N3944
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 286 OF 2007

THE STATE

V

WAI KIKOB & GALAU HAGUI

Madang: Cannings J
2007: 16 October;
2008: 15 February

SENTENCE

CRIMINAL LAW – sentence – arson – Criminal Code, Section 436 – offenders acted with others – set fire to and destroyed bush material houses and contents – motivated by belief that homeowners used sorcery to make their sister sick – guilty pleas – sentences of 5 years and 8 years.

Two young men pleaded guilty to arson. They acted in concert to burn down a dwelling house and kitchen house belonging to a person they suspected of making their sister sick through sorcery. Then one of them burned down two other dwelling houses and another kitchen house, for the same reason.

Held:

(1)	When sentencing multiple offenders for multiple offences, the court should arrive at a notional sentence for each offender, for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

(2)	The following notional sentences were passed:

•	offender No 1: count 1, 5 years + count 2, 2 years = 7 years.

•	offender No 2: count 1, 5 years + count 2, 2 years + count 3, 5 years + count 4, 2 years + count 5, 2 years = 19 years.

(3)	For offender No 1, the offences were part of a single transaction and therefore the sentences will be served concurrently.

(4)	For offender No 2, counts 1 and 2 will be served concurrently; counts 3 and 4 will be served concurrently with each other, and cumulatively to counts 1 and 2, and 5.

(5)	The totality principle requires that the total sentence for offender No 2 be reduced, to avoid imposition of a sentence disproportionate to the totality of the criminal conduct.

(6)	Accordingly the court imposed total head sentences of 5 years for offender No 1 and 8 years for offender No 2.

(7)	The sentences were fully suspended subject to conditions including payment of compensation to all victims, within six months.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271
Kwayawako and Five Others v The State [1990] PNGLR 6
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v David Kondave CR 1450/2006, 11.10.07
The State v Kuru Bisok & Gahu Kuru CR 42 + 43/2007, 11.10.07
Tom Longman Yaul v The State (2005) SC803

SENTENCES

This was a judgment on sentence for two offenders convicted of arson.

Counsel

M Ruarri, for the State
B Tabai, for the offenders

15 February, 2008 

1. CANNINGS J: This is a decision on sentence for two young men –Wai Kikob and Galau Hagui – from Garim village, Madang Province who pleaded guilty to arson. They acted in concert to burn down a dwelling house and kitchen house belonging to a person they suspected of making their sister sick through sorcery. In addition, Galau Hagui burned down two other dwelling houses and another kitchen house, for the same reason.

2. The incidents took place at their village between 2.00 and 3.00 pm on 2 March 2006. They joined with other villagers, armed with bushknives, axes and slingshots, and went first to a house belonging to Gilas Mamat. Gilas's son, Michael, was there but they chased him away, then burned down Gilas's dwelling house and kitchen house, causing damage and losses to the value of K4,100.00.

3. After that, Galau went to a house belonging to two brothers, Danny Abui and Mafeu Abui. He joined with others in burning down the brothers' dwelling house and kitchen house, causing damage and losses to the value of K1,200.00. Then he went to the house belonging to Robert Abui Mamat, burned it down and caused damage and losses to the value of K2,700.00.

4. Wai Kikob has been convicted of and is to be sentenced for two counts of arson:

•	count 1 – dwelling house of Gilas Mamat; and

•	count 2 – kitchen house of Gilas Mamat.

5. Galau Hagui has been convicted of and is to be sentenced for five counts of arson:

•	count 1 – dwelling house of Gilas Mamat;

•	count 2 – kitchen house of Gilas Mamat;

•	count 3 – dwelling house of Danny and Mafeu Abui;

•	count 4 – kitchen house of Danny and Mafeu Abui;

•	count 5 – dwelling house of Robert Abui Mamat.

ANTECEDENTS

6. Neither offender has any prior convictions.

ALLOCUTUS

7. 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.

Wai Kikob: I want to say sorry for what I have done. This is my first time to be in such trouble. I believed that they used sorcery to make our sister sick. That is why I did what I did. I ask the court for mercy.

Galai Hagui: I want to say sorry for what I have done. I believed that my sister became sick through sorcery, that's why I did what I did. I ask the court for mercy.

OTHER MATTERS OF FACT

8. As the offenders have pleaded guilty they will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06).

9. It is clear that both offenders co-operated with the police and made admissions when interviewed a few days after the incidents.

PERSONAL PARTICULARS

10. Wai Kikob is 19 years old, single and educated to grade 7. He left school in 2005 and has been a villager ever since.

11. Galau Hagui is 21 years old, single and educated to grade 8. He worked for two years with Bismarck Maritime and is now a villager.

SUBMISSIONS BY DEFENCE COUNSEL

12. Mr Tabai highlighted the guilty pleas and argued that the offences were not in the worst category as the houses were unoccupied at the time the offenders set fire to them and no one was in danger of being killed. The offenders had a genuine belief that the victims had used sorcery to make their sister sick. A total sentence in the range of four to six years imprisonment would be appropriate.

