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State v Minai [2025] PGNC 265; N11370 (14 July 2025)

N11370

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 27 OF 2025

BETWEEN
THE STATE OF PAPUA NEW GUINEA

AND
PETER MINAI
Offender

TARI: KOSTOPOULOS, J
18, 23 JUNE, 14 JULY 2025

CRIMINAL LAW- Plea of guilty to Arson – Section 436(a) of the Criminal Code Act - Burning of mother’s dwelling made of bush material in the village – Admissibility of depositions on sentencing – Application of Yalibakut v State considered – Approbation and reprobation in conduct of counsel in the use of tender of depositions.

SENTENCING – Offender sentenced to imprisonment for 3 years and 6 months -Principal victim is the offender’s mother – Multiple victims are the family members residing in the home – Objective seriousness – Offender 21 years old – General deterrence.

Cases cited
CL v R [2014] NSWCCA 196
Codrington v Codrington [1875] UKLawRpHL 21; [1875] LR 7 HL 854
Commonwealth v Verwayen [1990] 170 CLR 394
Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320
Goli Golu v The State [1979] PNGLR 563
Hitachi Pty Limited v. O’Donnel Griffin Pty Limited [2008] Adj.LR 06/17
Kongian v The State (2007) SC928
Lawrence Simbe v State [1994] PNGLR 38
Polau v State [2013] SC1231
PT Building Services Ltd v Rok Build Ltd [2008] EWHC 3434 (TCC)
R v Crowley [2004] NSWCCA 256
R v Harrison [2001] NSWCCA 79]
Redworth Construction Ltd v Brookdale Healthcare Ltd [2006] EWH 1994 (TCC)
State v Ipu Samuel Yomb [1992] PNGLR 261
State v. Ame [2024] N10915
State v. James Gurave Guba [2000] N2020
The State v Calistos Kadoka & Samuel Kadoka (2017) N8454
The State v Kamotau (2016) N6142
The State v Pianus Kiwo & Tovili Kula (2019) N1103 & N1104
The State v Sengi (2015) N6087
The State v Tardrew [1986] PNGLR 91
The State v Yeskulu (2003) N2241
The State v. Yakal [1988-1989] PNGLR 129
VACC Insurance Co Limited v. BP Australia Ltd [1999] NSWCA 427; (1999) 47 NSWLR 716
Yalibakut v. The State [2006] SC890

Counsel
Mr. P. Tengdui for the State
Mr. V. Ngibe for the offender

Revised: 18 & 23 June 2025, & 14 July 2025

JUDGEMENT ON SENTENCE

Overview and Remarks on Sentence

1. KOSTOPOULOS J: On 18 June 2025, the offender, who is now 21 years of age, pleaded guilty to the charge of wilfully and unlawfully setting fire to a building namely a house being the property of Kama Mulungu pursuant to section 436(a) of the Criminal Code Act 1974 Chapter 262 (CCA).
   
2. The court accepts his plea of guilty.
   
3. The offence is a serious offence that carries with it the penalty of imprisonment for life subject to section 19 (a) where the CCA permits a Court to sentence the offender to imprisonment for any shorter period as the facts and circumstances permit in the discretion of the sentencing judge.
   
4. The offence committed consists of a single act committed by the offender on 26 February 2024 at a place known as Dauli Village, in the Hulia/Komo District of the Hela Province in the Highlands of Papua New Guinea.
   
5. Admitted into evidence are the brief facts that the offender, by agreement between counsel for the offender, Mr. Ngibe, counsel from the Office of Public Solicitor and counsel for the State, Mr Tengdui, counsel from the Office of the Public Prosector, constituted the violation of section 436(a) of the CCA beyond reasonable doubt.
   
6. The Court then read the brief facts to the offender to which he agreed.
   

Brief Facts

“The State alleges that on the 26th February 2024, between the hours of 9:30 am and 10:30 am, the accused Peter Minai was seen at Dauli Village, within the Hulia/Komo District of the Hela Province.

