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State v Balu [2011] PGNC 97; N4362 (3 August 2011)

N4362

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR. NO. 661 OF 2008,
CR NO.300 OF 2010
&
CR. NO. 261 OF 2011

THE STATE

V

MATTHEW BALU & BERNARD KAVANAMUR BALU

Kokopo: Maliku AJ
2011: .07th, 08th, 09th, 15th, 28th, July& 03rd August

CRIMINAL LAW - Attempted Murder – s. 304 - Arson – s 436
Wilful Damage- s 444

CRIMINAL LAW - Attempted murder – Sentence after a finding of guilty – sentencing principles – Matters for consideration- defendants first offenders - Arson – Sentencing after a finding of guilty – sentencing principles – Matters for consideration – defendants – first offenders - Wilful Damage – Sentencing after a finding of guilty – sentencing principles – Matters for consideration - defendants – first offenders -Whether worse type case – prescribed maximum penalties reserved for worse type case – Custodial Sentences Appropriate.

Cases cited:

Tremellan –v-The Queen [1973] PNGLR 116
Goli Golu-v- The State [1979] PNGLR 653
Acting Public Prosecutor-v- Kanis Haha [1981] PNGLR 205
The State-v- Sydney Kerua & Ors [1985] PNGLR 85
Gimble-v- The State [1988-89] PNGLR 271
Emil Kongian and 7ors- v- The State (2007) SC928
The State –v –Frank Johnston Murray William & Moses (2004) N2586
The State-v- James Wakis (2008) N3426
The State-v- Michael Waragu (2007) N3265
The State-v- Ipu Samuel Yomb [1992] PNGLR 26

Counsels:

Mr N. Miviri and Mr Kuvi, for the State
Mr N. Motuwe, for the defendants

SENTENCE

3rd August, 2011

1. MALIKU, AJ: The defendant Matthew Balu and Bernard Kavanamur

Balu were each and severally charged with seven counts contravening certain sections of the Criminal Code Act. I have set out each charge below: The State had also invoked Sections 7 and 8 of the Criminal Code Act.

(i) Charge One:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally wilfully and unlawfully set fire to a dwelling house belonging to Peter Tanel on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 436(a) of the Criminal Code Act

(ii) Charge Two:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally wilfully and unlawfully damaged water drums, cups, pots, fruit plants, betel nuts, cocoa plants and a dwelling house belonging to Julius Anton, Thomas Tue and others on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 444 of the Criminal Code Act.

(iii) Charge Three:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally unlawfully assaulted Julie Kavanamur on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening section 335 of the Criminal Code Act.

(iv) Charge Four:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally had unlawfully assaulted Martin Tiniu on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 335 of the Criminal Code Act.

(v) Charge Five:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Collin Ilde on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, there by contravening Section 304 of the Criminal Code Act.

(vi) Charge Six:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Rose Alir on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 304 of the Criminal Code Act.

(vii) Charge Seven:

State alleges that defendant Matthew Balu and Bernard Kavanamur Balu each and severally attempted to unlawfully kill Thelma Ansila Thomas Buluram on the 24th February 2007 at Palnakaur village, Kokopo District, East New Britain Province, thereby contravening Section 304 of the Criminal Code Act.

2. The defendants pleaded not guilty to the seven charges, however during the trial and at the end of the prosecution case they were discharged from Charges 3 and 4 and were found guilty and convicted of Charges 1, 2, 5, 6 and 7 at the end of the trial.
   

Brief Fact

3. That on the 24th of February 2007 at Palnakaur village, Toma Area, East New Britain Province the defendants each and severally took part in a fight with other perpetrators, namely Martin, Raymond and Albert Girar who are still at large and Peter Tanel and his relatives.
   
4. It was a retaliatory fight by the defendants and the perpetrators who are still at large after Peter Tanel cut Martin - a perpetrator still at large with a bush knife in the early morning of Saturday the 24th of February 2007.
   
5. The cutting of Martin with a bush knife by Peter Tanel was a flow on from a fight which took place on Saturday the 23rd of February 2007 after a bride price ceremony was over in which Peter Tanel was badly assaulted by drunken men which included Martin, Raymond, Albert Girar and the two defendants. Evidence also shows that a large amount of alcohol was consumed during the bride price ceremony.
   
