N10659

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1266 OF 2021

THE STATE

V

XAVIER MURUBI

Madang: Miviri J
2024: 15th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – Arson 436 CCA – Trial – Bush Material house –family conflict – set on fire – destroyed – Value Not disclosed – No Remorse – Prisoner At Large Time of Sentence – Defiance of the Law – Strong Deterrent & Punitive Sentence – First time Offender – Prevalent Offence – Protection of Property & Life – No MAR or PSR – Persistent Defiance of Rule of Law – Deterrent & Punitive Sentence.

Facts

Prisoner went to the dwelling house of his mother-in-law and set it on fire destroying it completely with all inside.

Held
Strong Deterrent Sentence.
Law into own hands.
Serious prevalent offence.

Cases Cited: 
State v Yeskulu [2003] PGNC 88; N2410 
Kongian v State [2007] PGSC 45; SC928 
Golu v The State [1979] PGSC 9; [1979] PNGLR 653 
Tardrew, Public Prosecutor v [1986] PNGLR 91
Public Prosecutor v Hale [1998] PGSC 26; SC564 
Polau v State [2013] PGSC 6; SC1231 
Kongian v State [2007] PGSC 45; SC928 
State v Neto [2022] PGNC 393; N9921 
State v Mathew (No 2) [2003] PGNC 5; N2563 
Kumbamong v State [2008] PGSC 51; SC1017 

Counsel:
D. Ambuk, for the State
C. Momoi, for the Defendant

SENTENCE

15th February 2024

1.	MIVIRI J: This is the sentence after trial of Xavier Murumbi of Nagarum village, Yangoru-Sausia District, East Sepik Province for Arson pursuant to section 436 of the Code.

2.	He was convicted on the 22nd July 2022 and was not immediately sentenced as he made no appearance from Bail after the verdict, so that sentence could be passed upon him for the conviction. He never appeared from Bail granted. It was forfeited to the State. And bench warrant was issued for his arrest since 21st July 2022. Which is outstanding yet to be executed. It is no fault of anyone that he is at large. He by his own conduct since that day now for two years made it impossible to deliver sentence in his presence. By his conduct it is appropriate that sentence follow the conviction. And this is substantiated by the evidence on oath of the Officer in Charge of Criminal Investigations Madang Police, Detective Sergeant Martin Howley, that his attempts to secure custody of the prisoner has been unsuccessful. He has gone to the end of the airport where the prisoner’s parents reside, that is unsuccessful. It maybe that the prisoner is out of the province. 

3.	This is evidence in my view that explains the prisoner of his own volition abstains appearance. It means sentence can proceed in his absence. The State has in its powers done all to ensure he appears to answer sentence. It therefore warrants the Court to process his sentence in law. Here the Prosecution have submitted with written submission handed in court leaving sentence to the discretion of the Court. And it would not be wrong to follow intended tariff and range in State v Yeskulu [2003] PGNC 88; N2410 (24 April 2003), 10 years was proposed as arson of a dwelling house. It is not wrong to go along that path and the defence have also in their submissions filed on the basis of Kongian v State [2007] PGSC 45; SC928 (3 September 2007), it is to be assessed on the facts to arrive at proportionate term. I take due consideration of both arguments including the authorities relied on as relevant to the determination of this sentence against the prisoner. But because of the fact that he is a first time offender it is not straight 10 years, but in the vicinity of 8 years. On the other hand, State has urged that he has absconded, and this must be reflected in the sentence due him. Materially because he has by that fact defied the law and its process. I will pass sentence now upon the prisoner for the crime of arson committed.

4.	For the purposes of sentence, it is not necessary to recount the facts as these are adequately covered in the Judgement on verdict. It suffices to recount that on Sunday the 12th of August 2018 at about 6.00am in the morning at Sagalau blocks, Madang, the Accused went to the bush material dwelling house of Helen Mongati and set it on fire destroying it completely with all the properties that were inside to the value of K 8291.80. He had no lawful excuse nor justification for setting it on fire and destroying it. He contravened section 436 of the Criminal code. Which section is in the following terms.

5.	Which is in the following terms, “A person who wilfully and unlawfully set fire-			(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.”

6.	So, the prisoner is liable to the maximum of life imprisonment. Which is now trite that the worst case of arson will draw that: Golu v The State [1979] PNGLR 653. Here in view of all the circumstances, and particularly the facts establish, a determinate term of years will be imposed for the crime. Which will be after weighing the mitigating and aggravating features of the case. Including if there are any extenuating circumstances.

