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State v Gorera [2013] PGNC 381; N9038 (13 September 2013)

N9038

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1490 OF 2002

THE STATE

V

NOEL GORERA

Popondetta: Toliken, AJ
2012 : 18^th October
2013: 13^th May, 13^th September

CRIMINAL LAW – Sentence – Attempted murder – Prisoner stabs child three times with bush knife – Places his 2-year-old child in house and sets house on fire – Child saved by relatives – Suffers burns to 60 -70 % of body - Plea of guilty – Appropriate sentence – 27 years – Criminal Code Ch. 262, s 304.

CRIMINAL LAW – Sentence - Arson – Prisoner sets bush material house on fire with child in it – House and personal properties completely destroyed – Aggravating factors outweigh mitigating factors – serious criminal & moral culpability – Appropriate sentence – 13 years – Criminal Code Act Ch.262, s 436(a).

CRIMINAL LAW – Sentence – Though part of same chain of events offences are distinct in nature and involved different victims – Cumulative sentences – Total sentence of 40 years crushing on prisoner – Totality principle applied – prisoner to serve 25 years less period spent in custody.

Cases Cited:
Peter Naibiri and Kutoi Soti Apia v The State (1978) SC 137
The Public Prosecutor v Sydney Kerua & Ors [1985] PNGLR 85
Rex Lialu v The State [1990] PNGLR 487
The State v Ipu Samuel Yomb [1992] PNGLR
Joe Foe Leslie Leslie v The State (1998) SC560
The State v Bulu Yasanga CR 1524 of 2003 (unnumbered and unreported judgment)
The State v Henry Ilomo (2003) N2420
The State v Andrew Yeskulu (2003) N2410
The State v Johnston and Ors (No.2) (2004)
The State v Ute (2004) N2550
The State v Bart Kiohin Mais and Henry Kevi (2005) N2811)
Emil Kongian and Ors v The State (2007) SC928
The State v Kinapa (2009) N3814
The State v Anton Towakra and others (2009) N3845
The State v Piru (2010) N4221
The State v Matthew Balu and Bernard Kavanamur Balu (2011) N4362

Counsel:
J. W Tamate and D. Kuvi, for the State
L. Mamu, for the prisoner

SENTENCE

13^th September, 2013

1. TOLIKEN, AJ. On the 18^th of October 2012, Joel Gorera (the prisoner) was indicted for one count of attempted murder and one count of arson in contravention of Sections 304 and 436 (a) of the Criminal Code Act Ch. 262 respectively.

The Charges

2. The charges were that:

Count 1: NOEL GORERA of Orede, Tufi, Oro Province stands charged that he on the 12^th day of May 1999, at Orede Village, Tufi, Oro Province in Papua New Guinea, attempted to unlawfully kill one GREG GORERA.

Count 2: NOEL GORERA of Orede, Tufi, Oro Province stands charged that he on the 12^th day of May 1999, at Orere Village, Tufi, Oro Province in Papua New Guinea, wilfully and unlawfully set fire to a dwelling house, belonging to ANTON SIONA. (Sic.)

The Allegations

3. The allegations are that the prisoner was married to one Juliane Siona. They had two children aged 3 years and 2 years at the time of the alleged incidents. Sometime in 1997, back in the village of Orede, Tufi, the prisoner had an extra-marital affair with a woman named Karen who later became his second wife. This happened when his wife (Juliane) was living in Popondetta. Juliane heard about the affair and returned to the village and took back her children. This resulted in growing animosity between the prisoner and Juliane.
   
4. On or about the 10^th or 11^th of May 1999 the prisoner and his wife had a heated argument. He assaulted her with a bush knife. Because of this Juliane ran away leaving the children with her relatives.
   
5. Soon after that the prisoner forcefully removed the 2-year-old child from Juliane’s relatives. He then stabbed the child three times on his back and knees, put the child in Anton Siona’s house and set it on fire.
   
6. The State alleged that when the accused stabbed the child and placed him in Siona’s house and then set the house a light intending to cause the death of the child. Furthermore, he did not have any lawful excuse in burning down Anton Siona’s house. The prisoner admitted the charges after they were separately put to him.
   
7. I entered a provisional of guilty pleas. I confirmed the pleas on both counts after I was satisfied that the evidence in the committal depositions supported both his charges and his pleas.

Preliminary Issue

8. I administered the allocutus and heard submissions from counsel. I then adjourned to consider sentence. However, as I was going through the file, I noted that a couple of indictments for willful murder were presented before separate judges previously. I noted also that endorsements on the file did not indicate whether these had been dealt with already.
   
9. It also become apparent to me at that time that there were some issues with the prisoner’s fitness to plead. A couple of orders for medical examination were issued. On 17^th of July 2012 a psychiatric report was finally received from the Laloki Psychiatric Hospital under the hands of the examining psychiatrist Dr. Losavati Wilbur. Dr. Wilbur declared the prisoner fit to plead. This resulted in his arraignment for the current charges on 18^th October 2012.
   
10. In respect of the indictments for willful murder I enquired of counsel and was advised verbally by the defence lawyer Mr. Mamu that the prisoner had already been convicted and sentenced for that by his Honour Gavera-Nanu J. in 2009. Since there was no endorsement to that effect in the court file, I issued orders to the Registrar to furnish a Certificate of Conviction or Discharge, as the case may be, to the court. I also directed the Director - Court Reporting Service to likewise provide the transcript of the circuit in which the prisoner was said to have been convicted.
    
11. On the 13^th of May 2013 the Director of Court Reporting Service filed a Certificate of Correctness which verified a 4-page copy of the transcript of the proceedings before His Honour on 07 April 2010. The transcript confirms conclusively that the prisoner was in fact convicted on a plea to a reduced charge of manslaughter by His Honour Gavera-Nanu J. on 22^nd May 2009 and was sentenced to the rising of the court. The prisoner was then left with the two charges which he had now pleaded to.
    
12. That being done, I am finally able to pass sentence on the matter.

Issues

13. The issue before me is basically what would be appropriate sentences for the prisoner for his offences.

Addresses on Sentence

14. The prisoner did not address the court on sentence when the allocutus was administered. I had to ask him again if he was sure that he did not have anything to say.

General Plea in Mitigation.

15. By way of a general plea in mitigation for the two offences Mr. Mamu acknowledged the prevalence of violent offences here in Popondetta and of the need to protect child victims but submitted on behalf of the prisoner that there are several factors mitigating his offences – that he pleaded guilty thus saving time and money for the State had it ran a trial, expression of remorse, no prior convictions and that he is illiterate. Mr. Mamu said further that the prisoner’s guilty plea is a first step towards rehabilitation.
    
1. Charge of Attempted Murder
   
16. On this charge Mr. Mamu very briefly asked for a sentence of 10 years citing The State v Bulu Yasanga CR 1524 of 2003 (unnumbered and unreported judgment) as a case bearing similarity with the current matter. Counsel did not provide the Court with a copy of this judgment though.
    
17. Mr. Kuvi on the other hand urged the Court to consider that this case arose out of marital problems and the victim was an innocent child who had nothing to do with the problems and issues affecting his parents. The child suffered mentally and physically as a result and must live with scars for the rest of his life.
    
18. In relation to this charge Counsel drew the Court’s attention to several aggravating factors. These are –
    

• The use of a weapon
• The injuries were sustained by the victim
• The prevalence of the offence in the country but more particularly here in the Northern Province
• The victim was an innocent and helpless 2-year-old child – the prisoner’s own child
  

19. Counsel said that the prisoner showed no remorse at all for his crime. Counsel cited a couple of cases, the circumstances and facts of which are not similar to the current case, but which are nonetheless relevant to show that penalties for attempted murder are high. These are The State v Ute (2004) N2550 and The State v Johnson (No.2) (2004) N2586. These cases attracted sentences of 20 and 19 years respectively. I will return to these later.
    