At the time, the accused (sic) mother, Kama Mulungu, left her house and went to do community work at their local school.

After she left the house, the accused went to the victim’s dwelling house made of bush material and set fire to it with all the victim’s and her other family members’ properties inside. After setting fire to the house, the accused was on the run until he was caught by relatives and handed to police.

When questioned by the police the accused admitted to setting fire to the house, thus contravening Section 436(1) of the CCA.

The State alleges that the accused wilfully and without lawful justification set fire to the bush material dwelling house, thus contravening Section 436(1) of the CCA

These are the facts.”

7. The court relies upon the agreed facts admitted by the offender that the following evidence I find is proven by the necessary standard of proof of beyond reasonable doubt:
   
   1. On the morning of 26 February 2024, the offender was at Dauli Village in the Hulai/Komo District in Hela Province.
      
   2. The victim to the offence committed by the offender is the offender’s mother.
      
   3. The victim left her house in Hulai/Komo District and had left her house unattended to work at her local school.
      
   4. The house was made of bush material.
      
   5. Whilst the victim was absent from the house, the offender went to the victim’s house and set fire to it.
      
   6. The house contained personal belongings and items personal to both the victim and her family.
      
   7. After setting fire to the house, the offender fled the scene of the fire subsequently being caught by local relatives of the offender and the victim.
      
   8. The offender was handed over to the police by the relatives of the victim.
      
   9. The offender was questioned by police and freely admitted that he set fire to the house.
      
   10. The offender was then arrested and charged with the present offence.
       
8. The State tendered into evidence the totality of the depositions representing the evidence leading to the conviction of the offender without objection or qualification by counsel for the offender for the court to consider in sentencing the offender.
   
9. The purpose of the depositions being tendered as evidence to support the prosecution of the offender is to satisfy the Court that the evidence supports the agreed facts.
   
10. The Court is satisfied that the evidence in the depositions establishes the offence committed by the offender beyond reasonable doubt.
    
11. The documents in evidence consist of the conventional categories of documents in criminal matters, namely:
    
    1. The committal proceedings in the District Court at Tari;
       
    2. The police court file, police brief, proof of service, information, summary of facts and police statement.
       
    3. Witness statements which include statements from the victim, the victim’s daughter who is also the older sister of the offender and other witnesses.
    4. The record of interview between the police and the offender conducted in the Pidgin language then translated into the English language are both dated 20 May 2024 (which remain unsigned and not adopted as true by the offender).
       
    5. The antecedent report of the offender marked as a separate exhibit on sentencing.
       
12. I will deal separately with the issue of the evidence referred to above further in the judgment relevant to the appropriate sentence.
    
13. There are also facts leading to the offence committed by the offender on 26th February 2024 in the witness statements contained in the depositions that I have read.
    
14. The obvious victims to the offence are the offender’s 45-year-old widowed mother and the eight (8) children she cares for in the dwelling before it was destroyed in the fire caused by the acts of the offender.
    
15. In addition, there is evidence in the depositions of unproven facts from the mother including the facts that she has observed the offender to use marijuana which caused the offender to be affected in his demeanour after he smoked cannabis.
    

The Admissibility of the Deposition Evidence on Sentencing

16. The hotly debated question raised by the offender’s counsel in arguendo was whether the victim’s observations contained in the witness statements should be considered by the court in sentencing as part of the matrix of facts leading to the offence outside the agreed facts.
    
17. Counsel quite properly drew the court’s attention to the authority of Yalibakut v. The State (supra) submitting that the court was restricted from taking into account the evidence in the witness statements contained in the depositions on sentence.
    
18. The State submits that the court can consider the matters in the depositions for all purposes on sentencing.
    
19. If a contested plea on the facts was in issue by the offender’s counsel, then the court or counsel for the State should have been alerted or advised before the depositions were tendered by the State in court and objection taken at that time to the tender of the depositions.
    