SUBMISSIONS BY THE STATE

13. Mr Ruarri submitted that this was a serious case of arson. The offenders took the law into their own hands and custodial sentences should be imposed. Several houses were burned down in the raid and personal belongings were lost.

DECISION MAKING PROCESS

14. To determine the appropriate penalty I will adopt the following decision making process:
 
•	step 1: what is the maximum penalty?

•	step 2: what is a proper starting point?

•	step 3: what sentences have been imposed for equivalent offences?

•	step 4: what is the head sentence for each offender for each offence? 

•	step 5: should the sentences be served concurrently or cumulatively?

•	step 6: what is the effect of the totality principle?

•	step 7: should the pre-sentence periods in custody be deducted?

•	step 8: should all or part of the sentences be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

15. The offenders have been convicted of arson under Section 436(a) of the Criminal Code. The maximum penalty is life imprisonment. The court has discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

16. As I have said in a number of arson cases, the starting point for sentencing for the serious offence of burning down a dwelling house should be ten years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED?

17. Before I fix a sentence, I will consider sentences I have handed down recently in other arson cases in Madang Province. These cases are shown in the following table.

TABLE 1: NATIONAL COURT SENTENCES FOR ARSON, 
MADANG PROVINCE, CANNINGS J

No	Case	Details	Sentence	
1	The State v 
David Kondave 
CR 1450/2006, 11.10.07	Guilty plea – offender burned down the house of a person in his village he suspected of killing his brother through sorcery – semi-permanent house – properties inside house also destroyed – total damage bill K8,000.00.	6 years
	
2	The State v Kuru Bisok & Gahu Kuru 
CR 42 + 43/2007, 11.10.07	Guilty pleas – offenders, a father and son, joined with others in burning down the bush material house of a person whom they believed had built his house on their land.	6 years,
4 years

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENDER FOR EACH OFFENCE?

18. When sentencing multiple offenders for multiple offences, the court should arrive at a notional head sentence for each offender, for each offence, before determining whether the sentences should be served cumulatively or concurrently, then applying the totality principle and deciding whether to suspend any part of the sentences.

19. The offenders had an equal level of involvement in the offences of which they were both convicted (counts 1 and 2) and their personal circumstances are similar. Therefore it is appropriate to impose the same sentences for those offences. Galau Hagui will, in addition, be given notional sentences for counts 3, 4 and 5.

Count No 1: setting fire to Gilas Mamat's dwelling house 

20. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

21. Three sorts of considerations are listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 13 focus on what the offenders have done since the incident and how they have conducted themselves. Numbers 14 to 16 look at the personal circumstances of the offenders and give an opportunity to take into account any other factors not previously considered.

1 Did the offenders cause damage of a relatively low value? No, a person's home is their "castle" – whether it is a mansion on Touaguba Hill in Port Moresby or a bush material house in a village in Madang. The Supreme Court recognised in Gimble v The State [1988-89] PNGLR 271 that any crime that interferes with the peace or privacy of a person's home is very serious. Whatever its economic value, a person's home is sacred.

2 Was there no person or class of persons directly affected by the actions of the offenders? No, a man and his family were directly affected.

3 Did the offenders not put lives at risk? Yes, no one was in the house when it was burned.

4 Was there only one offender? No.

5 Did the offenders not plan the offence in a deliberate and calculated manner? Yes, it was a spur of the moment thing.

6 Did the owner of the property or any other person provoke the offenders in 'the non-legal sense'? Neutral.

7 Was it an isolated incident? Yes.

8 Did the offenders give themselves up after the incident? No.

9 Did the offenders cooperate with the police in their investigations? Yes.

10 Have the offenders done anything tangible towards repairing their wrong, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what they did? No.

11 Have the offenders not caused further trouble since the incident? Yes.

12 Have the offenders pleaded guilty? Yes.

13 Have the offenders genuinely expressed remorse? Neutral. They said sorry, but not with any commitment or force.

14 Is this the first offence? Yes.

15 Can they be regarded as youthful offenders? Yes.

16 Are there any other circumstances of the incident or the offenders that warrant mitigation of the head sentence? Yes. The genuine belief in sorcery (Kwayawako and Five Others v The State [1990] PNGLR 6).

Recap

22. The mitigating factors are:

•	No 3 – lives not at risk;
•	No 5 – offence not planned;
•	No 7 – isolated incident;
•	No 9 – co-operated with police;
•	No 11 – no further trouble;
•	No 12 – pleaded guilty;
•	No 14 – first-time offenders;
•	No 15 – youthful offenders;
•	No 16 – favourable pre-sentence report.

23. Aggravating factors are:

•	No 1 – damage of high value;
•	No 2 – a man and his family were directly affected;
•	No 4 – group raid;
•	No 8 – did not give themselves up;
•	No 10 – no reconciliation.

