mr. Haunjowara, that was no reason to take the law into your own hands and burn down three houses, one of which was a dwelling house housing 5 innocent people. Had they not waken up and get out of the house, you would have had them all killed in the fire. You disturbed them from sleep and have denied them the right to a home.

Mr. Haunjowara is now deceased and the widow with her children are left to fend for themselves. The Court asked the widow to indicate what kind of sentence you should receive. She stated clearly that her houses be rebuilt by you instead of you being sent to prison. During the period of deferment of your sentence, you have already commenced the reconstruction of the houses and are almost complete.

In all of the circumstances, I find your case falls in the serious category of arson cases with aggravation. In my view, these factors far outweigh the mitigating factors but for your guilty plea and you being a first time offender. I would therefore start with a sentence of 10 years as I suggested in the Andrew Yeskulu (supra) case. But because, that case was decided only last month here and in view of the mitigating factors, I will start with 7 years. I will suspend the whole of that sentence on the basis of the pre-sentence report on the following conditions:

1.	you provide all of the material required to rebuild all of the building you burnt down within 6 months from today and rebuild the three houses;

2.	you buy and replace all of the contents of the houses in close consultation with the police and Mrs. Haunjowara as to the items that where actually lost in the fire;

3.	you provide free labour from 8:00 am to 4:00 pm each day commencing tomorrow to Mr. Haunjowara’s family toward the rebuilding of their dwelling house, kitchen and firewood shed until the buildings are completed under the supervision of the Probation Service or its nominee who shall be your Village Court magistrate;

4.	upon the full completion of the reconstruction of the buildings, you provide 5 hours free physical labour every Monday to Wednesdays to a community school or any other public institution in the area in consultation with the community leader and the Probation Service or its nominee for the whole of the balance of your suspended sentence of 7 years;

5.	for the purposes of term 4, you will in consultation and with the endorsement of your village leaders and the probation service here in Wewak provide a detailed work and supervision schedule within one month for the Court’s endorsement;

6.	you remain indoors in your house in your village at Ambukanja, Yangoru between the hours of 6:00 p.m. and 6:00 a.m; 

7.	you do not leave your village except with leave of this Court to sell any of your cash crops in Wewak with the prior approval and or endorsement of the village leader, the probation officer or his nominee on such terms as they consider appropriate;

8.	you will allow for and permit Probation Services to visit your home on a regular basis to monitor your compliance of these terms and to make such recommendations, as they consider appropriate either for a variation or an implementation of these terms;

9.	the Probation Officer in Wewak shall attend on you each quarter and do a comprehensive review and report to this Court of your compliance of these terms;

10.	if for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence of 7 years as at the time of the breach in hard labour at the Boram CIS;

11.	you will be at liberty to apply for a review and or variation of any of these terms supported by appropriate evidence or material;

12.	you immediately enter into your own recognition to keep peace for the currency of your suspended sentence; 

13.	you accept that any member of your family or community will be at liberty to report to this Court of a failure to meet any of these conditions without any prior notice or warning to you; and

14.	the Police shall also be at liberty to ensure and supervise compliance of these terms at any time.

As I said in the Andrew Yeskulu (supra) case, I am of the view that this sentence is preferred here because of the fact that you have the means to rebuild the houses you had burnt down and replace their contents. I also consider it appropriate as sending you to prison will be a strain on the public purse and Mr. Huanjowara’s family will have to undergo the expenses of rebuilding their houses with no contribution from you. Further, I note that a sentence in these terms will better rehabilitate you with the involvement of your own community leaders and serve as a strong deterrent to you personally and to others in the community who might be inclined to committing similar offences. This sentence is also in line with what I have been saying in a good number of cases already such as in The State v. Dobi Ao (N0.2) (supra). In those cases, I have said that sentencing is a community responsibility and in appropriate cases, the Court should be ready to impose community-based sentences.
_____________________________________________________________________
Lawyers for the State:			The Public Prosecutor
Lawyers for the Accused:		The Public Solicitor