20. No objections were taken by counsel for the offender at the time of tender of the evidence.
    
21. Counsel for the offender should have raised the issue squarely in court that there is a contest when the depositions were tendered as evidence to support the State’s case on sentencing and to object to the reliance on the depositions in sentencing the offender.
    
22. The vice with this development in the tender of the depositions by counsel for the State is that counsel for the offender relied on the questions and answers provided by the offender to the police during his unsigned record of interview in submissions as evidence from the bar table from the depositions in mitigation which is an approbation and reprobation of his position on behalf of the offender which I will deal with later in the judgment.
    
23. The court also notes that no objection was taken to qualify or otherwise limit the use of the material in evidence by counsel for the offender for the purpose of sentencing or to extract the contentious evidence from the depositions to seek an order by the court or appropriate directions limiting the use of the material by the court to allow the State to argue otherwise, or indeed, to provide the State an opportunity to consider its position and call evidence from the victims.
    
24. The position taken by counsel for the offender is in my view prejudicial to the State.
    
25. Counsel for the State may have called the mother as a victim of the fire for two purposes:
    
    1. First to provide evidence of events leading up to the fire to place context to the actions taken by the offender consistent with the agreed facts.
       
    2. Second to provide a victim’s impact statement relevant to the loss of her family home and its belongings and permitting counsel for the State to call the relevant witnesses and afford counsel for the offender his right to cross-examine the witnesses and put in issues and challenge any material fact or evidence.
       
26. In the State v. James Gurave Guba [2000] PGNC 78; N2020 Kandakasi J (as he then was) stated at page 5 that:
    

“Counsels need not be reminded of their duties...they cannot and should not expect the court to bend over backwards and perform their roles... it is of much annoyance to the court to constantly hear lawyers say, ‘sorry your Honour, I am not able to assist’ ... in the future, what is observed here should not be repeated. Lawyers need to properly prepare before coming to Court, so all of us can help in the proper administration of justice...”

27. The observations of Kandakasi J (as he then was) are relevant in the current proceedings directed at counsel for the offender and, to a lesser extent, counsel for the State who was caught by surprise in the shifting position of counsel for the offender when the State made it clear to the offender’s counsel that the tender of the depositions was for all purposes in the sentencing proceedings.
    
28. The Court requested assistance from counsel for the offender on the granular point of whether the act committed by the offender of burning down the house was “opportunistic” or “deliberate” as an available finding of fact beyond reasonable doubt to be made by the court on sentencing without an adequate answer to the court’s inquiry.
    
29. The end result was counsel for the offender found it appropriate to simply deflected the point in oral submissions with reference to the agreed facts submitting that the Court remains limited only to the agreed facts.
    
30. Counsel for the State made it clear that it is open to the Court to find that the act of burning the house down by the offender was deliberate and not opportunistic in the circumstances.
    
31. The alternative suggestion by the court to both counsel during the argument of the Yalibakut point was that the mother’s statement may represent or be characterised as a victim’s impact statement on sentencing in the absence of objection by counsel for the offender on the tendering of the depositions by the State as evidence that could be relied upon by the court.
    
32. The problem with applying the restriction of the use of documents referred to in Yalibakut as a general principle is that the restriction must apply to all parties as a matter of both evidentiary consistency and procedural fairness.
    
33. The court is of the view that the principles in Yalibakut do not represent an overarching binding and strict code of procedural fairness in the use of unopposed depositions by the parties in an uncontested plea relying on agreed facts in these circumstances.
    
34. The simple fact is that counsel for the offender did not object to the tender of the depositions for all purposes on sentence as asserted by the State.
    
35. Otherwise, without the critical assistance or aids contained in necessary pre-sentence and other reports or victim impact statements required by the court to examine the facts on sentencing referred to in this judgment, the discretion of the court to sentence the offender fairly and in accordance with due process renders its task otiose, hindered and limiting.
    
