State v Toura [2016] PGNC 305; N6506 (1 November 2016)

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CRIMINAL LAW – Sentencing - prisoner pleaded guilty to offence of arson under section 436(f) of the Criminal Code Act Chapter No. 262 - evidence of possible psychological impairment to the brain due to drug use - whether imprisonment better option for the prisoner as an alternative for rehabilitation against drug use - whether releasing the prisoner may be detrimental in terms of his drug habits - suitable punishment considered

Cases Cited:
State v. Clarence Tema (2007) N3259
State v. Francis Kawai Kauke (2013) N5131
State v. Jack Binde (No. 2) (2015) N6146
State v. Kianu Kikimbe (2016) N6180
Thress Kumbamong v. The State (2008) SC1017

1. ANIS AJ: This prisoner has admitted to the charge of arson under section 436(f) of the Criminal Code Act Chapter No. 262 (Criminal Code Act).

2. On 19 October 2016, the Court administered his allocatus. His lawyer and the prosecution presented written submissions on sentences shortly after. The Court reserved its ruling to a date to be advised.

4. The facts, which the prisoner has pleaded guilty to, are these: On 8 December 2014 at 1pm the prisoner went inside the premises of Soi Soi Investment Ltd at Kereba village in Kerevat, East New Britain Province. He approached an Isuzu Truck, which was parked inside the premises with the registration number ROA 621. The prisoner picked up a piece of cloth, lit it, and placed the burning cloth on the Isuzu Truck and set the truck on fire. Another person saw the burning truck and pushed the prisoner away, and he put out the fire from spreading onto other parts of the truck. The estimated damage caused by the fire to the truck was K5, 000.

(iii) Whether the prisoner should be granted probation and if so what type of probationary conditions should be set?

6. The prisoner is 28 years old. He is single. He is from Iavakaka village in Rabaul, East New Britain Province. He did not complete his primary education after he completed grade 2 at the Pilapila Primary School in East New Britain in 1996. He has never been employed. His parents separated in 1987 and he and his three (3) siblings have lived all their lives with their mother. He is the second born. His elder sister Lavinia is 31 years old. She is in the village and has two (2) children. His younger brother Joe is 16 years old. He is not educated and is in the village. His youngest brother Tokau is 14 years old and attends Kereba Primary School in East New Britain Province.

9. Both parties presented their submissions on mitigating and aggravating factors. I have considered them. Let me firstly start with the mitigating factors. I list them herein:

10. I note that the defence has submitted use of marijuana that had affected his mental abilities as a mitigating factor. I reject that. I do not think that is a valid mitigating factor at all [see cases: State v. Clarence Tema (2007) N3259; State v. Jack Binde (No. 2) (2015) N6146]. There is no evidence or suggestion that he was forced into smoke marijuana. The only suggestion I note is from the prisoner's mother. She has stated in the pre-sentence report that the prisoner may have been influenced by other men at their block to smoke the drug. However, that, in my opinion, is not a valid reason given the fact that the prisoner is already a grown man of 28 years old. He is an adult who should or ought to be capable of being responsible for his own actions.

11. I note that both parties did not submit any aggravating factors for this case. I cannot find any valid aggravating factors. But there is suggestion that the prisoner consumes the drug marijuana so let me consider whether that can be regarded as an aggravating factor. My simple answer is "no". It is not a pleaded allegation to which the prisoner has admitted to in his plea. The suggestion or issue was raised during the course of and at the hearing of submissions on sentence by the defence counsel. And as I have stated above, the prisoner's mother only mentioned that as a point in her interview with the probation officer which was captured in his report. But these, in my opinion, were mere suggestions that had no real evidence from experts to confirm. I note that final report from the mental health officer Mr Raymond Atam of the Nonga General Hospital dated 5 October 2016 has cleared the prisoner of any permanent mental illness.

12. The prisoner has admitted to committing the offence of arson under section 436(f) of the Criminal Code Act. I read the said section herein:

13. The maximum sentence for the offence of arson is life imprisonment. The section also acknowledges the National Court's discretionary power under section 19 of the Criminal Code Act in sentencing.

14. For the present case, it is obvious that the arson committed by the prisoner is less serious and as such, in my opinion, it should not attract the maximum sentence of life imprisonment. This Court will not exercise its power and award the maximum penalty of life imprisonment.

15. The defence submits the prisoner should receive a sentence of six (6) years. It submits that the Court should exercise its discretion and fully suspend the sentence of six (6) year with imposed conditions. It also submits that imposed conditions should include making an order for the prisoner to repay the value of the damage caused to the vehicle with set timeframe for compliance.

16. The defence concludes by submitting that the Court should be lenient on the prisoner.

17. The prosecution on the other hand submits the prisoner should be imprisoned. The prosecution submits that this is consistent with the victim's wish. The victim has stated in the pre-sentence report that the prisoner does have the capacity to repay the K5, 000 so he should fully serve his custodial sentence. The victim also said that custodial sentence, if imposed by the Court, would provide some form of rehabilitation for the prisoner given his conduct and habit. Let me quote the probation officer's summary of what the victim had said because, in my opinion, her suggestion appears to be a sensible one. It reads:

She advised the author that seeing that the compensation monies was not being paid or that the family was not in a position to pay, it would be best for all that the offender remain in custody and that he should serve out court ordered custodial sentence, to assist in the rehabilitation of Mr Ronal ToUra.

18. The victim said in the report that the prisoner had been stalking her daughter for sometime before the incident happened. The report also revealed that the prisoner has a habit of stalking young girls and making up stories to other people.

19. The prosecution did not submit a prison time to be imposed on the prisoner. It submits however that the prisoner should be imprisoned for some time for his own good. The submission seems to be based on the pre-sentence report particularly concerning the prisoner's possible drug use and his stalking habits. The prosecution, in line with the victim's plea, submits that the prisoner should be imprisoned because in that way, he would be kept away from taking drugs that are harmful to him and that being in prison, the prisoner could continue to undergo or receive treating to improve his mental condition.

20. I have considered various similar reported cases on arson. I have identified two (2) cases which I believe are relevant or that can reasonably be compared the present case.

21. The first case is State v. Francis Kawai Kauke (2013) N5131. The prisoner was a ship's captain. He suspected his wife of having an affair with his neighbour. One time, he got drunk and went over to his neighbour's house. He was armed with a spade. He swore and threatened the people inside his neighbour's house. He then set fire to two (2) of his neighbour's 15 seater buses. The buses were valued at K90, 000. He was charged with arson under section 436(f) of the Criminal Code Act. He pleaded guilty and he was sentenced to five (5) years imprisonment less his pre-custodial sentence time.

22. The next case is State v. Kianu Kikimbe (2016) N6180. Prior to committing the offence of arson, the prisoner was a mechanic who was employed by the victim, which is a company. The prisoner and a group of landowners converged onto the company premises. He and four (4) others burnt down a refuelling truck that belonged to the victim. The truck was worth K179, 800. The landowners there had complained that they were not being offered employment, which led to the incident. The prisoner was charged with arson under section 436(f) of the Criminal Code Act. The prisoner pleaded guilty to the charge. He was sentenced to eight (8) years imprisonment less his pre-custodial sentence time. The balance of prisoner's sentence was suspended subject to imposed conditions, which included an order for restitution to take place within six (6) months from the date of the Court Order.

23. I note that both cases involve burning down of motor vehicles and admissions to the offence, which is somewhat similar to the present case. But having said that, I find the two cases much serious compared to the present case because:

(i) both cases have clear motives for burning down the vehicles unlike the present case;

(ii) the value of damages caused in both cases were substantial unlike the present case;

(iii) both cases involved threats and use of violence unlike the present case; and

(iv) in both cases, the vehicles were completely destroyed by fire unlike the present case.

24. I will exercise my discretion and impose a sentence that is less than life imprisonment. I do so pursuant to section 19 of the Criminal Code Act. I also do so following the principles and remarks made by the Supreme Court in the case Thress Kumbamong v. The State (2008) SC1017. The Supreme Court stated and I read:

71. Given that Parliament has not provided for any fettering of the discretion vested in a trial judge, we are of the view that the exercise of that discretion should be left to the trial judge and not be prescribed by case law which could effectively amount to a usurping of the powers and functions of Parliament and the Supreme Court unlawfully legislating. The Supreme Court or any Court should be careful not to prescribe or regiment the way in which a sentencing judge should exercise his or her sentencing discretions in the particular circumstances of a case before him or her. We must never forget the well accepted principle that, each case must be determined on its own merits and that criminal sentencing is not a matter of mathematics but logic and common sense. Considering all of these, we do not take issue with the Supreme Court setting guidelines as to what sort of factors a sentencing judge should take into account but it cannot set sentencing ranges or tariffs with minimums as “starting points” and maximums within the maximums Parliament has already provided for. Instead, a trial judge has and should be left with his or wide discretion to impose such a sentence or penalty has he or she considers the particular circumstances of the case warrant. That discretion cannot be curtailed, restricted or interfered with except for very good reason, say for example, where there is a total improper exercise of the discretion and going against any sense of logic and common sense and perceptions of justice and fairness. In the exercise of that discretion, a trial judge should be at liberty to impose a sentence that could be considered either too low or a “quantum leap” or “too crushing” on an offender if the circumstances in which the offence was committed and the factors for and against the offender warrant the kind of sentence imposed.

25. The above is some of what the Supreme Court has said concerning the Court's discretionary power under section 19 of the Criminal Code Act. I find them valid and I will adopt and apply that here.

26. For the present case, I propose to impose a sentence of four (4) years imprisonment with light labour on the prisoner. I note that the prisoner's mitigating factors are favourable to him. The prisoner has pleaded guilty; he has co-operated with the police; he has said sorry for his actions and he has made some payment to the victim in relation to the damage that was caused to the victim's vehicle. I note that I have already discussed these above in my judgment.

28. I will deduct one (1) year from the four (4) years sentence. I will therefore impose a sentence of three (3) years imprisonment with light labour for this prisoner.

29. Except for time already spent in custody, which I will deduct, I will not suspend any further time after that. In my opinion, the prisoner must serve his full term. The primary reason for me arriving at this decision is this: I find that it would actually be to the prisoner's best interest that he be kept in custody for some time. Being kept in prison will prevent the prisoner from consuming drugs. The prisoner's imprisonment will be regarded as a rehabilitation process for him. I propose to also make orders that, whilst in prison, the prisoner shall continue to receive psychiatric evaluation during the tenure of his light sentence.

30. In regard to the first issue, that is, Whether the prisoner is mentally sound my answer is "yes, this was confirmed by medical report". In regard to the second issue, that is, If so, what would be the fitting punishment to impose upon him? my answer is "the prisoner shall serve three (3) years imprisonment with light labour". In regard to the final issue, that is, Whether the Court should be granted probation and if so what type of probationary conditions should be set? my answer is "no, but I will issue conditions which will be observed by Correctional Service".

31. The prisoner was arrested on 22 July 2015 and has since been in custody. I note that the Court's power to deduct pre-custodial sentence is discretionary under section 3(2) of the Criminal Justice (Sentences) Act 1986. In this case, I will exercise my discretion and make the deduction forthwith.

32. I further order that the prisoner shall be taken to the Nonga Base Hospital every April, August and December during his prison term for psychiatric evaluation to monitor his stable mental condition.

Length of sentence imposed	3 years
Pre-sentence period in custody to be deducted	1 year, 3 months and 10 days
Amount of sentence suspended	Nil
Time to be served in custody	1 years, 8 months and 21 days
Condition:	Mental evaluation at the Nonga Based Hospital every April, August and December during the prison's prison term
Place of custody	Kerevat Correctional Service

Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Prisoner

National Court of Papua New Guinea

State v Toura [2016] PGNC 305; N6506 (1 November 2016)