N8454

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 1123 & 1124 OF 2017

THE STATE
v
CALISTOS KADOKA

&

SAMUEL KADOKA

Kimbe :  Numapo J
2020:	12th, 19th & 20th March

CRIMINAL LAW – Particular offence – Arson s. 436 (a) Criminal Code – Plea of Guilty - Aggravating & Mitigating factors – Restitution – Sentencing Discretion – Non-Custodial Sentence.

Held:

(i)	Sentence imposed by the Court must reflect the purposes of sentencing such as deterrence, rehabilitation, restitution and retribution. 

(ii)	In arson cases one of the considerations should be the restitution of properties lost through arson in addition to any other statutory penalty imposed by the court.

(iii)	Imprisoning the offender without any form of restitution or compensation for the losses suffered does not give the victim a sense of justice as it does not replace what has been lost.

(iv)	When ordering restitution, it is imperative that the Court should carefully assess the extent of the damages caused and the properties lost before making the appropriate orders for restitution.

(v)	Prisoners sentenced to Four (4) years imprisonment to be wholly suspended with conditions. 

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92. 
Manu Kovi v The State (2005) SC 789 
The State v Iori Veraga (2005) N2921
The State v Ipu Samuel Yomb [1992] PNGLR 261
The State v Andrew Yeskulu (2003) PGNC 88; N2410
Emil Kongian & Ors v The State; SCRA No. 92 of 2003
The State v Undicki N7839 (2019) 
State v Sengi N6087 2015 (Unreported) 
The State v Bart Kiohin Mais (2005) N2811
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91  
State v Pianus Kiwo & Tovili Kula CR. Nos. 1103 & 1104 of 2019.

Counsel:

A. Bray, for the State
D. Kari, for the Defence

SENTENCE

20th March, 2020 

1.      NUMAPO J: This is a decision on sentence. The Prisoners CALISTOS KADOKA and SAMUEL KADOKA of Gavaiva village, Hoskins, WNBP both pleaded guilty to four (4) counts of Arson pursuant to Section 436 (a) of the Criminal Code and were convicted accordingly. The State also invoked Section 7 of the Criminal Code.

A.	BRIEF FACTS

2.     The two prisoners are brothers. The facts were that on the 24th March 2016 at Gavaiva village, WNBP the two accused persons and other members of the community attacked Henry Kaipu Snr and his family accusing them of performing sorcery that caused the death of one of their relatives. They set fire to a Chicken Coop and the main family house belonging to Henry Kaipu Snr; a Kitchen/ Dwelling house belonging to Bartley Kaipu. Four days after on the 28th March 2016 another fight took place in which a dwelling house belonging to Henry Kaipu Jnr was burnt down. 

3.     All the buildings were burnt to the ground except for the main family house which was partly burnt. The total damage is estimated to be around K54, 000.00.

B.	THE LAW

4.     Section 436 (a) - Arson

A person who wilfully and unlawfully sets fire to -
(a)	a building structure, whether complete or not; or
(b)	a vessel, whether completed or not; or
(c)	a stack of cultivated vegetable produce; or
(d)	a stack of mineral r 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.

C.	APPROPRIATE SENTENCE 

5.     An appropriate sentence is one that is determined from the factual circumstances of the case being; the aggravating and mitigating factors and the extenuating circumstances. The prevalence of the particular offence is also a consideration that is taken into account.  All these have to be properly weighed up in deciding the appropriate sentence. See: State v Iori Veraga (2005) N2921.  I wish to also add that each case should be determined on its own merits based on its peculiar circumstances such as the nature of the offence itself, the circumstances under which the offence was committed, the type of existing relationship (if any) between the  perpetrator and the victim at the time of the offence and other specific considerations that are worth noting in deciding the appropriate sentence that not only fits the crime but also brings about some sense of justice to both the perpetrator and the victim.    

6.     The Court under section 19 of the Criminal Code has a wider sentencing discretion to impose a lesser sentence including non-custodial sentence in place of the maximum penalty prescribed by law. Any sentencing guidelines or tariffs set for a particular offence does not take away this unfettered discretion of the court.

D.	SENTENCING TREND ON ARSON 

7.     Maintaining consistency in sentencing is very important to establish an appropriate sentencing trend or regime in a particular offence so that like cases are treated alike to avoid disparities and inconsistencies in sentencing. 

 8.     A number of case laws were cited to provide some guide to the Court to impose an appropriate sentence that is on par with the current trend. I refer to some of them below:

1.	The State v Ipu Samuel Yomb [1992] PNGLR 261

9.     The offender pleaded guilty to one count of arson in setting fire to the house occupied by his sister in law and her family. The arson was pre-planned. The door was locked from the outside by the offender making it difficult for the occupants to escape. The offender did that as an act of payback.  It was a deliberate and reckless act putting lives at risk. Offender was sentenced to 7 years.  