36. In the State v. Yakal [1988-1989] PNGLR 129 it was observed that the depositions may be used on sentence on a plea of guilty provided the facts are not challenged and are within the bounds of reasonable possibility. To do otherwise would leave a judge with little to no material to work with and may result in injustice to the community at large, or to the individual offender as applied in Konia v. the State SC 2122 SCRA 2012.
    
37. For completeness of the court’s view is that the Yalibakut point applied by the courts is almost 20 years old and requires practical enhancement or refinement by the National Court to provide the practical application of the authority in sentencing procedures for the use of uncontested exhibits before the court where pre-sentence reports and mental health reports have not been tendered into evidence in the circumstances.
    

The Sentencing Process – What is expected by the court from counsel ( the duty of counsel)

38. The assistance a sentencing judge is entitled to expect from the State and the offender’s counsel, particularly in complex or serious cases where the penalty is life imprisonment, commences with the agreed facts.
    
39. It is the statutory obligation of the State to ensure the agreed statement of facts is presented in a comprehensible fashion to establish the facts and circumstances of the offences upon which it seeks the court to sentence the offender on behalf of the State’s citizens.
    
40. The statement of facts must be framed so the court can discern what is agreed to be fact and what is merely assertion. Equally, the State must assist the court in the tender of evidence it intends to rely upon in sentencing an offender and counsel for the offender must assist the court on the tender or objection to evidence in the sentencing process.
    
41. This case highlights the problems that can arise when care is not taken in the negotiation process of a plea of guilty to arrive at facts, and the tendering of documents, which do not make the sentencing process unnecessarily complex or uncertain as has occurred in this matter.
    
42. Where agreed facts are presented and materials tendered by either side depart from the agreed facts, counsel should draw this to the judge’s attention and advise the court which is to prevail and on what facts the offender should be sentenced.
    
43. If this process seems pendulous and the judge subsequently discovers that there is a difference of opinion in the use of deposition material, the court should raise it with the parties and not proceed to sentence until the matter is resolved by agreement or otherwise by orders or directions of the court which is reflected in the position the court is now taking on the allegedly objectionable evidence.
    

Assigning a higher degree of culpability.

44. If a sentencing court decides to assign a higher degree of culpability to the offender than disclosed in the agreed facts, the court should give the offender an opportunity to address the judge’s view which is the process the court has adopted in the present proceedings before any ruling was made by the court.
    
45. It is open for a judge to sentence in accordance with the agreed statement of facts despite contradictory sworn evidence or a statement provided by the offender to the court in this instance, but where a judge decides to sentence an offender other than in accordance with those facts, this should be referred to during the remarks and reasoning on sentence.
46. The judge should not act on material inconsistent with, or in amplification of, some aspect of the agreed facts, without first bringing this to the parties’ attention.
    
47. Great caution must be applied by the court in determining, then ultimately accepting exculpatory or mitigating evidence from offenders in sentencing from documents relied upon in records or exhibits but not supported by sworn evidence from the offender.
    
48. In my view there are fundamental principles to be applied when a sentencing judge is faced with an untested statement made to the court or a third party.
    
49. Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender and in such cases such statements can be given little or no weight.
    
50. Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports, in records of interviews, critically when unsigned by the offender and other relevant evidence, or assertions contained in letters written by an offender or statements tendered to the court, should all be treated with considerable circumspection.
    
51. Such evidence is untested and may be deserving of little or no weight by the court.
    
52. It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence on oath and was not subject to cross-examination.
    
53. It is one matter for an offender to express remorse to a psychologist or other third party or in a statement to the court and quite another to give sworn evidence and be cross-examined on the issue.
    
54. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested, requiring counsel for the offender to prepare the evidence and call the offender to provide sworn evidence.
    
55. Whilst evidence in an affidavit from an offender or a statement which is admitted into evidence without objection may be accepted by a sentencing judge or generally the circumstances in which regard should be had to such untested evidence is limited.
    
56. Affidavits and allocutus statements relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the State in close proximity to, or on, the date of hearing).
    
57. In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, “to treat this evidence with anything but scepticism represents a triumph of hope over experience”: R v Harrison [2001] NSWCCA 79 at [44].
    
58. However, notwithstanding the caution that should be taken to untested self-serving statements by an offender to an expert witness, such as a psychiatrist or in pre-sentence or mental assessment reports, when there is evidence from the expert about the offender’s mental state, it may be wrong to take an unduly restrictive approach to such evidence, particularly when it may be supported by other evidence in the case.
    
59. The court has not been provided with any report, pre-sentence report or other evidence, in the present proceedings which does not assist the court to consider the objective or subjective circumstances of the offender in the absence of provable facts on sentencing.
    
60. The court expects counsel for the offender as a legitimate expectation of the court that counsel will assist the court to prove relevant evidence to produce a fair and just outcome for the offender on sentence.
    
61. The court will provide its reasoning under the next heading of the judgment and the method in which the Yalibakut point requires consideration in the application of the principles to the issues in the present sentencing proceedings.
    

Yalibakut revisited – practical expansion or workable refinement to the law

62. To explain the reasoning of the court in relation to the Yalibakut point in a present and relevant manner in these sentencing proceedings, it is necessary to refer to the conduct of the offender leading to the offence, the offence itself and the impact the destruction of the family home by the fire had on the victims represents and will result in a finding beyond reasonable doubt by the court that it is a very serious example of recklessness by the offender to burn the house down.
    
63. The court directs itself to apply, and will apply, the Yalibakut principles on the unopposed deposition evidence applying to the agreed facts relevant to the evidence that may prejudice the offender on sentencing without the assistance of a pre-sentence report or mental heath assessment report as evidence before the court.
    
64. In my view the use the court may make of the victim’s observations in her statement remain crucial to better understand and ultimately explore mitigating and aggravating factors relevant to the offender at the time of the offence, is relevant in the court’s opinion to:
    
    1. The state of mind of the offender at the time of the offence.
       
    2. The effects of the use of illicit drugs affecting the state of mind of the offender as observed by his mother.
       
65. I am of the view that the use of the evidence as a victim’s impact statement from the offender’s mother (victim) provides a concerned parent’s insight into the offender’s state of mind or conduct at the time of the offence in the absence of a pre-sentence report or mental health report which I regard as relevant, but not available in this matter.
    
66. The evidence may assist the court in making the finding of mitigating factors, rather than aggravating factors as suggested by counsel for the offender in submissions in favour of the offender, allowing the court to assess the evidence fairly to make special orders for mental health assessment taking place as part of the sentencing process leading to the finding of the likelihood of the offender reoffending or the likelihood of future rehabilitation of the offender.
    
67. Relevantly, the evidence of the victim may provide the necessary context of why the offender set fire to the family’s house.
    
68. Currently there are two (2) competing versions being put forward by the offender.
    
69. The first is found in the allocutus and the other is found in the unsigned record of interview made by the offender before the court in the depositions which the court must make a finding of fact on which version of events the court can rely upon for the purpose of sentencing or reject both versions of the events put forward by the offender.
    
70. The statements contained in the depositions may prove determinative and beneficial, and not prejudicial to the offender as the provable matrix of facts leading to the offending as put fleetingly by the offender’s counsel on the Yalibakut point.

Practical application of the principles in Yalibakut

71. The governing principles in the case of Yalibakut establish that sentencing must be confined to the facts admitted in a guilty plea.
    
72. The court criticized the trial judge for relying on facts not admitted or proven on the issue of consent and emphasized that in such cases, the sentencing judge must adopt the version most favourable to the accused.
    
73. In summary, the decision states on sentencing that:
    
    1. The principle restricts rather than supports, reliance on additional documents like depositions unless they align with the admitted facts.
       