7.	Notable is the fact that the prisoner is a first time offender who has been found guilty after trial. He was 29 years old at the time of the record of Interview on the 05th March 2021. This is 2024 which is three years later and so he will be 32 years old. He is a married man with two children originally from Ainat, Yangoru Sausia, East Sepik Province. He was educated at the Kusbau Primary School from grades 1 to 8. Then in Karamui High School Chimbu in grades 9 to 10. He did some technical training at St Joseph Minor Tevat Catholic in Gembogl. And was employed with Galeo South Pacific Timbers. These are the details that are in the antecedent report tendered into court after his conviction. It is also established that he is married to the daughter of the complainant and that the crime was committed over dispute over money spent to build that dwelling house. He is a resident of Madang and committed the wrong against his mother-in-law. No doubt there is room for reconciliation but that is not the subject of evidence that is before me. It will remain as it is without evidence to entail sentence.

8.	But it is a very serious offence because even a bush material house is very hard to construct. And here the cost of that bush material house is K 8, 291. 87 all belonging to Helen Mongati. Which sum she has detailed out in her statement. It is a dwelling house as she lived there when she came out away from Madang town. There was no one in the house at time it was burnt to ashes. Breaking the law, taking the law into one’s own hands as here, is not a light matter. The materials led do not depict a maximum sentence of life following. But a determinate term of years in jail. Because there is no material filed into Court on the basis of which a sentence other than a custodial sentence term will be considered. He does not in this regard fit what is set out by Tardrew, Public Prosecutor v [1986] PNGLR 91. There is no material underlying that part of the sentence be suspended. It must be supported by material to exercise that discretion, Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998).

9.	Here is a prisoner of the State who has simply run away immediately after the conviction. He did not give into the rule of law. He has showed disrespect and contempt of the rule of law by his actions overt since that day up to today’s date. He did not honour his commitment whilst on bail. He has breached that order and as a result the moneys have been forfeited. He has imposed upon the State further expenses in the Court coming a second time just to sentence him. It cannot be in his favour. In my view this is one serious factor that calls for imposing a strong and deterrent sentence that will reinforce that the rule of law remains supreme. 

10.	Guilty pleas have drawn sentences with suspended terms. For instance, in Polau v State [2013] PGSC 6; SC1231 (8 May 2013) 5 years was imposed for a bush material house set on fire. The appellant pleaded guilty to, and He was sentenced to 5 years imprisonment in hard labor of which three years was suspended. Similarly, in Kongian v State [2007] PGSC 45; SC928 (3 September 2007) the sentence of 13 and 15 years both were reduced to 3 and 5 years because they were all bush material houses burnt down. Here is a trial on a bush material dwelling house valued at K 8, 291. 87 lost forever to the victim. And the prisoner is in no position to make good the offence. Contrasted further is State v Neto [2022] PGNC 393; N9921 (22 September 2022) K 184, 506.00 permanent house was burnt down in the fire by the prisoners who were in company. They chased the victim and his family and set fire to the house whilst the victim was inside. The sentence after trial was 10 years IHL.

11.	There is no violence directed at the victim complainant. The fire is lit when she is not around and so it is not likened to the violence seen in Neto (supra). And the value of the house is not as excessive as that, so the sentence here will not go past that sentence. It is not a tribal attack with arson compounded, State v Mathew (No 2) [2003] PGNC 5; N2563 (29 October 2003). So, 13 years and above will not entail the prisoner. But times have lapsed, and the offence is still prevalent as ever. In my view therefore each case will draw what is due by its own facts and circumstances. The crime must be sentenced given its facts and circumstances. Tarriff and range is one of the matters to be considered, because it would be legislating to confirm to tariff and range: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). 

12.	This is a case of where the sentence must be within 10 years imprisonment. Comparably it should be there because of the escape from the process that must be compensated for the State to be able to find him and bring him to detain serving the sentence now imposed. He has not heeded the process of law nor respected its process and it is warranted that the sentence must reflect. In my view the fair and proportionate sentence for the crime of arson committed by the prisoner Xavier Murumbi is 10 years imprisonment IHL. And I so impose that sentence upon him. I make no orders as to deductions for time in custody. He was on bail and no concession will be given. He will serve that sentence upon execution of that bench warrant now outstanding.

Ordered Accordingly
__________________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant