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State v Mais [2005] PGNC 142; N2811 (23 March 2005)

N2811

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 172 0F 2005

THE STATE

V

BART KIOHIN MAIS AND HENRY KEVI

BUKA: CANNINGS J
18, 23 MARCH 2005

SENTENCE

CRIMINAL LAW – indictable offence – Criminal Code, Subdivision VI.2.B, offences – Section 436, arson – sentence on plea of guilty – offenders burned down a dwelling house, acting on the belief that the owner of the house had killed a brother of one of the offenders in a fight – steps taken to ensure that no one was in the house – acting in group of others – no physical injury to any persons – isolated incident – offenders did not surrender – cooperated with police – no trouble caused with victim since the incident – tangible steps taken towards repairing the wrong – determination of maximum penalty – expression of remorse – first offenders – youthful offender – limited educational background – starting point for head sentence –identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – evidence received from welfare officer – sentence of two years – all of which shall be suspended on satisfaction of prescribed conditions.

Cases cited:
The State v Andrew Yeskulu (2003) N2410
The State v Enni Matthew and Others (No 2) (2003) N2563
The State v Henny Wamahau Ilomo (2003) N2420
The State v Ipu Samuel Yomb [1992] PNGLR 261
The State v Prodie Akoi (2004) N2584.
The State v Robin Warren and Others (No 2) (2003) N2418

Counsel:
L Rangan for the State
L Siminji for the co-accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for two men (the co-accused) who pleaded guilty to a charge of arson.

BACKGROUND

Incident

The incident giving rise to the charge took place at Malasang No 3, Buka Island, Bougainville, on 1 January 2001.

Indictment

On 18 March 2005 the co-accused were brought before the National Court and faced the following indictment:

Bart Kiohin Mais and Henry Kevi, both of Malasang No 3, Buka Island, Papua New Guinea, stand charged that they ... on the 1st day of January 2001 at Malasang ... wilfully and unlawfully set fire to a building.

The indictment was presented under Section 436(a) of the Criminal Code.

FACTS

Allegations

The following allegations were put to the co-accused for the purpose of obtaining a plea.

On 1 January 2001 the co-accused were at their village at Malasang No 3. They heard that a man called Charles Matis had stabbed the brother of the second co-accused, Henry Kevi, with a knife, at the brother’s residence. In retaliation, the co-accused, with several other persons, went to Charles Matis’s house, where he lived with his family. The first co-accused was carrying a plastic container of petrol. When the group arrived at the residence, he poured the petrol around the house. Another member of the group then set fire to the petrol and the house was set on fire, completely destroying it. Both the co-accused were involved in the burning down of the house. They acted intentionally and there was no excuse in law for what they did.

Conviction

The co-accused each pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted them. They are now referred to as the offenders.

ANTECEDENTS

Neither offender has any prior conviction.

ALLOCUTUS

I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of each response follows.

Bart Kiohin Mais

We did this because Charles Matis cut my uncle. We thought he was already dead. After it happened the chiefs made an agreement to have this thing sorted out in the village. We rebuilt the house, as we agreed to do with the chiefs. I am very sorry for what happened. This is my first time to be in court.

Henry Kevi

We came to burn down the house as we heard that Charles had cut my brother. We thought he was already dead. Therefore, we burned down Charles’ house. After it happened the chiefs made an agreement to have this thing sorted out in the village. We had to rebuild the house. Charles was happy when he heard that we were going to rebuild his house. After we rebuilt it, we have never had any more problems with Charles. This is my first time to be in trouble with the law. I am sorry for what I did.

PRE-SENTENCE REPORT

A pre-sentence report was prepared by the provincial welfare officer, Ms Cicely Kekun. She visited the village and interviewed the co-accused. She also interviewed the person, Charles Matis Tapi, whose house was burned down, and the chief of Malasang No 3, Leo Kirama. She also gave sworn evidence on her inquiries. Her findings and recommendations are:

• The first co-accused, Bart Kiohin Mais, is 23 years old, married with one child, educated to grade 10. The second co-accused, Henry Kevi, is 36 years old, married, educated to grade 6.
  
• The co-accused built a new house for Charles, which was much better than the house that they burned down.
  
• Another problem had arisen since they built the new house. Charles had an argument with his brothers – not the co-accused – and destroyed the new house.
  
• Charles would like the co-accused to rebuild the house, again, but he will accept what the court decides.
  
• The co-accused and Charles are now living harmoniously in the village. Charles has no hard feelings towards them.
  
• The matter is being settled in the customary way in the village. A reconciliation feast is still to be held, at which there will be an exchange of goods and money. This has been put on hold while the court proceedings are continuing.
  
• The co-accused should be placed on probation.
  

CLARIFICATION OF FACTUAL ISSUES

During the course of the proceedings I asked counsel if there was agreement about some issues of fact which were not brought out clearly in the summary of facts, to which the offenders pleaded guilty, and which would have an effect on the sentence to be imposed. These related to whether there was anybody in the house when it was burned down and whether the co-accused took any steps to find that out.