6. The evidence shows that during the fight on the 24th of February the defendants aided and abetted the other perpetrators by shouting "kilim ol" and "paitim ol" towards Peter Tanel and his relatives namely Collin Ilde Jerry, Rose Alir and Thelma Ansila, Julius Anton and Thomas Tue while running towards Thomas Tue's house while being very angry and aggressive.
   
7. During the fight on Saturday the 24th of February Collin Ilde Jerry was cut on her left hand with a bush knife, Thelma Ansila was cut with a bush knife at the back of her neck. Rose Alir received severe and serious injuries from being hit with a piece of plank on the head and around the ear. Thelma Ansila was cut with a bush knife at the back of her neck. The three victims were admitted for treatment at Vunapope Hospital.
   
8. The fight also led to a house belonging to Peter Tanel set on fire and was completely destroyed, and a house each owned by Julius Anton and Thomas Tue were damaged and other properties alleged in the indictment were destroyed.
   

Allocutus

9. When the Court administered the allocates of each defendant pursuant to section 593 of the Criminal Code Act which was carefully explained to them, they said that their lawyer will speak on their behalf later.
   

Antecedents

10. Mr Kuvi for State tendered the defendant's antecedents which included what I have set out below.
    

(i) Background - Matthew Balu:

• - Born at Vunapope General Hospital, date of birth not known.
  
• - Defendant comes from Bitagalip village.
  
• - Baptized Catholic Church member
  
• - Attended Kabaleo Primary School, completed Grade 8 in 1998.
  
• - Attended Raval Vocational Centre in 2001and obtained a certificate in plumbing.
  
• - Was never employed up to the time he committed the offences.
  
• - Married to Marang Balu and has three children from 1 to 3years old.
  

(ii) Background - Bernard Kavanamur Balu:

• - Born in 1965 (about 46 years old) at Vunapope General Hospital.
  
• - Baptized and attends Catholic Church Congregation at Raburbur village.
  
• - Attended Vunavavar Primary School.
  
• - Attended Vunamami Vocational Centre where he attained a certificate in mechanic.
  
• - Married to Martha Toubar and has two children aged between 1 and 3 years old.
  
• - Was employed as mechanic with logging companies from 1985 to 1987 and was employed as mechanic with Dalmain Enterprise Ltd from 2007 to 2009 and earned K250.00. He was self employed at the time he committed the offences charged with.
  

Prior Convictions: State pleaded no prior convictions for both defendants.

Submission on Sentence - State

11. The State began its submission apart from the preliminary matters by submitting three issues for the Court to consider in assessing the appropriate sentences to be imposed on the defendants. These issues are:
    
    1. What is the appropriate sentence for each charge?
       
    2. Should each defendant be sentenced according to the role each played in the commission of the crime (s)?
       
    3. Should the sentences be concurrent or cumulative?
       
12. Mr Kuvi then in order to assist the Court arrive at the appropriate sentences presents for consideration a number of case laws on the offences the defendants were charged with. He submits that the principles on sentencing is settled in the case of Goli Golu-v- The State [1979] PNGLR 653, that maximum prescribed penalty for an offence is always reserved for the worst type case. I agree that the maximum prescribed penalty is always reserved for the worse type cases. It is settled law in our criminal jurisdiction.
    
13. Mr Kuvi submits that this Court should firstly consider whether or not this case is of worst type case. He submitted that to answer this question the case should be considered in its totality. He submits that this was a case of payback; a case of retaliatory attack by the defendants and their accomplices Martin and others who are still at large for the injuries Martin received from being cut with a knife by Peter Tanel.
    
14. Mr Kuvi submits that the attack was serious in that not only did the defendants inflicted life threatening wounds on Collin Ilde, Rose Alir and Thelma Ansila but also the burning down of Peter Tanel's house as well as destroying properties belonging to Julius Anton and Thomas Tue.
    
15. Mr Kuvi submits that in the light of all this, this case warrants being considered as exceptionally serious. The attack itself may be classed as alcohol fuelled hysteria; and rightly so because it appears from the evidence that the defendants have been drinking at the relevant time.
    

