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State v Sua (No. 2) [2022] PGNC 311; N9788 (14 July 2022)

N9788

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 614 & 615 OF 2021

THE STATE

V

JORDON SUA
(No 2)

Madang: Miviri J
2022: 07^th & 14^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Count of Arson 436 CCA – Trial – semi permanent house – Argument Over Smoke – set on fire – destroyed –– Other Serious Criminal Offences Committed leading To – Deliberate Calculated Action – Protection of Home & Dwelling – Protection of Life – Value Of Property Immaterial Way Offence Committed Material – Persistent Attack Pinnacle of – Legislative Intent Heed to – Strong Deterrent Punitive Sentence.

Facts
Accused went to the dwelling house of the victim in the early hours of the morning. He went inside assaulted victim then set his house alit after pouring fuel on it. The house was completely burnt down.

Held
Assaulted Victim.
Chased him out with his family.
Set the house on fire.
Same Transaction.
Concurrent Sentence.
Punitive Deterrent Sentence.

Cases Cited:
Public Prosecutor v Hale [1998] PGSC 26; SC564
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85
Mandatititip v The State [1978] PNGLR 128
Passingan v Beaton [1971-72] PNGLR 206
State v Posanau [2004] PGNC 133; N2642
State v Janguan [2008] PGNC 50; N3363
State v Monalen [2004] PGNC 105; N2677
Thress Kumbamong v The State (2008) SC1017
Setep v The State [2001] PGSC 14; SC666
Aubuku v The State [1987] PNGLR 267
State v Mathew (No 2) [2003] PGNC 5; N2563
Kongian v State [2007] PGSC 45; SC928
State v Yeskulu [2003] PGNC 88; N2410
Simbe v The State [1994] PNGLR 38

Counsel:

D. Ambuk, for the State
N. Katosingkalara, for the Defendant

SENTENCE

14^th July, 2022

1. MIVIRI J: This is the sentence upon Jordon Sua who was convicted of breaking entering and committing assault upon the victim and then setting his house on fire destroying it.
   
2. The facts upon arraignment were that on the 23^rd day of February 2020 sometimes between 3.00am and 4.00am, the Accused with his brother and accomplice Gilman Sua were at Kerema Compound Madang Province. They had gone in search of smoke and approached the house of one Bion Kamba. He refused to sell them smoke. They reacted and broke and entered his house and fought him. They assaulted and injured him with a bush knife on his right hand and on his head before setting his house on fire. It was completely destroyed and burnt to the ground.
   
3. The conviction pursuant to Section 395 (1) (c) housebreaking or Burglary. That section reads:
   

“(1) A person who–

(a) breaks and enters the dwelling-house of another with intent to commit a crime in it; or
(b) having–

(i) entered the dwelling-house of another with intent to commit a crime in it; or
(ii) committed a crime in the dwelling-house of another,

breaks out of the dwelling-house; or
(c) breaks and enters the dwelling-house of another and commits a crime in it,

is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If the offence is committed in the night, the offender is liable, subject to Section 19, to imprisonment for life.”

4. This is an offence that was committed in the night and therefore the sentence due is subject to section 19 imprisonment for life. It is not the most serious offence of its kind to draw the maximum penalty of life imprisonment. But a determinate sentence will be passed. It is aggravated because it is the steppingstone to the Arson that follows from it. And it is committed at night-time in the early hours of the morning when all are asleep within. But are abruptly awoken by the Prisoner and his brother who break into the house. It is the dwelling house of the victim in which he has had to live since the 1990s up to 2000. He is assaulted but there is no medical report to establish the extent of the injuries that he has suffered in the hands of the prisoner. And he has not instigated to draw the offence upon himself. The dwelling house must be protected by sentences that reflect that man must be protected within. Because the right to life section 35 of the Constitution is basic. Here is a family resident within who are made to run out of the house into the neighbour’s house to seek shelter.
   
5. The protection of the dwelling house is emphasized by the Supreme Court in Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998),where 10 years imprisonment was imposed where robbery was committed in the dwelling house. That is a case of armed robbery which has the element of assault in it. And that element is present here in the present offence perpetrated by the Prisoner upon the victim. Therefore, in my view the decision is relevant in the determination of an appropriate sentence here upon the prisoner. This is the general thrust of the legislature set out in the maximum sentence due a prisoner upon conviction, life imprisonment. Hence it is not light matter to break into another person’s house at 3.00am to 4.00am in the early hours of the morning. That is when the slumber of sleep is sweet and no men expects to be attacked in this manner.
   
6. Prisoner upgraded that offence with the offence of Arson when he set the house on fire burning it down to ashes. Arson also draws pursuant to 436, “A person who wilfully and unlawfully set fire to -

(a) a structure whether complete or not; or
(b) a vessel whether complete or not;
(c) a stack of cultivated vegetable produce; or
(d) a stack of mineral or vegetable fuel; or
(d) a mine, or the workings, fittings, or appliances of a mine; or
(e) an aircraft or motor vehicle,

Is guilty of an offence.

Penalty: subject to section 19 imprisonment for life.”

7. It too like the first conviction set out above carries the maximum penalty of life imprisonment for the wilful and unlawful setting of fire upon the dwelling house of the victim. That is what is due the prisoner for the worst case of arson. Here the value of the house is not known so as to properly determine the loss in monetary terms imposed upon the victim who now must build a new house to accommodate his family. And it is not clearly established what the motive is except the assertions of the victim that, prisoner had conspired with the wife of the victim to do what he did. She had sold her body to the older brother in return for what both did to her husband the victim. The brief assertions of the daughter witness is that the schoolbooks, uniform of her small brother were burnt. And the work papers of the father were all burnt down also. He states that they had lived there since the 1990s up to 2000. And no doubt it was home to him and his family regardless of how it was built, what material it was made from to sustain as home to the victim and family. The daughter stated that the brother now lives at Rai Coast with family as there is no house to accommodate. Both She and the father also have been displaced with no home to go to.
   
8. This is an offence where the prisoner has persisted in the attack against the victim in the course of that night. Because the evidence is that he came with his brother earlier on in the night about 10.00pm to 11.00pm, he argued with them, and returned again in the early hours of 3.00am and 4.00am and assaulted him. He ran out of the house to Mark Kamai’s house from where he stood and watched him poured petrol fuel inside and outside house. Then strike a match and set it on fire burning it down destroying it. It is without any justification to persist to culminate in the Arson. Persistent defiance without heed of the rule of law must draw a stern deterrent and punitive sentence against the prisoner and any other who behaves in like manner. He is a repeat offender having been convicted of the offence of breaking entering and committing assault upon the same victim at the same time. His conduct has no place in a civilized society. And must be certainly shown the door out with stiff sentences against. The facts and circumstances of detailed of the present warrant an immediate strong custodial term.
   
9. In this regard I take due account of Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85 particularly the principles of Totality in the sentence. Here I concede that the sentence for the crime of Breaking Entering and committing a crime inside the subject house is committed in the same transaction. The sentence will be concurrent given. It is upon the same victim though a different crime. But its commission stems from the first crime. That is why both will be one transaction and so concurrent. It will be served with the other offence at the same time.
   
10. The breaking entering was in furtherance of the assault that was committed on the victim and led eventually to the arson. In that sense it is an aggravated offence and the prisoner was armed with a bush knife at night-time that he used upon the victim who sustained injuries on his right hand and on his head, extent of which is not clear. The severity of the offence drew the Supreme Court to confirm the sentence on appeal of 16 months and 20 months IHL Mandatititip v The State [1978] PNGLR 128 (3 May 1978). That was for the offence of breaking entering and stealing. Here the crime committed is assault on the victim. And the crime is a prevalent crime that has not eased, nor desisted with the imposition of strong terms. Here is evidence of its prevalence. The prisoner is not deterred that he would be caught by the law. He persists to the eventual commission. It is my view that the sentence should reflect accordingly. He is a first offender aged 27 years old. He was living at the Kerema Compound here in Madang. An unemployed man he had no history of employment and was single. In allocutus he had apologised and was remorseful for the offence. But it was a deliberate offence that he had committed.
    
11. His case is not likened to Passingan v Beaton [1971-72] PNGLR 206 where the 17-year-old appellant was sentenced to 6 months imprisonment cumulative for six separate offences. The court upheld the appeal and reduced sentence to the time of 2 years that was spent in jail. It remarked that the sentence originally imposed was excessive. In State v Posanau [ 2004] PGNC 133; N2642 (31 August 2004) 4 years IHL was imposed where the prisoner committed break enter and stealing to get food. A similar sentence was imposed by this Court in State v Janguan [2008] PGNC 50; N3363 (24 April 2008) where prisoner broke into the house of a soldier at the barracks and stole clothes, mobile phone, and ammunition magazine. In State v Monalen [2004] PGNC 105; N2677 (22 September 2004) 10 years IHL was imposed for the commission of breaking entering and stealing contrary to section 395 (1) (c) of the Code as here. It attempted to set out a guideline that this was not a mere breaking and entering which would draw 3 to 6 years imprisonment. Or breaking entering and stealing drawing 7 to 10 years, and further still where substantive valued properties were stolen justifying 11 to 14 years imprisonment. And even 14 to 17 years for the offence committed in the night.
    
12. It is useful to set out a guideline but the discretion given by the legislature upon the Courts must not be shackled as each case is dependent on its own facts and circumstances Thress Kumbamong v The State (2008) SC 1017. Here the offence was notable committed to further another criminal offence of assault upon the victim. And still further another criminal offence of Arson. It is therefore serious in view of the fact that all the offences are committed within and against the dwelling house of the victim. The Supreme Court has confirmed this in Don Hale (supra) consistent with Setep v The State [2001] PGSC 14; SC666 (18 May 2001) where life years imprisonment for Rape abduction by a convicted murderer who had escaped and committed the offence at night-time after breaking into the house of the victim. He also committed the crime of robbery within and was armed with a dangerous weapon a homemade gun.
    
13. It is trite that where the offence is aggravated the sentence increases Aubuku v [1987] PNGLR 267 (29 July 1987). And in my view the facts set out above demonstrate that fact here. This is an aggravated conviction of breaking entering and committing a crime within the dwelling house of another. It must draw that fact in the sentence that is passed upon the offender. Counsel has urged the sentence of 10 years for that fact. This is not a guilty plea but a trial and therefore must be proportionate considering. Time money resources has been exhausted to arrive at the verdict. The Sentence must reflect that fact and so the proportion time given is 12 years IHL for the crime of breaking entering and committing an assault in the dwelling house pursuant to section 395 (1) (c) against the prisoner on count 1 on the Indictment. And I so impose that upon the prisoner.
    
14. In respect of Count 2 the conviction of arson of the dwelling house of the victim Bion Kamba given the observations set out above, it is a very serious offence. It was a dwelling house that had the occupants assaulted and chased out of the house. There was no regard that these were human beings like the prisoner who were not respected in their home at 3.00am to 4.00am in the early hours of the morning. It is not material whether it was made of the most expensive material or the cheapest material, what was underlying and fundamental was that it was their home. It was where they lived and dwelt from. That is why they no longer have the school materials and uniform of the son who is now living with relatives away from the father and sister. And the work papers of the father victim have been burnt to ashes. He cannot find another job now. He has been made a destitute by the actions of the prisoner. It was a deliberate and calculated act of pouring petrol after the occupants were chased out of the house with the commission of criminal offences did the prisoner commit the offence. It is therefore serious as viewed by State v Mathew (No 2) [2003] PGNC 5; N2563 (29 October 2003) where it was a mob attack with arson resulting drawing sentences in the vicinity of 15 to 13 years imprisonment IHL. Which was watered down by the supreme Court on the principles of totality to 5 years IHL in Kongian v State [2007] PGSC 45; SC928 (3 September 2007).
    
15. In my view the facts circumstances warrant a sentence other than that, including the prevalence of the offence. There must be deterrence and punishment for the crime because the result of the crime is that the victims have become displaced and cannot draw back their life as the son is living apart from the father and daughter. The father cannot secure a job with his papers that were destroyed in the fire. He has been tormented by the actions of the prisoner no fault of his. And is continuing to live like that of the present. There was nothing on his part that warranted the commission of the offence on him by the prisoner. It was a deliberate act which warrants a stern and punitive sentence, State v Yeskulu [2003] PGNC 88; N2410 (24 April 2003) bearing out 10 years imprisonment. But would be increased with the aggravation within. And this case has aggravating features that sway other than that sentence given. Sentence must be proportionate to the gravity of the crime due the prisoner on his own facts and circumstances, Simbe v The State [1994] PNGLR 38 (2 March 1994).
    
16. I consider an appropriate sentence given the aggregate of all above, a sentence of 14 years imprisonment as appropriate for the crime of arson pursuant to section 436 committed upon and against Bion Kamba by the prisoner. And I so impose that upon the Prisoner. A man’s house and dwelling is his life he draws from it for his life. He has the right to his life together with his family. He will not be treated less than a human being under the eyes and realm of the Constitution.
    
17. Considering the principles of totality, the Prisoner will serve the sentence 14 years IHL with that 12 years IHL concurrently imposed for the crime of Breaking Entering and Assault pursuant to section 395 (1) (c) of the Code.
    
18. The sentence is therefore 14 years imprisonment IHL to be served minus the time he has spent on remand. A warrant will issue accordingly.
    

Ordered Accordingly

_________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant