State v Kalal [2019] PGNC 58; N7797 (10 April 2019)

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CRIMINAL LAW – Admission to the offence - arson – section 436(a) of the Criminal Code Chapter No. 262 – bush material house burnt down in retaliation – discussion on mitigating and aggravating factors – whether extenuating circumstances present - appropriate sentence – whether partial or full suspended sentence appropriate

The prisoner and people from his village had a dispute with the people from their neighbouring village. In the end, the neighbouring village burnt down houses from the prisoner’s village including the prisoner’s house. The prisoner and some village people from his village retaliated on the same day. The prisoner set fire to one of the houses of the rival village. The prisoner voluntarily surrendered 2 days later when police arrived at his village to investigate. He was granted bail. He later absconded bail, returned to his village and had lived there for about 23 years. He was re-arrested and put in custody. He has pleaded guilty to the charge of arson.

Steven Loko Ume v. The State (2006) SC836
State v. Kuru Bisok (2007) N5483
State v. Bart Kiohim Mais (2005) N2811
State v. Peni Bilak (2005) N2866
State v. Isaiah Iona (2018) N7480
State v. Joe Ngotngot & Eremas Matiul (2016) N6364

1. ANIS J: On 15 March 2019, the prisoner pleaded guilty to the offence, arson, under section 436(a) (offence) of the Criminal Code Act Chapter No. 262 (Criminal Code). This was his sentence hearing. It was heard on 5 April 2019. I reserved my ruling to today at 9:30am.

3. The prisoner comes from a village called Hoia which is situated in the East Pomio Local Level Government (LLG) in East New Britain Province. At that time, a dispute arose between two (2) clans, the Tomoiep Clan and the Suluka Clan. Members of the Suluka Clan were said to have burnt down houses that belonged to the Tomoiep Clan. So, on 28 October 1996, at around 3pm, the prisoner, with members of the Tomoiep Clan, retaliated by launching an attack at a village called Long village that belonged to the Suluka Clan. Over there, the prisoner set alight a house that was made of bush material. The house caught fire and was burnt to ashes.

4. Two (2) days later, police arrived at the prisoner’s village to investigate. The prisoner voluntarily surrendered. He was arrested and charged with the offence. On 29 January 1997, the prisoner was granted a Court bail of K200 to await prosecution. The prisoner absconded bail shortly after. A bench warrant was issued for his arrest. After 23 years, the prisoner was arrested in March of this year. The prisoner is in custody.

5. The offence arson is prescribed under section 436 of the Criminal Code. The prisoner has pleaded guilty to section 436(a). It states, and I quote in part, A person who wilfully and unlawfully sets fire to — (a) a building or structure, whether completed or not..... is guilty of a crime...... Penalty: Subject to Section 19, imprisonment for life.

6. The issues in my view are, (i), whether the Court should consider and impose the maximum sentence of life imprisonment, and if not, what would be the suitable sentence for the prisoner, and (ii), whether the sentence imposed should be wholly or partially suspended with imposed conditions.

7. The prisoner is 46 years old. His parents and all his seven (7) siblings have passed on. He is the last surviving sibling of the family. He is illiterate. He completed grade two (2) in his primary education. He never excelled further after that in his education. He has never been formally employed. He is a subsistence farmer. He also operates a small trade store in his village.

9. This is what the prisoner had to say at allocatus. He said he was sorry for what he had done to the government and to the eyes of the Court. He said he was wrong. He said he would like to also say sorry to the community for the wrongs he did to his brothers. He asked the Court to have mercy on him and give him a suspended sentence.

10. I note the submissions of both counsel regarding the mitigating factors. In my view, they are, (i), first time offender, (ii), co-operated with police and admitted to committing the offence, and (iii), expressed remorse.

11. I reject other mitigation factors submitted by both counsel. Let me comment on the following. Firstly, in relation to the claim defacto provocation, I reject that as a mitigating factor because I will address that separately below. I also note that de facto provocation cannot be regarded as a mitigating factor in the strict sense because its effect is to reduce or diminish the gravity of a committed offence. See the case Steven Loko Ume v. The State (2006) SC836. Secondly, I also reject the claim that because the prisoner had observed good behaviour and peace for the past 23 years, that that should be noted down as a mitigating factor. With respect, I find this claim not only baseless but quite bizarre. The prisoner had absconded bail and an arrest warrant had been issued for his arrest; he had been an outlaw for 23 years before he was apprehended. In my view, if the prisoner was a good law-abiding person then he should never have absconded his bail in the first place. The defence also submits that no lives had been put at risk for the committed offence, as such, it claims that this should also be put down as a mitigating factor. I, however, reject this as a mitigating factor because there is insufficient evidence on this point before me. It is not known whether there was anyone inside the house when it was set alight by the prisoner. Without that and in my view, it would be speculative and unjust to base my findings on unfounded facts.

12. I note the submissions of both counsel regarding the aggravating factors. In my view, they are, (i), group attack, (ii), deliberate attack, (iii), endangering lives of the people.

13. I reject the claim that I should include absconding bail for 23 years, as an aggravating factor. In my view, this fact is separate and has nothing to do with the facts that surrounded the offence to which the prisoner has pleaded guilty. It may however be relevant when the Court is considering the type of punishment that may be imposed on the prisoner. I also reject the claim that the offence is prevalent. Despite making the claim, the prosecution has not drawn my attention to facts or case law, to substantiate the claim. I also reject as an aggravating factor, the claim that a total of nine (9) houses had been burnt down by the prisoner. I make this ruling because the prisoner was indicted for burning down a single house, and he has pleaded guilty to that. The prisoner did not plead guilty to burning down more than one (1) house. In my view, it is therefore unfounded for the defence to include that (i.e., burning down of 9 houses) as an aggravating factor.

14. I find two (2) extenuating circumstances in this case. Firstly, I find that there was provocation in the non-legal sense. Earlier that day on 28 October 1996, people from the rival clan, Suluka, entered the village of the prisoner and set fire to many houses there including the prisoner’s house. Several pigs and chickens were killed as well. Not long after, the prisoner got a burning piece of wood from his burnt down house, and he carried that with him over to the neighbouring village where he used that to set fire onto the bush material house concerned.

15. The second extenuating factor is this. In the record of interview, the prisoner was asked whether he knew that he had broken a law of the country when he burnt down the house. The prisoner responded, and I quote, “No”. I find his response significant. I take into account the fact that, at the material time, the prisoner was a young youth who was 20 years old and who was illiterate with no proper educational background. And I also take into account the fact that the prisoner had lived his life as a villager in his village which is situated in one of the most remote parts of East New Britain where it is only accessible by boat. I also see from the record of interview that the prisoner had fully co-operated with the police. He appeared to have answered questions in the record of interview honestly or truthfully. He admitted to committing the offence when he was asked about the incident, and I note that he gave a detailed account of what had happened in the afternoon of 28 October 1996, and of his involvement. I therefore find his answer to be a reflection of his understanding of the law, which I would regard for this purpose as an extenuating circumstance, that is, that he did not know that it was against the law of the country to burn a house that was made of bush material. I will also give the prisoner the benefit of the doubt. And I therefore find this to be an extenuating circumstance that may be considered by this Court.

16. Both parties regard this case as not amongst the worst type of cases that should warrant the maximum sentence of life imprisonment. I uphold their submissions on this point. I will not impose the maximum sentence against the prisoner.

17. I ask myself this. What then should be the appropriate sentence for this prisoner? I have had the benefit of perusing the case authorities cited by both counsel as well as other similar cases that are reported in the case law in this jurisdiction. I will discuss some of the case law in this jurisdiction whose facts, which I have identified, are similar to the present case. The first case is the case of State v. Kuru Bisok (2007) N5483. The prisoners were father and son. They both pleaded guilty to arson, that is, after they with a group of people, had entered and had burnt down a house that was made of bush material. The Court sentenced the father to six (6) years imprisonment. One (1) day was deducted and the balance of the sentence was suspended subject to imposed conditions. His son received a lesser sentence of four (4) years. One (1) day was also deducted and the balance of his sentence was suspended subject to imposed conditions. The next relevant case in my view is State v. Bart Kiohim Mais (2005) N2811. The co-prisoners were brothers. It was a retaliated act. The prisoners with group of men approached the victim’s house. They poured kerosene to the house and set it alight. The house was burnt to the ground. They each pleaded guilty to arson. Both men were sentenced to two (2) imprisonment. Their sentences were wholly suspended with imposed conditions. The third and final case is State v. Peni Bilak (2005) N2866. The prisoner with a group of men acted in retaliation by burning down the house of the victim. They did that by pouring kerosene and setting it alight. The house was made of bush material. The prisoner pleaded guilty to arson. The prisoner did not express remorse, nor did he provide any restitution for his action. He was sentenced to two (2) years in hard labour without any suspended sentence. The Court noted in its decision that it did not had the benefit of a pre-sentence report and a means assessment report, of the prisoner before its decision on sentence.

18. Based on these cases, I find the starting point for the present case to be four (4) years imprisonment. I will apply the two (2) extenuating circumstances of this case favourably for the prisoner. In my view, this should reduce to a certain extent the severity of the committed offence. I will allow two (2) years to be deducted. The new starting point now is two (2) years imprisonment. I find the mitigation and aggravating factors to be about equal. This means that equal discounts may have to be applied. I will do that. However, I note that equal application of discounts to either increase or decrease the prison term of two (2) years will only revert to the original position which is two (2) years imprisonment.

19. I hereby sentence the prisoner to a period two (2) years imprisonment for his committed offence. I will now consider whether the prisoner should serve his full prison term, or whether his sentence should be partially or wholly suspended.

20. The Community Based Corrections (CBC) has prepared a pre-sentence report and a means assessment report for the prisoner. I have had the benefit of perusing them. The reports recommend probation. The prisoner’s financial position or capacity, however, is poor or lacking, as it is shown in the means assessment report. But I note that the prisoner has expressed his willingness to pay some form of compensation for reconciliation purposes. The defence counsel has handed up to the Court a proposed schedule, that is, as part of his submission for a non-custodial sentence, and the schedule I note takes into account compensation payment.

21. I will partially uphold the recommendations by the CBC. I will allow probation for the prisoner. The prisoner shall, subject to my final ruling on sentence, report to his responsible probation officer on the first Monday of each month, between the hours of 9am and 3pm, for a period of six (6) months. The prisoner shall, during that period, maintain good behaviour and maintain or assist with peace and order at his village.

22. My final ruling is this. I sentence this prisoner to two (2) years imprisonment. I will not allow any deductions for time spent in custody. The two (2) years sentence shall be wholly suspended with imposed conditions. The prisoner shall comply with the probation conditions as I have stated above in my judgment. I decline to order any reconciliation. The first reason is this. I have not had the benefit of hearing or receiving any statements or brief from the probation officer whether it be in the two (2) reports or otherwise, concerning the victims and their positions, particularly concerning their attitudes towards settlement or reconciliation. As I have stated in the past, reconciliation is a two (2) way thing, and it cannot be proposed or considered in isolation by one party with the aid of the Court. Unless there is consent obtained from both sides, Courts, in my view, should not impose or force reconciliation upon the parties either on its own accord or by basing its decision solely on the intention of one of the parties. See cases: State v. Isaiah Iona (2018) N7480; State v. Joe Ngotngot & Eremas Matiul (2016) N6364. If I can also add this. A danger I see is that a prisoner may push for a unilateral reconciliation to evade full punishment or to evade custodial sentence. The second reason is this. I take into account the fact that it has been 23 years from the time the offence was committed. There is a big-time lapse from the date the offence was committed to the date of sentencing. In the normal sense, people will have or have already moved on with their lives. I am not confident that ordering any form of reconciliation now would be a worthwhile course.

23. The prisoner had been on a Court bail of K200 before he absconded bail. Since he had breached his bail conditions, his bail money shall be forfeited to the State.

Length of sentence imposed	2 years
Pre-sentence period in custody to be deducted	Nil
Amount of sentence suspended	2 years
Time to be served in custody	Nil
Conditions:	The prisoner shall, for a period of 6 months, report on the first Monday of each month to his designated Probation Officer in Kokopo. He shall maintain good behaviour and maintain or assist with peace and order at his village for the said 6 months. The probation conditions shall apply immediately so his first physical attendance before the CBC Probation Officer shall commence between 9am and 3pm on Monday 6 May 2019.
Place of custody	Nil

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

National Court of Papua New Guinea

State v Kalal [2019] PGNC 58; N7797 (10 April 2019)