10.     In this case Doherty J (as she then was) tried to formulate some guidelines which she considered relevant when exercising her sentencing discretion in the case before her. She said at p.263:

“I consider the following to be relevant aspects in the case before me:

(i)	   The deliberate or very reckless putting of lives at risk;
(ii)	    The deliberate pouring of kerosene and setting fire to the roof, knowing that people were inside;
(iii)	The deliberate locking of the door to prevent escape by the occupants;
(iv)	The deliberate cold-blooded planning of the offence;
(v)	      The value of the house and its content;
(vi)	The complete lack of provocation offered to the defendant by the occupants and their children.”

2.	The State v Andrew Yeskulu (2003) PGNC 88; N2410

11.    The offender burnt down an elementary school building built of bush materials housing three classrooms. Land dispute was the reason for burning down the building. Teaching materials were destroyed and student denied their education. The presiding judge suggested 10 years imprisonment as the starting point for burning down dwelling house or buildings housing public institutions such as schools or hospitals and the like. It was further suggested that starting point for hauswin or garden house should be 5 years.

12.     Kandakasi J (as he then was) suggested five categories under which arson cases could fall as follows:

(i)	     A dwelling house with people inside;
(ii)	     A dwelling house without any occupants;
(iii)	Public institutions such as schools, hospitals or offices with occupants inside;
(iv)	Public institutions such as schools, hospitals, or offices without occupants inside;
(v)	     A house wind or a garden house or a run down and deteriorated or incomplete structure.

3.	Emil Kongian & Ors v The  State; SCRA No. 92 of 2003

13.     The appellants were sentenced to a total term of between 13 and 15 years each for four counts of arson. They appealed against the conviction and sentence. Appellants argued that they were provoked which the trial judge failed to take into account. The Supreme Court held that provocation is not a defence to arson. However, the houses burnt down were not dwelling houses as they were situated in the gardens commonly referred to as garden houses. The sentences were quashed and substituted with sentences of 3 – 5 years for each offender.

4.	The State v Undicki N7839 (2019) 

14.     This was a group attack on another village in which 54 houses were burnt down following a land dispute. The offenders were upset when the complainants failed to turn up for a scheduled mediation over a land dispute. The Court imposed a head sentence of 10 years of which 4 years were suspended on conditions. The Court could not order compensation as proper materials quantifying the losses were not available, neither in the file nor in the pre-sentence reports.

5.	State v Sengi N6087 2015 (Unreported) 

15.     The court held that the starting point for sentencing for arson is 6 to 7 years imprisonment. The court applied the guidelines set out in re: Ipu Samuel Yomb (supra). 

6.	The State v Bart Kiohin Mais  (2005) N2811
16.     The prisoners pleaded guilty to arson for burning down a semi-permanent dwelling house made of corrugated iron roof and rest with bush materials. Household goods and clothes were also destroyed. Sentences of 2 years was imposed on each offender which was wholly suspended with conditions imposed. The PSR was also favourable to the prisoners.

17.     The aggravating and mitigating factors and circumstances are as follows:

E.	AGRAVATING FACTORS 

(i)	The retaliation on a suspicion of sorcery is not proportionate to the attack.
(ii)	 A number of houses were burned down comprising both dwelling and non-dwelling houses.
(iii)	Personal effects and properties were lost.
(iv)	No reconciliation was made and no attempts were made for restitution.
(v)	Prevalence of the offence.

F.	MITIGATING FACTORS

(i)	Prisoners pleaded guilty early
(ii)	Both are first- time offenders
(iii)	Both expressed remorse and are willing to pay compensation.
(iv)	Both have no prior convictions.

G.	PRESENT CASE

18.     The facts clearly showed that this was a deliberate attempt on the part of the offenders to set the buildings on fire after they suspected the complainant and his family of performing sorcery which resulted in a death of one of the villagers. Couple of days later that a fight broke out and the offenders along with the others proceeded to burn another house belonging to the complainant’s son Henry Kaipu Jnr.

19.     Mr Bray for the State submitted that the unlawful conduct and /or action(s) of the prisoners in burning the houses has left a family with no place to live in. In that regard, the aggravating factors and circumstances outweighs the mitigating factors and submitted for starting point of 10 years imprisonment given that a number of buildings were burnt down. Counsel submitted however, that the present case does not fall under the category of worst type offence and should not therefore, attract the maximum penalty prescribed by law on Arson under section 436 (a) of the Criminal Code. Counsels submitted that it is trite law that the maximum penalty in any offence is reserved for the worst type offence as enunciated by the Supreme Court in Goli Golu v The State [1979] PNGLR 653 followed by Avia Aihi v The State (No 3) [1982] PNGLR 92.  

20.     State seeks head sentence of 10 years imprisonment with some orders for restitution to enable the victim and his family to rebuild their homes and lives again.

21.     Mr Kari for the Defence submitted that the Court should consider imposing 4 years imprisonment to be wholly suspended upon payment of restitution. 

H.	ALLOCUTUS

22.    The prisoners told the Court the following in their respective allocutus:

(i)	Calistos Kadoka

“Your Honour, I am a teacher in the Elementary School and am married with a child. My parents are very old. My father is very old and fragile and slowly going senile. I ask the Court to have mercy on me and put me on probation so I can look after him. Thank you, that is all.”

(ii)	  Samuel Kadoka

“I am married with 3 children and all of them are girls. My parents are very old. I ask the Court to have mercy on me and give me probation. Thank you, that is all.”

I.	PRE-SENTENCE REPORT

23.    The Pre-Sentence Report (PSR) assessed the prisoners to be suitable candidates for probation and recommended that the prisoners make restitution and pay compensation to the victim and his family and reconcile with them. The victims and the perpetrators are all related and come from the same village and it is imperative that peace and order be restored for their continued and ongoing relationships in the long term. It is also the desire of the victim and his family to be compensated for the losses they suffered. 

J.	DECISION

24.     I suggest that the following considerations are to be taken into account when deciding what should be the appropriate penalty in arson cases:

25.     Firstly, in arson cases one of the important considerations should be restitution of properties lost through fire in addition to any statutory penalty imposed by the court. In most cases, the victim would expect that some form of restitution is made to replace what was lost. Imprisoning the offender without any form of restitution or compensation does not give the victim any sense of justice at all. In some instances, the property could be lost forever especially when it is not insured hence, permanently depriving the owner of his house or property. It makes it even worse when the victim does not have the money to rebuild his house lost through fire. Restitution in my view, is a must and should be made mandatory as part of the sentence imposed to restore the victim back to his original position or at least somewhere closer to it, whatever the case might be. See: State v Pianus Kiwo & Tovili Kula CR. Nos. 1103 & 1104 of 2019. 

26.     Secondly, in a situation where the victim and the offender all come from same the village or community like in this present case, one of the important considerations is that whatever the decision the court makes must be one that promotes peace and harmony within the village or the community. In that regard, reconciliation and restitution is regarded as important in maintaining the on-going relationship between the victim and the offender in the long term in cases like the present case where the victims and the offenders all come from the same village. 

27.     Thirdly, when ordering restitution or compensation, it is imperative that the Court carefully assessed the extent of the damages caused and the properties lost before making the appropriate orders for restitution. The Court should insist on getting an assessment report from an independent Valuer to assist in quantifying the extent of the losses suffered. For example, a permanent house may cost more than say a house built entirely of bush materials or a building made of part permanent materials and part bush materials. The cost of a dwelling house is greater than a house win for example. The Court must be on guard against those who wants to use the court to profit from their losses. Victims are only entitled to what they lost, nothing more and nothing less.

28.      Finally, the offender must be given every opportunity to make restitution. It does not make any sense or serve any useful purpose to incarcerate the perpetrator and in the same breath order him to pay restitution. Offender must be given the chance to find or raise the money to make restitution. The opportunity to do so is not available if the offender is in prison. In that regard, non-custodial sentence seems more appropriate. The Court may also consider part custodial and part non-custodial sentence where appropriate so that the offender also spend time in prison for his wrong doing. The Court may also order the offender to build a new house to replace the one that was burnt down at his own expense and cost including free labour as a form of punishment. The Court has a wide discretion under section 19 of the Criminal Code to consider all these options. 

29.     I agree with Counsels, taking into account the factual circumstances of the case, that this case does not fall under the category of worst type offence to attract the maximum penalty prescribed by law. Furthermore, the peculiar circumstances of the case demands that reconciliation and restitution is considered along with the other penalties to be imposed by the court.

30.     The current sentencing trend on arson as reflected in the case laws cited so far, suggested that an imprisonment term of between 4 to 6 years seems to be the current trend on sentence on arson. It is also noted that in most cases, the offenders were ordered to make restitution or pay compensation to the victims.

31.     In the present case, the victim and his family are more interested in rebuilding their houses and lives again following their losses. This is their ultimate priority as they need to have a place to live in and call it home. In the circumstances, I considered suspended sentence as most appropriate in the present case as it would promote restitution and restoration Accordingly, I adopt and apply the principle on suspended sentence enunciated in Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91.

K.	ORDERS

32.     I make the following Orders:

(i)	I sentenced the Prisoners each and severally to Four (4) Years IHL.

(ii)	In the absence of a proper assessment report quantifying the actual losses suffered and proper receipts of materials and household items purchased, I order that the Prisoners each and severally pay a total sum of K46, 000.00 as restitution to the victims for the loss of their home. Each Prisoner is to pay an equal amount each totalling to K46, 000.00.

(iii)	I further order that the Four (4) years imprisonment term to be wholly suspended upon the payment of the restitution and that the Prisoners are be placed on Two (2) years probation with strict conditions to be supervised by the Probation Office.  

(iv)	I further order that the payment of restitution or compensation be completed within four (4) months from the date of this Order to be witnessed and supervised by the Probation Officer, Village Police and the Community Leaders of Gavaiva village, Hoskins. 

(v)	Failure to pay the restitution within 4 months, the Prisoners will be taken into custody to serve their full term of four (4) years IHL.

(vi)	Bail monies to be refunded forthwith.

Orders Accordingly
Public Prosecutor : Lawyer for the State
Public Solicitor   : 	Lawyer for the Defence