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State v Kamotau [2016] PGNC 214; N6412 (19 July 2016)

N6412

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR Nos.976 & 977 OF 2015

THE STATE

V

TONY KAMOTAU

Alotau : Toliken, J.
2016: 14^th June, 19^th July

CRIMINAL LAW – Sentence – Arson – Plea – Offender sets fire to stack of mineral fuel (zoom) and shed – First time offender – No remorse shown – some non-legal provocation – Not a prevalent offence in the Province but prevalent nationwide – Need for deterrence – Starting Point - Starting points for dwelling house, public institutional building and garden houses considered - Starting Point of 7 years for economic and commercial building suggested – Head sentence - 6 years – Criminal Code Ch. 262, s 436 (d).

SENTENCE – Grievous bodily harm – Two counts – Unprovoked assault on two innocent victims – Some permanent disability by one victim – Prevalent offence – Need for deterrence – Staring point 3 ½ years – Head sentences 4 years for each count – Criminal Code Ch. 262, s 319.

SENTENCE – Whether cumulative or concurrent – Though different victims, part of same transaction – Sentences to run currently – Suspension Inappropriate.

Cases Cited:
Avia Aihi v The State (No.3) [1982] PNGLR 92)
Goli Golu v The State [1979] PNGLR 653
Kongian v The State (2007) SC928
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC 890
The State v Bart Kiohin Mais & Anor (2005) N2811
The State v Benny Makeu; CR No. 564 of 2012(Unnumbered judgment dated 13^th August 2015)
The State v Charlie Dinou; CR No. 729 of 2014 (Unnumbered judgment dated 6^th May 2016)
The State v Emmanuel Dos; CR No. 644 of 2013 (Unnumbered judgment dated 15^th April 2016),
The State v Konos (2010) N4157
The State v Lawasi (2015) N5964
The State v Mapi Mack (2010) N4100
The State v Sengi (2015) N6087
The State v Sheekiot (2011) N4454
The State v Tokenaki (2015) N5960
The State v Yeskulu (2003) N2241
The State v Yomb (1992) PNGLR 261

Counsel:
H Roalakona, for the State
C Kambua, for the Prisoner

SENTENCE

19^th July, 2016

1. TOLIKEN J: On 14^th June 2016, the accused pleaded guilty to an indictment charging him with one count of arson and two counts of unlawfully causing grievous bodily harm, offences under Sections 436 (d) and 319 of the Criminal Code Ch. 262 (the Code) respectively.
   
2. He was charged that on 22^nd day of February 2015 at Vidia village, Rabaraba , Milne Bay Province he –

Count One: “... wilfully and unlawfully set fire to a stake of mineral fuel belonging to Sisiwa co-operative society.”

Count Two: “... unlawfully did grievous bodily harm to one Chrisenda Kadiewa.”

Count Three: “... unlawfully did grievous bodily harm to one Barten Didigewa.”

3. The brief supporting facts are as follows; on 22^nd February 2015, the prisoner armed himself with a bush knife and walked to Tipara Hamlet at Vidia Village. He walked to the house of one Lima Didirebona where there was a bush material shed where zoom belonging to the Sisiwa Co-operative society was stored. He cut the door down and when he entered he cut open a 20 litre container of zoom. He then walked over to Lima Didirebona’s house and picked up a burning piece of wood and dry coconut leaves. He returned to the shed and set fire to the fuel (zoom) and the shed.
   
4. The prisoner then confronted Chrisenda Kadiewa and Barton Didigewa who were returning to Tipara Hamlet from a church service. He attacked Chrisenda Kadiewa with a bush knife, cutting her on left arm, and when Barten Didigewa tried to stop him from further attacking Chrisenda, he cut him on his head. He then ran away. The victims were taken to the Dogura Health Centre and later transferred to the Alotau General Hospital for treatment.
   
5. The Medical Reports of the victims dated 20^th March 2015 by Dr. Pakop Titus revealed that Chrisenda Kadiewa sustained compound fractures to her left radius and ulna bones, while Barten Didigewa sustained a fracture to the skull and tear into his brain. Both victims were hospitalised and eventually discharged, but were to continue to attend regular reviews.
   
6. The offence of arson carries a maximum penalty of life imprisonment, while causing grievous bodily harm carries a maximum penalty of 7 years.
   
7. Whether the prisoner gets the maximum penalties for his offences will depend on the circumstances of his offences and whether they can be considered to be worst instances of these types of offences. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92)
   
8. The issues for the court to consider therefore are;
   1. Are these offences the worst of their type so as to attract the prescribed maximum penalties?
   2. If not what would be an appropriate sentence for each count?
   3. Should suspension be considered?
9. The Prisoner comes from Vidia village, Rabaraba, in the Weraura LLG in the Alotau District of the Milne Bay province. He is 32 years old and is single. He comes from a family of 6 siblings of which he is the eldest. He was educated up to Grade 6 only and is a member of the Anglican Church. He was briefly employed for year by Milne Bay Estates as a casual labourer. He is a first time offender and had been in custody for 1 year and 4 months prior to his conviction on plea.
   
10. The prisoner chose not to say anything when asked why he should not be punished for his offences.
    
11. However, in his behalf Ms. Kambua submitted the two counts of causing grievous bodily harm are not the worst instances of the offence, and therefore they should attract head sentences of 3 years because the prisoner did not intend nor pre-plan to cause harm to the victims.
    
12. For the count of arson, counsel submitted that the prisoner was angry after he was attacked and chased my villagers who suspected him of destroying a cross in front of the village church. In his anger he set alight the fuel shed and the 840 litres of zoom (pre-mix petrol) worth K6510.00 that were in the shed in the process. Counsel said that the prisoner acted spontaneously and did not plan to set the shed on fire, and that he did not endanger anyone as no one was around or in the shed when he set it alight. For this count Counsel submitted that an appropriate sentence should 3 years also.
    
13. An oral pre-sentence report was filed in behalf of the prisoner. Whilst it describes the prisoner’s reasons for his action, the report recommends against probation supervision.
    
14. Ms. Roalakona, for the State on the other hand submitted that appropriate sentences for each of the three counts should be 3 years. Counsel said that the offences are aggravated by the facts that the attack on unarmed victims was unprovoked, they sustained injuries, substantial financial loss was incurred by the villagers through their society and that this offences are very prevalent.
    
15. So, what are the objective seriousness of the prisoner’s offences and his level of culpability? Taken in totality, given that these offences were committed almost simultaneously, the offences may not necessarily be the worst because of lack of pre-planning. Despite that, the harms done to the victims – the Sisiwa Co-operate Society and Chrisenda Kadiewa and Barten Didigewa were quite serious – to the Society, substantial financial loss, and serious injuries to Chrisenda and Barten. Setting fire to 840 litres of highly inflammable combustive fuel such as zoom carries with it the inherent danger of injury or even death and collateral damage to other buildings. I assess the seriousness of this offences and the prisoner’s culpability to moderately high.
    
16. What then should be the starting points here? For grievous bodily harm it has been held that the starting point should be 3 ½ years. (The State v Sheekiot (2011) N4454; The State v Konos (2010) N4157 per Cannings, J.) I have followed this in a number of my own cases (The State v Tokenaki (2015) N5960; The State v Lawasi (2015) N5964; The State v Emmanuel Dos; CR No. 644 of 2013 (Unnumbered judgment dated 15^th April 2016), but perhaps I should now add that this starting point should apply equally to both pleas and convictions after trial. For the two counts of causing grievous bodily harm I therefore set starting points of 3 ½ years.
    
    17. For arson, the Supreme Court in Kongian v The State (2007) SC928 held that the starting point for the burning down of a dwelling house, or a public institution building such as a school building or hospital should be 10 years and 5 years for a haus win or a garden house. (The State v Yeskulu (2003) N2241 followed).
        
    18. So, what should be the starting point for arson involving a store, warehouse or other business or commercial buildings? I would like to think that an appropriate starting point should lie between 10 and 5 years, and 7 years seems to me to be appropriate. I therefore set a starting point for this type of arson at 7 years.
        
    19. What then should be appropriate sentences for the prisoner? Let me begin by considering firstly the mitigating and aggravating factors, and secondly, sentences which have been imposed in similar cases.
        
    20. I find the following mitigating factors in the prisoner’s favour:

1. He pleaded guilty to the charge.
2. He is a first time offender.
3. In relation to the charge of arson he was provoked in the non-legal sense.
4. There was no-one in the shed when the prisoner set it on fire.
21. However, against him are the following aggravating factors:
1. Substantial loss to the village through their co-operative society
2. Though the arson was not pre-planned the prisoner displayed a high degree of deliberateness in targeting the fuel shed to vent his anger after he was attacked by villagers.
3. Use of an offensive weapon to attack the victims.
4. The attack on the victims was unprovoked.
5. The victims sustained serious injuries – the victims suffering fractured arm and skull.
6. The victim Barten Didigewa was attacked/slashed on a vulnerable part of his body – the head which result in a skull fracture that involved the brain.
7. The victim Chrisenda Kadiewa is a woman – a member of the weaker gender who cannot effectively defend herself from a male attacker.
8. The prisoner has not shown any remorse at all for his offences.
9. Both the offence of arson and causing grievous bodily harm are prevalent.