24. After weighing all these factors (nine mitigating versus five aggravating) and comparing this case with other recent arson cases, a head sentence below the starting point of ten years is warranted. I therefore impose a head sentence of five years imprisonment.

Count No 2: setting fire to Gilas Mamat's kitchen house 

25. Destroying someone's kitchen house is a less serious matter than destroying their home. I impose a head sentence of two years.

Count No 3: setting fire to Danny and Mafeu Abui's dwelling house 

26. Though this was a bush material house with a lower value than Gilas Mamat's house in all other respects the circumstances of the offence are the same. I will impose the same sentence: five years.

Count No 4: setting fire to Danny and Mafeu Abui's kitchen house

27. I will impose the same sentence as for count 2: two years.

Count No 5: setting fire to Robert Abui Mamat's dwelling house 

28. I will impose the same sentence as for counts 1 and 3: five years.

Summary

29. The total potential sentence each offender is facing is:

•	Wai Kikob: 5 years + 2 years = 7 years.

•	Galau Hagui: 5 years + 2 years + 5 years + 2 years + 5 years = 19 years.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

30. I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together).

31. In Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 the Supreme Court held that in deciding whether sentences should be made concurrent or cumulative the following principles apply:

(i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii) Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii) When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

Wai Kikob

32. The offences against Gilas Mamat were part of a single transaction and therefore the sentences will be served concurrently. His total sentence, subject to application of the totality principle, is five years imprisonment.

Galau Hagui

33. Counts 1 and 2 were the same as for Wai Kikob and will be served concurrently, ie five years. Counts 3 and 4 – the offences against Danny and Mafeu Abui – were part of a single transaction and will be served concurrently with each other, ie five years; and cumulatively to counts 1 and 2, and 5. His total sentence, subject to application of the totality principle, is: 5 years + 5 years + 5 years = 15 years imprisonment.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

34. I now look at the total sentence each offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence.

Wai Kikob

35. Five years imprisonment is not a crushing sentence for the two offences of which he has been convicted. No reduction is warranted.

Galau Hagui

36. I consider that 15 years would be excessive. Having regard to all the circumstances, especially the reasons for the commission of these offences, I impose a total head sentence of eight years imprisonment apportioned as follows: count 1 (2 years, 4 months); count 2 (6 months); count 3 (2 years, 4 months); count 4 (6 months); count 5 (2 years, 4 months).

STEP 7: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

37. The court has not been informed of any pre-sentence periods in custody so there is nothing to deduct.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

38. Sections 19(1)(f) and (6) of the Criminal Code allow the National Court to suspend all or part of a sentence, provided that the offender enters into a recognisance (a pledge) to comply with conditions set by the Court. In most arson cases, I have suspended the sentences on condition that the offenders make restitution and/or pay compensation to the victims within a certain period. In some cases the offenders have been unable to comply with the conditions and have been committed to custody to serve the rest of their sentences.

39. The amount of compensation is meant to reflect not only the economic value of the house that has been destroyed but also the fact that it is somebody's home. The victims must be compensated for the trauma, distress and inconvenience they suffer when their home is burned down.

40. In the present case I have decided to suspend the sentences, to be consistent with previous cases, on the following conditions:

(a)	(i) Wai Kikob must within six months after the date of sentence pay cash compensation of K2,500.00 to Gilas Mamat and participate in a reconciliation ceremony supervised by the Village Court and witnessed by the Probation Officer; 

(ii) Galau Hagui must within six months after the date of sentence pay cash compensation of: K2,500.00 to Gilas Mamat, K1,500.00 to Danny and Mafeu Abui and K3,000.00 to Robert Abui Mamat and participate in a reconciliation ceremony supervised by the Village Court and witnessed by the Probation Officer;

(b)	must attend the first sittings of the National Court at Madang after 15 August 2008, to demonstrate compliance with condition (a);

(c)	must reside at the village and nowhere else except with the written approval of the National Court;

(d)	must not leave Madang Province without the written approval of the National Court;

(e)	must perform at least six hours unpaid community work each week at each of the offender's local church under the supervision of the church;

(f)	must attend church every weekend for service and worship;

(g)	must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;

(h)	must not consume alcohol or drugs;

(i)	must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victims and their families;

(j)	must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;

(k)	if any one of the offenders breach one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

41. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

42. Wai Kikob, having been convicted of two counts of arson, is sentenced as follows:

Length of sentence imposed	5 years	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	5 years	
Amount of sentence suspended	5 years	
Time to be served in custody	Nil – subject to compliance with conditions of suspended sentence	

43. Galau Hagui, having been convicted of five counts of arson, is sentenced as follows:

Length of sentence imposed	8 years	
Pre-sentence period to be deducted	Nil 	
Resultant length of sentence to be served	8 years	
Amount of sentence suspended	8 years	
Time to be served in custody	Nil – subject to compliance with conditions of suspended sentence	

Sentenced accordingly.

___________________________
Public Prosecutor: Lawyer for the State
Bilding Tabai Lawyers: Lawyers for the offenders