Counsel agreed, and I accept, that:

• there was nobody in the house when it was burned down by the co-accused; and
  
• the co-accused knew that there was nobody in the house, as they had taken steps immediately beforehand to confirm that nobody was inside.
  

SUBMISSIONS BY DEFENCE COUNSEL

Mr Siminji referred to a number of mitigating factors. The offenders have pleaded guilty, saving the trouble and expense of a trial. They admitted to the police at the outset what they had done. They have made genuine attempts to repair the damage that they caused. They have reconciled with the victim. There were elements of de facto provocation for what they did. A non-custodial sentence is appropriate.

SUBMISSIONS BY THE STATE

Mr Rangan submitted that the burning down of a dwelling house was a very serious offence. He suggested that the court apply the sentencing criteria in The State v Ipu Samuel Yomb [1992] PNGLR 261, National Court, Doherty J.

RELEVANT LAW

Section 436

Section 436 (arson) of the Criminal Code states:

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.

Therefore the offenders are liable to life imprisonment.

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

• a shorter term of imprisonment may be imposed (Section 19(1)(a)); or
  
• a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the offender can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or
  
• the offender may be given a ‘good behaviour bond’ (Section 19(1)(d)); or
  
• the offender can be discharged and the sentence postponed (Section 19(1)(f)); or
  
• the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).
  

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the appropriate head sentence, in terms of years?
  
• step 2: should all or part of the sentence be suspended?
  
• step 3: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

Approach

In setting an appropriate head sentence I will take this approach:

• first, I will identify an appropriate starting point or reference point;
  
• secondly, I will set out the considerations that should be taken into account in deciding what sentence to impose; and
  
• thirdly, I will apply those considerations to the facts of the present case.
  

Starting point

Judges often refer to a starting point when they are determining a sentence. By that they mean a reference point – a sentence in a previous case – against which the case being dealt with can be assessed. The judge assesses whether the case being deal with is more, or less, serious than the starting point case. If it is, to what extent is it more serious or less serious?

The Supreme Court has yet to lay down sentencing guidelines for arson cases. However in a series of recent National Court decisions, mainly decided in Wewak, Kandakasi J has given the issue careful and considered attention. In The State v Andrew Yeskulu (2003) N2410, his Honour stated:

There is no Supreme Court judgement on arson cases, which might provide us with some guidance as to how an appropriate sentence in an arson case can be arrived at. There are, however, a number of National Court judgements. Out of all of these judgements the case of The State v Ipu Samuel Yomb [1992] PNGLR 261 is viewed as providing some guidance. The Court in that case took 6 factors into account. These are:

1. the deliberate or very reckless putting of lives at risk;

2. the deliberate pouring of kerosene and setting fire to the roof, knowing that people were inside;
3. the deliberate locking of the door, to prevent any escape by any of the occupants;

4. the deliberate cold-blooded planning of the offence;

5. the value of the house and its contents to the occupants; and

6. the complete lack of provocation offered to the defendant by the occupants and their children.
   

The Court started with a head sentence of 7 years. It then had that reduced to 5 years on account of the offender being a person under the age of 20, he had no prior conviction and that he pleaded guilty. These and other cases subsequent to it highlight the fact that deliberately and wilfully setting fire to a dwelling house is an aggravating factor. But even more serious is when the building or structure that is being set on fire has people inside.

In my view, just as all the other offences have their own categories, arson cases have their own categories. Without limiting the list, I list below the kind of category a case of arson may fall under:

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.

I am of the view that the kind of sentences that have been imposed to date, from wholly suspended sentences to 5 years to date have failed to deter others from committing this kind of offences. In this province alone there are a good number of arson cases pending on the list for trial. 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 public institutions and dwelling houses. The sentences therefore have to be seriously increased with a view to deterring other would be offenders. Crimes such as arson are an affront to progress just as the other serious crimes such as rape, armed robbery and or murder are. That is why Parliament has prescribed the maximum of life imprisonment. But Courts have seen fit to impose sentences well below life imprisonment. I simply do not know how a mere 4 years or 5 years or worse still a wholly suspended sentence compares or comes anywhere closer to life imprisonment and or the loss and suffering such an offence brings upon its victims.

I therefore consider that a 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. Where there are factors in aggravation, the sentence should be increased to terms beyond that up to the maximum prescribed of life imprisonment in the more serious cases. A sentence for a case of arson falling in the last category should start at 5 years, where there are no factors in aggravation. Where there are factors in aggravation, the sentence may go beyond that. Of course, 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.

In expressing these views, I maintain 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 demonstrate a case for leniency, he has no reason to expect a sentence other than the maximum.

Kandakasi J has since applied those sentencing guidelines in The State v Robin Warren and Others (No 2) (2003) N2418; The State v Henny Wamahau Ilomo (2003) N2420; The State v Enni Matthew and Others (No 2) (2003) N2563; and The State v Prodie Akoi (2004) N2584.

I agree generally with the principles set out by Kandakasi J and will adopt a starting point for this case, the offence being the burning down of a dwelling house, of ten years imprisonment.

Relevant considerations

I will now set out the things I consider should be taken into account when determining whether to increase or decrease the sentence or leave it at the starting point. In arriving at this list I have paid close attention to the factors outlined by Kandakasi J in the above cases and by Doherty J in Yomb’s case (cited above).

1. Did the offender cause damage of a 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 other 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, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did?
    
11. Has the offender not caused further trouble since the incident?
    
12. Has the offender pleaded guilty?
    
13. Has the offender genuinely expressed remorse?
    
14. Is this his first offence?
    
15. Can the offender be regarded as a youthful offender?
    
16. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence?
    

Rationale

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be at or near the starting point.

However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

Application of considerations

The first offender, Bart Kiohin Mais, was the one who poured the petrol around the house. It seems that he had a greater involvement than the second offender, Henry Kevi, did. However, neither counsel made an issue of this, so I sentence them as if they each had an equal involvement. I apply the above considerations as follows:

1. No the damage was not of a low value. The house had several rooms, wooden beams and a corrugated iron roof. There were also household goods and clothes destroyed.
   
2. No the owner of the house and his family were directly affected.
   
3. Yes the offenders did not put lives at risk. They knew that there was nobody inside the house.
   
4. No there was a group of people involved.
   
5. Yes the offence was not planned in a deliberate and calculated manner. It was a spontaneous attack.
   
6. Yes there was an element of provocation, as the offenders had heard that the owner of the house had attacked and stabbed one of the offenders’ brothers and killed him. In fact, as it turned out, the story was partly true. The owner of the house did stab the offenders’ brother. But the brother was not killed.
   
7. Yes it was an isolated incident.
   
8. No the offenders did not give themselves up after the incident.
   
9. Yes the offenders cooperated with the police in their investigations.
   
10. Yes the offenders have done something tangible to repair their wrongs. They have built the owner a new house – a better one than the one they burned down. The owner has subsequently pulled it down, owing to a dispute with somebody else. This is not the fault of the offenders. I am satisfied that they have done the right thing. The offenders have also showed that they are prepared to submit to a village-based resolution of the dispute. They are prepared to continue the reconciliation process that has been put in place by the village chief. They are now living harmoniously with the victim of their crime.
    
11. Yes they have not caused further trouble since the incident.
    
12. Yes each has pleaded guilty.
    
13. Yes the offenders expressed remorse. They appreciate that they did the wrong thing and are sorry about what happened.
    
14. Yes this the first offence for each of them.
    
15. No neither offender can be regarded as a youthful offender.
    
16. No there are no other circumstances of the incident or the offenders that warrant mitigation of the head sentence.
    

Conclusion

There are many mitigating factors in this case. The head sentence must be considerably less than ten years. I regard consideration Nos 1 and 2 as strong aggravating factors. However there are many strong mitigating factors in Nos 3, 5, 6, 9, 10, 11, 12, 13 and 14. The other factors are not significantly aggravating (4, 8, 15 and 16) or not significantly mitigating (7).

I have weighed all the above considerations carefully and fix a head sentence of two years imprisonment for each offender.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

I am encouraged by the way in which the local community has become involved in resolving this matter and there is a pre-sentence report by the provincial welfare officer which recommends a probationary sentence. The whole of the sentence will therefore be suspended, subject to certain conditions.

STEP 3 - WHAT CONDITIONS SHOULD BE IMPOSED?

The seriousness of the offence requires the imposition of strict conditions, as follows:

1. Immediately after the handing down of this decision, the offenders, Bart Kiohin and Henry Kevi, shall meet with and attend upon the Provincial Welfare Officer to negotiate a detailed plan of action for the service of their period of probation, which will be two years. This plan must include at least six hours community work for each week of the probation period, eg providing cleaning services at the church in the village or assisting at the local aid post or health clinic. This will be unpaid and must be done outside the offenders’ normal working hours. The plan of action shall nominate a responsible person to verify that work has been done.
   
2. The Provincial Welfare Officer shall within one month after today file that detailed plan of action with the Clerk of the Court in Buka.
   
3. The Clerk of the Court shall then forward copies of that plan of action to the presiding Judge and to the lawyers involved in this case.
   
4. The presiding Judge shall consider the detailed plan of action, then notify the Provincial Welfare Officer and the lawyers involved in this case whether that plan of action is acceptable. That will be done within 14 days after receiving it. If it is not acceptable to the Court, then the prison sentence will crystallise, which means that the offenders will have to go to prison.
   
5. There shall be a probation report submitted by the Provincial Welfare Officer to the National Court every three months after today.
   
6. The offenders shall refrain from consuming alcohol for the whole of the period of probation.
   
7. The offenders shall not leave Papua New Guinea without the leave of the National Court. If there is to be an application for leave it shall be submitted through the Provincial Welfare Officer.
   

SENTENCE

The Court makes the following order:

1. Bart Kiohin Mais and Henry Kevi, having been convicted of the crime of arson, are each sentenced to two years imprisonment in hard labour, all of which is suspended subject to compliance with seven prescribed conditions.
   
2. For the avoidance of doubt there shall be deducted from the term of imprisonment any period in custody that the offenders has each already spent in relation to this offence.
   

Sentenced accordingly.
______________________________________________________

Lawyer for the State : Public Prosecutor
Lawyer for the co-accused : Public Solicitor