20. Counsel therefore submitted for term of 20 years.

The Offence

20. The offence of attempted murder is provided by Section 304 as follows:

304. Attempted murder, etc.

A person who—

(a) attempts unlawfully to kill another person; or

(b) with intent unlawfully to kill another person does any act, or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger human life,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

21. The fact that the offence carries the maximum penalty of life imprisonment – subject, of course to the Court’s discretion under Section 19 of the -Code – reflects the very serious nature of the offence. Like every attempt, the offence is not completed or consummated hence a very real danger remains for the victim. To that end the Supreme Court when confirming life sentences against the appellants for the attempted murder of a policeman in Peter Naibiri and Kutoi Soti Apia v The State (1978) SC 137 on the grounds that the sentences were manifestly excessive, stated that:
    

“[T]he crime of attempting to murder, insofar as it involves the specific (though unsuccessful) intent to kill — may be regarded as potentially more serious than that of murder and many cases of manslaughter, which involve intents to do less serious things, but produce, without intending — death.”

22. His Honour Ellis J. in The State v Kinapa (2009) N3814 succinctly put it this way:

“8 It would be wrong to think of attempted murder as anything less than a serious crime because it is really a situation where, because of the need to establish an intention to kill, the charge would have been wilful murder had the victim not survived. Support for the view that attempted murder is a serious offence may be found in the fact that the offence of attempted murder carries a maximum sentence of life imprisonment. When someone is charged with murder instead of wilful murder it is usually the case that there was an intention to inflict grievous bodily harm rather than an intention to kill. Manslaughter is commonly the charge when death is an unintended consequence of where death is due to negligent or reckless conduct. Simply stated, a charge of murder and manslaughter involve a death but no intention to kill whereas a charge of attempted murder involves an intention to kill but no death.”

23. It follows therefore that sentences for attempted murder must necessarily be higher than those for manslaughter because of the presence of the element of an intention to kill which is absent in the former. So, what has been the sentencing trend?
    

Sentencing Trend

24. Let us consider a few cases starting of course with Peter Naibiri and Kutoi Soti Apia v The State (supra). There the appellants aged 17 and 19 years old respectively were sentenced to life for an attempted murder of a policeman. They had broken, entered and stole from premises and stole a vehicle which they were travelling in when noticed by the police who gave chase. After a long high-speed chase around Port Moresby, they lost control when cornered and their vehicle ran off the road. They then attacked the three policemen who had been following them with knives. They drove off two of the policemen and returned to the police vehicle and stabbed the police driver twice on the chest and back. The stab wounds penetrated and cut the edge of the liver and the corner of one of the lungs causing severe blood loss. Despite his near fatal injuries, the driver managed to drive to safety before collapsing.
    
25. The offenders were youthful offenders, had no prior convictions and pleaded guilty to the charge. It was submitted that the sentences were manifestly excessive, having regard principally to the youthfulness of the offenders, that they had no prior convictions, that their offence was not premeditated, and that it was not the worst or most serious of its kind. The Supreme Court, however, rejected the appeal and affirmed the life sentences.
    
26. In Joe Foe Leslie Leslie v. The State (1998) SC560. In that case, the police, acting on a tip-off, surrounded a house at a Settlement in Port Moresby where the appellant, a prison escapee, was hiding. One of the policemen climbed up the steps of the house and called out if there was anyone in the house. Receiving no response, he pushed the door open. The appellant who was lying on the floor with a sawn-off shotgun opened fire and shot at the policeman injuring him on the right shoulder. The injured policeman ran out of the house and was taken to the hospital for medical treatment.
    
27. The appellant put up a fight with the other policemen who had fired a gas canister into the house to flush him out. This was, however, met with a shot from the appellant which luckily though did not hit anyone. A little while later a fire started, and the appellant came out of the house. The police shot him in the leg and apprehend him.
    
28. The trial judge considered this to be a worse instance of attempted murder and imposed the maximum prescribed sentence of life imprisonment. The Supreme Court agreed and confirmed the sentence on appeal.
    
29. In The State v Ute (supra) the prisoner – a Correctional Officer – pleaded guilty to one count of attempted murder. He had had a disagreement with the victim over the supply of electricity to his hamlet which was adjacent to a Health Centre where the victim worked. The offender’s sons eventually removed two of the power poles. The offender confronted the victim in his house, armed with a licensed shotgun and told him that he had come to kill him.
    
30. The victim tried to reason with the offender and invited him to sit down. The offender refused and instead pointed the loaded gun at the victim and said to him; “Fucking say your last prayers and I’ll blow your head off now”. He repeated these three times and then asked the victim if he had finished his prayers. He then took a step back, balanced himself and took a shot at the victim narrowly missing him. The victim fell on the floor covered with gun powder. The pellets, however, almost killed one of the victim’s family members.
    
31. The court considered that the offender was a first-time offender, had pleaded guilty to the charge and that the victim did not sustain any injuries. Against him, however, were the following aggravating factors: the use of a firearm, the fact that he was a member of a disciplined force whose sworn duty was to uphold the law, his previous use of the same firearm to threaten staff of the same Health Centre and that his action was intentional in that he aimed at the victim intending to kill him. His Honour Kandakasi J., however, viewed that the offence was not deserving of the maximum penalty and sentenced the offender to 25 years imprisonment.
    
32. In The State v Johnston and Ors (No.2) (supra), the offenders were found guilty after trial for the attempted murder of their victim whom they had blamed for an incident of breaking, entering and stealing. One of them tried to cut the victim with a grass knife but was prevented by a bystander while another shot a stone to the victim’s eyes with a slingshot from which the victim suffered permanent loss of one eye. The offenders were youthful offenders, two of whom were 14 and 16 years old. His Honour Kandakasi J. considered that the offenders took the law into their own hands and did not bring their grievance to village authorities and that the violent offence were too prevalent, hence the need for deterrent sentence. He imposed sentences of 20, 19 and 17 years commensurate with each offenders’s degree of participation in the crime.
    
33. In The State v Kinapa (supra), the offender and three others boarded a PMV with the victim. When the PMV stopped along the way, they dragged the victim out off the bus. The offender swung his bush knife at the victim’s head. The victim put up his right hand to defend himself and the knife sliced through the victim’s right hand close to the wrist subsequently resulting in the amputation of the mid-forearm. The victim was also struck on the back of the head and on the back of the neck with bush knives by two of the offender’s accomplices. The attack was in retaliation for the death of the prisoner’s brother. The court described the victim’s injuries as follows:
    
    • the resulting head wound required a full thickness skin graft.
    • the head wound [presented] a near circular “bald patch”, about 3 cm in diameter, on the back of the victim’s head.
    • The resulting neck wound healed but left a visible scar which is about 3cm in length.
    • the attack was such as to cause the doctor who treated the victim to form the opinion that the victim needs both physical and psychological rehabilitation.
      
34. His Honour Ellis J. considered that this was part of a group attack, the offender did not show genuine remorse, some compensation was paid, and that the offender did not have any prior convictions. The prisoner was sentenced to 10 years imprisonment.

The Current Case

35. For the purpose of determining an appropriate sentence in this case, I firstly consider the prisoner’s mitigating factors. He pleaded guilty to the charge and is a first-time offender. These are pretty much the only factors that operate in his favour.
    
36. Against him, however, are the following aggravating factors; the prisoner used a dangerous weapon, a knife to stab the child – once on his knees and twice on his back. The medical report from the Acting Officer In-charge of Tufi Health Centre dated 14/5/99 also revealed that the child suffered burns to 60-70% of his body. Open wounds and blisters covered the back, legs and hands. And on arrival at the Health Centre “the child was in a state of shock, crying bitterly, burnt blisters and open wounds all over the body including the three stab wounds” (sic.)
    
37. The child was innocent and defenseless who did not provoke the treatment that he got from his father the prisoner. The prisoner remained stoically silent when he was asked to address the court on sentence and did not as much as express or even show any sign of remorse.
    
38. The aggravating features of this offence clearly place it amongst the worst instances of attempted murder. I view with gravity that the prisoner attacked his defenseless child with a knife, stabbing him three times once on his knees and twice on his back. If that were not enough, he took his child – a mere 2-year-old - placed him in a house and set the house on fire. There is absolutely no doubt what the prisoner’s intentions were. There is also absolutely no doubt that if it were not for the quick action of the prisoner’s wife’s relatives the child would have ended up dead.
    
39. At this juncture I cannot help but allude to the fact that the prisoner had in fact done the same thing to his other child – 3-year-old Denco on the night of the same day. The depositions show that he also forcefully took the child Denco from relatives and took him to the same house where apparently, he put the child and set it on fire. The charred remains of the child were discovered amongst the ashes of the house the next morning. For this the prisoner was charged indicted for the reduced charge of manslaughter and sentenced to the rising of the court as I have mentioned above.
    
40. Because he exercised his right to remain silent, we will never know what his motive was or what drove him to commit such atrocious and unimaginable acts of violence against his children. These were children who looked up to him for love and security but in return got murderous treatment from him.
    
41. There is therefore absolutely no doubt in my mind that this offence easily ranks amongst the worst instances of attempted murder as I already said. So, should it attract the maximum penalty?
    
42. Whether it should or should not, one thing must be said and that is that in this province there are too many crimes of violence against persons. On our active list there are no less than 40 homicides cases registered. In fact, homicides and serious assaults against persons make up the majority cases here. And we can be sure that this number will continue to increase despite our best efforts in trying to stem the problem by imposing appropriately stiff custodial sentences.
    
43. In deciding whether or not the maximum ought to be imposed I take into account the cases I have cited above. It is obvious that the courts have not shied away from imposing the maximum penalty. The two cases cited above, however, involved the attempted murder of policemen. (Peter Naibiri and Kutoi Soti Apia v The State (supra); Joe Foe Leslie Leslie v. The State (supra))
    
44. As the Supreme Court had said in those cases, there should not be any illusion that attempted murder must justifiably attract higher sentences because of the existence of the element of intention to kill. If the intention is consummated the end result will be willful murder.
    
45. Of all the cases cited above I think that the case of The State v Ute (supra) would be bear some similarity with the current case, even though the offender there was a Correctional Officer. That case attracted a term of 25 years. The victim there did not suffer any physical injury whereas in the instant case the prisoner acted with a high degree of determination and inflicted injuries on his child which was an overt manifestation of his intention to kill the child. He stabbed his child three times, put him in a house and set the house on fire. There is therefore a very high degree of criminality as well as moral blameworthiness or culpability on his part. So, if Ute attracted 25 years the instant case must attract a slightly higher sentence.
    
46. Counsel asked for sentences of 10 and 20 years respectively. All that I can say to that is that the suggested terms do not sufficiently take into account the subjective seriousness of this offence and the grave danger that had and may befall the victim.
    

Notional Sentence

47. So, in the circumstances – particularly that the aggravating factors of this offence clearly outweigh the mitigating features – I feel that the appropriate notional sentence should be 27 years.
    
48. I therefore sentence the prisoner to 27 years imprisonment for the attempted murder of Greg Gorera.
    

2: The Charge of Arson

49. On the charge of arson Mr. Mamu asked the Court for a suspended sentence. He drew the Court’s attention to two cases to support his submission. In The State v Andrew Yeskulu (2003) N2410 His Honour Kandakasi J. sentenced the prisoner to 7 years on a guilty plea which His Honour then wholly suspended. There the prisoner was in the company of others when he committed the offence. In The State v Henny Ilomo (2003) N2420 the prisoner was also given a wholly suspended sentence of 7 years. Mr. Mamu therefore asked the Court to impose a similar sentence from which the period spent in custody should be deducted.
    
50. Mr. Kuvi on the other hand submitted that this was a most serious offence. The prisoner burnt down a dwelling house with his own child in it. This greatly aggravated the offence. He said that the housing may have been of bush material but as the going goes “a man’s house is his castle.”
    
51. Mr. Kuvi acknowledged the cases cited by the defense but said that the sentences in those matters were low because the offenders were young. Here the offender is not a young man – he was married.
    
52. Counsel urged the court to consider and apply the principles set out in The State v Ipu Samuel Yomb [1992] PNGLR 261 when considering the appropriate sentence. He said the circumstances of this case warranted a sentence of 10 years.

The Offence

53. The offence of arson is prescribed by Section 436 of the Code as follows:

436. Arson.

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.

53. Arson attracts the maximum penalty of life imprisonment because of the potential danger posed to life. However, arsons are not all the same. Hence reckless cases of arson are less serious than intentional or planned ones.
    

Sentencing Principles

54. The offence is a prevalent one and the National Court has for some time now been guided by principles that set out the considerations that may be taken into account when deciding appropriate sentences.
    
55. In The State v Ipu Samuel Yomb (supra), the offender had pleaded guilty to setting fire to a house occupied by his sister-in-law and her children in reprisal over the ill-treatment of his sister by her husband, the victim’s brother. Her Honour Doherty J set down certain factors which she thought were relevant to that case but, which, have since been held to be of general application. These are:
    
    • The deliberate or very reckless putting of lives at risk.
    • The deliberate pouring of kerosine and setting fire to the roof, knowing that people were inside.
    • The deliberate locking of the door, so preventing escape by the occupants.
    • The deliberate cold-blooded planning of the offence.
    • The value of the house and its contents to the occupants.
    • The complete lack of provocation offered to the defendant by the occupants and their children.

56. The courts have also categorized the type of buildings or structures in determining an appropriate sentence. These are:

• A dwelling house with people inside
• A dwelling house without any occupants
• Public institutions, such as schools, hospitals or offices, with occupants inside
• Public institutions, such as schools, hospitals or offices, without occupants inside
• A house wind or a garden house or a run down and deteriorated or incomplete structure

(See The State v Yeskulu (supra))

57. Other factors to be taken into account include:
    
    • the value of the damage caused to the house/structure
    • the type of the house or building- whether it is permanent, semi-permanent or bush material
    • the value of the house or building and its contents
    • the class of victim directly affected by the prisoner’s action
    • whether the prisoner recklessly or deliberately put lives at risk
    • whether the offence was planned in a calculated and deliberate manner including how it was executed
    • whether inflammable liquids e.g., kerosene or petrol was used
    • whether occupants of the house were locked inside the house to prevent escape.
      

(See The State v Ipu Samuel Yomb (supra); The State v Matthew Balu and Bernard Kavanamur Balu (2011) N4362; The State v Andrew Yeskulu (supra); The State v Anton Towakra and others (2009) N3845 and The State v Bart Kiohin Mais and Henry Kevi (2005) N2811)

58. In Emil Kongian and Ors v The State (2007) SC928 the Supreme Court held that the starting point for arson of a dwelling house should be 10 years.
    

Sentencing Trend

59. The State v Ipu Samuel Yomb (supra). A sentence of 6 – 7 was considered appropriate, and taking into account the offender’s age (19 years) the sentence was reduced from 7 years to 5 years.
    
60. The State v Henny Wamahau Ilomo (supra). There the offender pleaded guilty to burning down the victim’s bush material house, a kitchen and firewood shed because he suspected the victim of causing his sister’s death through sorcery. The prisoner took steps to rebuild the building and replace other properties lost in the fire. His Pre-Sentence Report (PSR) and Means Assessment Report (MAR) were favourable and recommended a non-custodial sentence and restitution. The prisoner was sentenced to 7 years which was then wholly suspended on terms.
    
61. The State v Yeskulu (supra). The offender pleaded guilty to burning down a bush material classroom over a non-legal bona fide claim of right. He was a first-time offender and took steps to rebuild the building. He expressed genuine remorse. He also had favourable a PSR and MAR. He was sentenced to 6 years which was fully suspended on terms.
    
62. The State v Anton Towakra (supra). The three offenders there were convicted of two counts of arson. Under the first count, they were convicted of burning down their wantok’s permanent dwelling house and bush material kitchen house. Under the other count, they were convicted of burning down the first victim’s brother’s permanent dwelling house/canteen. They were notionally sentenced to 9 years for the first count and 7 years for the second count to be served cumulatively for a total of 16 years. To avoid a crushing effect and in keeping with totality principle the sentences were reduced to 10 years.
    
63. The State v Piru (2010) N4221. There, the offender pleaded guilty to deliberately burning down a large permanent house, belong to the victim (a widow) who had been baby-sitting her child. The house and all its contents including valuable items were lost in the fire. This was unprovoked. A sentence of 10 years was imposed. The court there (Gavera-Nanu J.) said that sentences for arson ought to increase because of the serious nature of the offence and its increasing prevalence.
    

The Present Case

64. In determining an appropriate sentence for this charge, I again note that the prisoner had pleaded guilty to charge and is a first-time offender. These are the only two mitigating features of this offence.
    
65. In applying the factors enumerated above I find that a few of these operate against the prisoner.
    
    • the house he burnt down was a bush material one, but regardless of its lesser value when compared with a permanent house, is nonetheless a very valuable asset in the rural village setting to which the victim and the prisoner belonged. To the owner this was his “castle.”
    • the prisoner deliberately set the house on fire.
    • he subjected his own 2-year-old child to grave danger of death when he stabbed him in one of his knees and back and then placing him in the house and then setting it alight.
    • the owner of the house lost personal properties including kitchen utensils, clothing, suitcases, tools and other properties worth over K2875.00 (see depositions). These are quite substantial by village standards.
    • the prisoner did not show any remorse at all.
    • neither the child nor his uncle (the victim of arson) provoked the prisoner in the non-legal sense into acting as he did.
    • Arson is also a very prevalent offence.
      
66. Viewed objectively the circumstances of this offence are indeed very serious because of the above considerations.
    
67. I accept that the starting point for arson of a dwelling house is 10 years. So having regard to the circumstances, I feel that the head sentence here should be above the starting point. This is a case that must call for a deterrent sentence. Further to that the prisoner must be punished for the simple sake of punishment to exact from him respect for the law.
    
68. The depositions show that he had a fall-out with his first wife, the mother of the child in this case and he took a second wife. The first wife seemed to have accepted the situation. If the prisoner had any grievances with his first wife, he ought to have taken it up with village leaders or with the police at Tufi. He did not but instead choose to take the law into his own hands.
    

Notional Sentence

69. An appropriate head sentence should therefore be above 10 years. In the circumstances I fix notional sentence of 13 years.
    
70. So, the total notional sentences for both offences shall 27 years + 13 years = 40 years. Should the sentences be served concurrently or cumulatively?
    

Sentences – Whether Concurrent or Cumulative

71. On this question the Supreme Court in The Public Prosecutor-v- Sydney Kerua & Ors [1985] PNGLR 85 at p.90 held that the sentencing court should be guided by the following principles:

(i) where two or more offences are committed in the course of angle 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 is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

71. In this case while the offences were part of the same chain of events, they are different in character and involved different victims. Therefore, they should run cumulatively. Hence the combined term will be 40 years.
    
72. Now I must decide whether the total is just and appropriate so that it is not crushing on the prisoner. In this regard I feel that a term of 40 years would be too crushing of the prisoner and so, applying the totality principle I reduce the term to 25 years.
    

SENTENCE/ORDERS

73. The prisoner shall therefore be imprisoned for 25 years less time spent in pre-trial custody being 13 years 6 months and 10 days. The resultant sentence shall be 11 years 5 months and 20 days which shall be served at Biru Corrective Institution.
    

Sentenced accordingly.
_____________________________________________________________
The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Prisoner