22. The aggravating factors of the offence clearly outweigh the mitigating factors. Now, these offences were clearly unrelated to the destruction of the church cross which resulted in the prisoner being attacked and chased by his fellow villagers. The prisoner’s claim of being attacked by the villagers is not disputed by the State. Hence, I have taken that into account in his favour. (Saperus Yalibakut v The State (2006) SC 890).
    
23. While the crime of arson is not so common in this province, the offence of causing grievous bodily harm is. The circumstances of offences under consideration are such that appropriate high sentences should be imposed for personal as well as general deterrence.
    

But, at this juncture it is appropriate to refer to a few of the cases that counsels have cited to appreciate the sentencing trend for these two offences.

24. The State v Sengi (2015) N6087 (Polume-Kiele J.): The offender there was drunk when he attacked a school teacher in a Primary School. He then entered the Staff Office and set the building on fire. The fire apparently was stopped but not before it had damaged louver blades, curtains and fly wires and some school materials. The offender pleaded guilty, was remorseful and had begun to make restitution and promised to further compensate the school, was a first time offender and co-operated with the police. Her Honour Polume-Kiele J., after considering a long list of authorities, sentenced the prisoner to 2 years imprisonment, which was then wholly suspended on condition.
    
25. The State v Mapi Mack (2010) N4100 (David J.): The offender pleaded guilty to setting fire to two vehicles. He was a member of a clan which had been disputing over the ownership of certain land within the Kutubu Oil Project Area. A decision of the National Court in Waigani was adverse to his clan. Reacting to that decision, a clan leader called a meeting and it was agreed in that meeting that they should kill a member of the victorious clan and burn any machinery and equipment working on the Tari-Homa road.
    
26. Arming themselves with a shotgun and a container of petrol, the offender and other clan members proceeded to the camp site. Once there, the offender fired on two employees of Oil Search Ltd, missing them. They then chased the other employees away, doused two big trucks with petrol and set them on fire. The loss to the owners of the trucks was in excess of K2m.
    
27. His Honour David J., took into account the facts that the offender was a first time offender, illiterate and simple villager, there was de facto provocation brought about by the adverse decision of the court, the prisoner’s guilty plea and that the offender had no means of making restitution, or pay compensation, but nonetheless felt that a deterrent sentence was needed and imposed a sentence of 8 years, which was partially suspended on terms.
    
28. The State v Yeskulu (2003) N2241 (Kandakasi J): There the offender pleaded guilty to burning down a bush material Elementary School classroom. He acted under a bona fide customary claim of right to the land on which the school was built. He was a first time offender and was genuinely remorseful and had taken steps to rebuild the classroom and make restitution for other properties lost in the fire. A good pre-sentence report recommended a non-custodial sentence. The offender was sentenced to 6 years imprisonment which was wholly suspended on terms.
    
29. In that case His Honour Kandakasi J. categorized different types of buildings and the circumstances under which the offence may be committed as a means of gauzing the seriousness of an offence. These are:

1. A dwelling house with people inside;
2. A dwelling house without any occupants;
3. Public institutions such as school, hospital, or offices with occupants inside;
4. Public institutions such as school, hospital, or offices without occupants inside;
5. A haus win, or garden house, or a run-down, or dilapidated or incomplete house;
30. His Honour suggested that for the burning down of a dwelling house, or a public institution building such as a school building or hospital, a starting point should be 10 years and 5 years for a haus win or a garden house. This was subsequently approved by the Supreme Court in Kongian v The State (supra) as we have seen above.
31. In Kongian & Ors v The State (supra), the appellants had appealed against both their convictions and sentences for arson. The National Court had convicted them of four counts of arson and one count of deprivation of liberty. They were sentenced to total terms of imprisonment of between 11 and 14 years for arson. The trial judge set a starting point of 10 years for arson of a dwelling house, following his earlier decision in Yeskulu and worked upwards from there. The Supreme Court, however, found that the houses in question were not dwelling houses at all, but garden houses and therefore should attract starting points of 5 years. The Supreme Court therefore quashed the sentences and imposed 3 years.
32. Earlier in The State v Yomb (1992) PNGLR 261, the offender pleaded guilty to setting fire to the house occupied by his sister-in-law and her family in retaliation for the ill-treatment of his sister by her husband, who was the brother of the victim of the arson. This was a pre-planned case of arson where the offender had earlier asked others to help him, but they refused. The offender had locked the door from outside before setting fire to it with the occupants, including children inside. The occupants managed to get out by knocking down a roofing iron wall as the fire was quickly spreading. Her Honour Doherty J. sentenced the offender to 5 years based on the following relevant factors –

1. The deliberate or very reckless putting of lives at risk;
2. The deliberate pouring of kerosine 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;
6. The complete lack of provocation offered to the defendant by the occupants and their children.
35. The State v Bart Kiohin Mais & Anor (2005) N2811 (Cannings J). There the co-offenders, in retaliation to the stabbing of one of their brothers burnt down a semi-permanent dwelling house together with personal effects of the man they suspected of the stabbing, which turned out to be true. They had taken a plastic container of petrol and poured the petrol around the housed and then set it alight. No-one was in the house at that time. They acted spontaneously. They pleaded guilty and the court took into account that they were provoked in the non-legal sense. They were sentenced to 2 years imprisonment which was fully suspended on terms.
36. After reviewing a number of cases including Yomb and Yeskulu, His Honour then espoused certain factors which encapsulated and expanded on those considerations in Yomb and Yeskulu, which His Honour formulated in question form. These are:
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, e.g. 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?
37. Perhaps one other factor that also needs to be taken account is, whether the offender committed any other offence at the same time of the arson, such as whether he simultaneously or subsequently assaulted or attacked the owner of the house or structure or some other person as was the case in the current case.
38. Applying the above considerations to the case at hand, I find that the offender here, pleaded guilty to the charge, he is a first time offender and was provoked in the non-legal sense, and that there was no one in the shed when he set it on fire.
39. The offender acted spontaneously after he was attacked by fellow villagers. However, he acted with deliberativeness and set fire to the petrol shed which had absolutely nothing to do with the issue for the village church cross. The loss to the co-operative society was substantial and the offender did not express any remorse at all nor did he offer to make restitution, but even if he did, he does not have the means to do so.
40. The offence of arson is not too prevalent in this province, but it is prevalent nationwide. And this calls for an appropriate deterrent sentence to prevent people from engaging in this kind of behaviour.
41. The offender here had absolutely no reason to turn his anger at the property in question. Hence he must be appropriately punished. I have set a starting point of 7 years for this type of arson. In the circumstances of this case I think that an appropriate head sentence should be 6 years.
42. I therefore sentence the prisoner to 6 years imprisonment.
43. Now, let me turn to the two counts of causing grievous bodily harm. Again this was a totally unprovoked attack on two innocent victims. There is no evidence that they were involved at all in attacking the offender, let alone part of the group that attacked and chase him for damaging the village church cross.
44. Again the offender offered no apology to the victim nor did he offer to pay compensation to them. The offender remained very much unapologetic and unremorseful for his actions.

45. This is one offence that is very prevalent in this province. Sentences that I have imposed of late ranged from 2 years to 4 years. For instance The State v Tokenaki (supra) (4 years); The State v Lawasi (supra) (2 ½ years); The State v Emmanuel Dos (supra) (Rising of the court); The State v Benny Makeu; CR No. 564 of 2012 (unnumbered judgment dated 15 August 2015) (3 years) and The State v Charlie Dinou; CR No. 729 of 2014 (Unnumbered judgment dated 6^th May 2016) (3 ½ years).

46. An appropriate sentence for the two counts of causing grievous bodily harm should therefore be 4 years. A sentence below the starting point of 3 ½ years cannot be justified in the circumstances.
47. I therefore sentence the offender to 4 years imprisonment for each count of causing grievous bodily harm.
48. Now, that is a total aggregate sentence of 14 years: 6 + 4 +4). So the next question is; should these sentences run concurrently or consecutively? The principles in deciding whether sentences should run concurrently or cumulatively were settled by the Supreme Court in Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88. These are:

(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.
49. The offences here were part of a single transaction even though the victims were different. Hence, the sentences should therefore be concurrent.

50. The prisoner should therefore serve 6 years. From that the period of pre-sentence custody of 1 year and 4 months is deducted. None of the balance will be suspended.

51. The prisoner is to serve the balance at Giligili Corrective Institution.
    

Ordered accordingly.

______________________________________________________

The Public Prosecutor: Lawyer for the State

The Public Solicitor : Lawyer for the Prisoner