Submission on Sentencing – Charge of Arson

16. Mr Kuvi for the state submits that the defendants were found guilty by virtue of sections 7 and 8 of the Criminal Code Act for burning the down of the dwelling house belonging to Peter Tanel which attracts life imprisonment. To assist the Court to arrive at an appropriate sentence he refers the Court to the case of Emil Kongian and 7ors which was an appeal from the National Court, and the case of The State –v- James Wakis (2008) N3426.
    
17. The brief facts in Emil Kongian & 7ors -v- The State is that there was an ongoing land dispute between the appellant and the complainants. A fight broke out between the complainants and the appellants.
    
18. The appellants burnt down four (4) houses belonging to the complainant as well as unlawfully detained one of the complainants. During the trial at the National Court the appellants were sentenced to imprisonment ranging from 11-14 years depending on the part each appellant played in the whole episode.
    
19. However the Supreme Court when hearing the appeal reduced the sentences to 3- 5 years for each appellant. Supreme Court was of the view that the trial Judge erred when exercising discretion in sentencing.
    
20. The brief fact in The State-v- James Wakis (supra) is that the defendant had a dispute with his brother over an oil palm block which they were sharing. The defendant together with other accomplices entered his brother's house and chased out the occupants setting fire to his brother's house as well as an adjacent haus boi.
    
21. At the trial before the National Court the defendant was sentence to six (6) years imprisonment, however it was suspended on condition that the defendant paid K6000 within six (6) months.
    
22. Having read the above cases I am satisfied that the defendants were sentenced according to the roles played in the commission of the offence.
    
23. I read the case of The State-v- Ipu Samuel Yomb [1992] PNGLR 261in which her honour Doherty J set out the factors relevant on the charge of arson when considering sentences. These factors are:
    
    1. The deliberate or very reckless putting of lives at risk;
       
    2. The deliberate pouring of kerosene or any inflammable liquor and setting fire to the roof, knowing that people were inside;
       
    3. The deliberate locking of the door, so preventing escape by 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.
       
    7. Whether the house was permanent, semi permanent or of bush materials. This would be relevant to its value.
       
24. In Ipu Samuel Yomb (supra) sentences of six to seven years was appropriate, however her honour Doherty J reduced seven years to five years in hard labour taking into account the age of the defendant at the time he committed the offence, his plea and prior good behaviour.
    
25. In the present case, and according to the evidence of Peter Tanel, he was not in the house but was standing behind the flowers, a distance he estimated at about 10 meters and watched his house been set on fire. There was no risk to his life. It is not clear from the evidence whether Peter Tanel's immediate family members were in the house at the time it was set on fire. There is no evidence that kerosene or any inflammable liquid was poured on the house. There is however evidence the house was set on fire with matches.
    
26. There is no evidence that the defendants and the other perpetrators locked the doors, so preventing the occupants from escaping. There is no evidence of cold blooded planning by the defendants and the other perpetrators. There is no evidence of the value of the house and its content.
    
27. There is evidence that the defendants and the other perpetrators were provoked and angry about Martin, a relative of the defendants and the other perpetrators still at large cut by Peter Tanel with a bush knife.
    

Submission on Sentencing – Charge of Attempted Murder s.304

28. Mr Kuvi submits there are two counts of attempted murder that this Court has convicted the defendants of. However, according to the indictments presented to this court, there are three attempted murder charges against the defendants. The first count is attempted to unlawfully kill Collin Ilde Jerry, the second is attempted to unlawfully kill Rose Alir, and the third is attempted to unlawfully kill Thelma Ansil.
    
29. Evidence clearly shows Collin Ilde Jerry suffered a very serious bush knife cut on her left hand while Rose Alir suffered skull fracture which showed a hole in the skull allowing the covering of the brain tissue to leak out, and Thelma Ansila suffered a very deep and wide knife wound to the back of her neck. She also suffered the loss of a thumb, complete severance.
    
30. In support of State's submission on sentence on attempted murder, Mr Kuvi relies on the unreported case of The State-v- Frank Johnston Murray William and Moses (2004) N2586.
    
31. The brief fact of this case is the defendants attempted to cut the victim having suspected him of breaking into a store. When they missed him using a grass knife, they used a sling shot loaded with a stone thereby smashing one of the victim's eyes resulting in total loss of sight of the eye smashed. At the trial they were convicted of attempted murder and were sentenced to 17, 19 and 20 years.
    
32. I was also referred to the unreported case of The State –v- Michael Waragau, (2007) N3265. The brief fact of this case is that the defendant was amongst a group of 12 men that got on a vehicle with the complainant and two other deceased persons.
    
33. As they travelled along the road, the defendant and two others attacked the two deceased persons as well as the victim who were all seated in the vehicle cabin. The victim suffered stab wounds around the neck but survived. The other two died immediately or sometimes after the attack. The defendant pleaded guilty to the charge of attempted murder and was sentence to 25 years imprisonment with hard labour.
    
34. Prior to this sentence handed down on him he was previously convicted of wilful murder of the other two deceased persons and was sentenced to life imprisonment.
    
35. This is a case that fell in the worse type case category and involved different victims and the sentences reflect the roles played by the defendants and were to be served cumulative upon each other.
    

Submission on Sentence –Wilful Damage to property s.444

36. In respect to the charge of wilful damage of property Mr Kuvi submits the defendants have also been found guilty of destroying properties belonging to Julius Anton and Thomas Tue which included a dwelling house, water drums, cups, pots, betel nuts, cacao trees and coconut trees. The State submits that the defendants should be sentenced to six months imprisonment for the offence and sentences be suspended on the condition that compensation is paid to the complainants.
    
37. This offence attracts a prescribed maximum penalty of two (2) years imprisonment. In considering the appropriate sentence to be imposed on the defendants on the charge of wilful damage to property there are factors I think that need to be taken into consideration. These are:
    
    1. What extent was the damage done to the house owned by Julius Anton and Thomas Tue? Was the damage on each house big or small?
       
    2. How much is the damage to each dwelling house worth?
       
    3. How many cups, water drums, betel nut trees, cacao trees, and coconut trees were damaged or destroyed, and in the case of betel nuts, cocoa trees and coconut; were they young or fully grown trees as their values would differ and what was their value in total?
       

A proper listing and assessment of how much they worth would have been of great assistance to the court.

Aggravating Factors:

38. The State submits the aggravating factors are:
    
    1. There was loss of property.
       
    2. Group attack.
       
    3. Offensive weapons, such a piece of plank and bush knives were used during the fight.
       
    4. Life threatening injuries; one victim's thumb was completely amputated.
       
    5. No remorse shown by the defendants.
       
    6. The victims were helpless and were innocent. They were attacked without knowing why they were attacked.
       

Is this the worse type case?

39. One of the questions the State raised on its submission is for this Court to decide whether this case falls within the worse type case or not so as to properly consider the appropriate sentences on the defendants.
    
40. Mr Kuvi reiterated the charges against the defendants arose from the same or closely related set of facts, a chain of events occurring simultaneously whereby a chain of offences were committed with offensive weapons used to inflict server injuries on the victims who had no knowledge of why they were attacked and the loss of properties.
    

Should the defendants be sentenced according to the roles they played?

41. The other issue that was raised by the State for this court to consider and to decide whether the defendants be sentenced according to the roles they played in the commission of the offences.
    
42. The court was referred to the case of Gimble-v- The State [1988-89] PNGLR 271 in which their honours said regarding sentencing co defendants:
    

"The general rule is that all active participants in the crime should be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or iron bar, or was a watchman, or was the driver in a get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated."

43. The principle in Gimble's case was adopted in the case of The State-v- Tupis Tom and Nathan Bobi, (Unreported Judgement), (N3675) where two defendants were convicted for murder and sentenced to 12 years imprisonment each with hard labour according to the roles they played in the commission of the offences.
    
44. Mr Kuvi submits the defendants in this matter should be given the same sentences for each of the counts that they have been found guilty according to the roles they played in the commission of the offences charged with.
    
45. To answer these two questions raised by the State that whether this matter falls in the worse type case or not and whether to sentence the defendants according to the roles they played in the commission of the offences, the court needs to identify the roles played by the defendants based on the evidence it accepted.
    
46. What are then the roles played by the defendants in the commission of the offences?
    
    1. They were present and took part in a fight at Palnakaur village with the other perpetrators namely Martin, Raymond and Albert Girar and others, and were running towards Thomas Tue's house angry and very aggressive whereby the word s "kilim ol na paitim ol" were shouted towards Peter Tanel and his relatives.
       
    2. Defendant Matthew Balu was heard by Rose Alir to have shouted "kilim ol".
       
    3. Defendant Bernard was seen and heard by Mary Tue to have asked for matches from his nephew Thomas Tue and set fire to Peter Tanel's house.
       
47. This is not a case where the defendants were the actual perpetrators to all the charges but were found guilty for aiding and abetting under Sections 7 and 8 of the Criminal Code Act except for the defendant Bernard Kavanamur Balu whom the evidence shows is the person that set Peter Tanel's house on fire with matches and was completely destroyed.
    
48. Having considered the submission by the State on this question on the roles played by the defendant and the factors that are relevant to the charges of arson (State-v- Ipu Samuel Yomb (supra) and to the charge of wilful damage to property which I have set out above in regard to the sentences to be imposed on each defendant, I form the view that this case is not worse type case, nor exceptionally serious but I say it is serious because the consequences of the roles played by the defendants were serious particularly to the injuries on the victims and loss of properties.
    
49. In regard to the question on whether the defendants should be sentenced according to the roles they played in the commission of the offences, I adopt the law as in the Gimble's case, that defendants should be sentenced according to the roles they played in the commission of the offences.
    

Can the sentence be served cumulatively or concurrently?

50. In regard to whether the sentences are to be served cumulatively or Concurrently, Mr Kuvi referred me to the case The Public Prosecutor-v- Sydney Kerua & Ors [1985] PNGLR 85 at page 90. In this case the Supreme Court held:
    

" in deciding whether sentences should be made concurrent or cumulative the court should be guided by the following principles:

(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 victim, the sentences should normally be cumulative.

(iii) when the 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 just and appropriate. If it is not, it must vary one or more sentences to get a just total.

51. The above principles were previously discussed in the earlier case of The Acting Public Prosecutor-v- Konis Haha [1981] PNGLR 205 in which the Supreme Court said:-
    

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

52. In the pre -independent case of Tremellan-v- The Queen [1973] PNGLR 116 the principle was stated in the following words:
    

"Although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a congeries of offences is committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts."

53. In summary, Mr Kuvi submits there are three principles relating to deciding whether a sentence should be made cumulative or concurrent in Public Prosecutor –v- Sydney Kerua and Ors [1985] PNGLR 85. These are:
    
    1. Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.
       
    2. Where the offences are different in character, or in relation to different victim, the sentences should normally be cumulative.
       
    3. when the 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 just and appropriate. If it is not, it must vary one or more sentences to get a just total.
       
54. These are the principles the Supreme Court referred to when it said this:
    

"The National Court has discretion whether a sentence should be concurrent or cumulative but this discretion should be exercised in accordance to well known principles." - Public Prosecutor –v- Sydney Kerua & Others (supra) at page 90, paragraph 3.

55. In the light of the above, Mr Kuvi submits the appropriate sentencing range for arson against each defendant is 6-8 years, and in relation to the charge of attempted murder a range of 12-15 years. On the charge of wilful damage to properties the State submits a term of six months which can be suspended upon an order for compensation to the victims whose properties were destroyed.
    
56. Mr Kuvi also submits that the sentences should be the same for each prisoner considering that they had acted in concert with each other and the others accomplices who are still at large.
    
57. Finally the State submits because there are different victims with regard to the charge of attempted murder, the sentences for these then should be cumulative for each defendant. These cumulative sentences should then be served concurrent with the sentences imposed for the charges of arson and wilful damage to property.
    

Submission on Sentence - Defence

58. Mr Motuwe for the defendants commenced his submission by restating the offences his clients are charged with.
    

Mitigating Factors:

1. The defendants are first offenders.
   
2. The defendants have been caught by sections 7 and 8 of the Criminal Code Act – meaning they were not actually perpetrators to have executed the offences except of defendant Bernard Kavanamur Balu who was identified as the person who set fire to Peter Tanel's house.
   

Relevant Principles in Sentencing

59. Mr Motuwe submits:
    
    1. That the maximum sentences are always reserved for the worse type offences and are rarely imposed.
       
    2. Rules guiding judges in imposing sentences in cases of multiple counts such as ours is governed by the totality principle. Mr Motuwe submits this principle states that where sentences are imposed, the total of all sentences imposed must not be such that in the end it will be too high.
       
    3. Another relevant principle would be that of imposing concurrent or cumulative sentences for multiple counts.
       

Prior convictions

60. Mr Motuwe agrees with the State that no prior conviction records against each defendant.
    

Prescribed Penalty: s.304, s.436, s.444

61. The offence of attempted murder attracts a prescribed penalty of life imprisonment – Section 304.
    
62. The offence of arson attracts a prescribed penalty of life imprisonment- Section 436.
    
63. The offence of wilful damage of property attracts a prescribed penalty of two years imprisonment- Section 444.
    
64. The Court however has discretion to consider any of the penalties prescribed under section18 and section 19 of the Criminal Code Act.
    
65. I am satisfied that the offences arose from the same set of fact for which I am bound to apply the general principle in sentencing co- offenders set out in the case of Gimble-v- State [19888-89] PNGLR 271. That is all active participants in the crime should be sentenced on the same basis.
    
66. As to consideration of whether the sentences should be made concurrent or cumulative I am bound to apply the principles stated in the cases of Tremellan-v- The Queen (supra) and re- stated in the case of Acting Public Prosecutor-v- Konis Haha (supra) and again in State –v- Sydney Kerua & Ors (supra) as regards to having arrived at appropriate sentences and decided whether they be made concurrent or cumulative the court must look at the total sentence to see if it is just and appropriate. If it is not, the court must vary one or more sentence to get a just total.
    
67. I agree that maximum prescribed penalties are reserved for the worse type cases. I conclude that this present case is not worse type case, neither exceptionally serious but serious. I also agree that defendants are to be sentenced according to the role they played in the commission of the offence and also agree the sentences are to be assessed carefully in totality and to be varied and served concurrent. I am also mindful of the defendants been in custody since 2007.
    
68. On the charge of attempted murder of Collin Ilde Jerry I consider a custodial sentence of 5 years imprisonment with hard labour for each defendant as the appropriate sentence for this charge. I sentence each defendant to 5 years imprisonment with hard labour.
    
69. On the charge of attempted murder of Rose Alir I consider a custodial sentence of 5 years imprisonment with hard labour for each defendant as appropriate sentence for this charge. I sentence each defendant to 5 years imprisonment with hard labour, cumulative to the above sentences.
    
70. On the charge of attempted murder of Thelma Ansila I consider a custodial sentence of 5 years imprisonment with hard labour for each defendant as appropriate sentence for this charge. I sentence each defendant to 5 years imprisonment with hard labour, cumulative to above sentences.
    
71. I set out above on the case of State-v- Ipu Samuel Yomb (supra) factors which are relevant to sentencing on the charge of arson which was not put to the court for consideration. I consider a custodial sentence of 4 years imprisonment with hard labour for each defendant as appropriate sentence for this case. Sentences are to be served concurrent on attempted murder charges after pre trial custody period is deducted.
    
72. On the charge of wilful damage of property belonging to Julius Anton and Thomas Tue, I set out three factors below that I consider relevant for the court to consider on sentencing the defendants on the charge of wilful damage of property. These are:
    
    1. How much damage was done to the dwelling house of Julius Anton and Thomas Tue?
       
    2. How much is the damage worth?
       
    3. Proper listing of the other properties damaged or destroyed and how much they are worth if assessed?
       
73. I am of the view that some evidence should have been led on these factors to assist the Court to consider the appropriate sentences.
    
74. In the absence of these I agree with the State on its submission on the custodial sentence of six (6) months imprisonment with hard labour for each defendant. I sentence each defendant to six months imprisonment with hard labour. Sentences are to be served concurrent on the charge of arson.
    
75. Each defendant shall serve the balance after the pre trial custody period has been deducted.
    

___________________________________
Public Prosecutor: Lawyer for the State
Motuwe Lawyers: Lawyer for the Accuseds