    2. Depositions are not evidence unless tested or agreed upon as the facts in the depositions may contain untested and potentially prejudicial material.
       
    100. Unless such content is put to the accused, supported by sworn evidence, or agreed between the parties, it cannot be used to aggravate a sentence.
         
74. I have taken the above propositions in mind in the reasoning of my judgment.
    
75. The use of evidence in allowing depositions often containing hearsay or unverified allegations to inform the sentencing judge contradicts the legal duty to give the benefit of the doubt to the accused on the precautionary basis that such material would violate fundamental sentencing safeguards.
    
76. The distinction in these proceedings is that the offender gave a statement in addition to the agreed statement of facts where a plea agreement had been reached producing the agreed facts.
    
77. The offender, through his counsel, now says that he can rely upon evidence in the deposition tendered into evidence to suit his position on sentencing and the evidence from the bar table without proof of the facts to support mitigating factors that should be taken into account by the court from the depositions.
    
    78. The statements of the victims in the depositions are available to be used as an elaboration of the agreed statement or facts as the evidence may provide an insight into the ordeal suffered by the victims and supplemented, rather than contradicted, by the agreed statement or facts as discussed in a persuasive authority on the point discussed by Smart J in R v Crowley [2004] NSWCCA 256 at [46] without, in my view, offending the principles of Yalibakut.
        
    79. Relevantly, it would be unfair for the Court to be directed to the unproven evidence or evidence in the depositions to be relied upon in a unilateral manner beneficial in favour of the offender and then counsel for the offender in an offhanded manner rely on Yalibakut to prevent the State from putting material before the Court from the victim that can be used to provide an insight into the ordeal suffered by the victims and supplementary, rather than contradictory to, the agreed statement or facts.
        

Principles of the maxim ‘approbate and reprobate’ – (Latin – ‘approbo and reprobo’)

80. The maxim of ‘approbate and reprobate’ reflects the principle whereby a person cannot both approve and reject an instrument, often more commonly described as ‘blowing hot and cold, or having one’s cake and eating it too.’
    
81. The principles began their life in Scots Law as part of the general doctrine of homologation, which refers to the implied assent to an imperfect deed, contract, or settlement, which is to be inferred from the circumstances.
    
82. The principle falls into the species of law referring to admissions by conduct, or election by conduct, estoppel and other principles of fairness where the offending party is conducting itself in the abuse of the court’s process and denying the party violated by that conduct a denial of natural justice.
    
83. The State tendered the deposition evidence for use in its submissions before the court and the court can make use of all the documents in the exhibits to form its own view on factual matter relevant to sentencing principles without objection by the offender’s counsel.
    
84. In my view, to allow that position in favour of the offender and disallow or not consider evidence from the depositions relied upon by the State is an act of approbation and reprobation by counsel for the offender and procedurally unfair and prejudicial to the State when no objection was taken by counsel for the offender.
    
85. To illustrate the point, I refer to the following examples of such conduct in relevant and applicable authorities.
    
86. In Codrington v Codrington [1875] UKLawRpHL 21; [1875] LR 7 HL 854 at 861-862 per Lord Cairns L.C., concerns the situation “where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time confirming to all its provisions, and renouncing every right inconsistent with them.”
    
87. A simpler example of the doctrine is discussed in Express Newspapers plc v News (UK) Ltd [1990] 1 WLR 1320 where the plaintiff put forward one argument in the claim and a contradictory argument in the counterclaim. They were held unable to do so, through the application of the principle of approbate and reprobate in the context of election.
    
88. Equally, in Redworth Construction Ltd v Brookdale Healthcare Ltd [2006] EWH 1994 (TCC), the claimant attempted to rely on a different case in court to the case put before the adjudicator in the preceding adjudication. It was held that they could not approbate and reprobate their previous argument.
    
89. Notable decisions include the case of PT Building Services Ltd v Rok Build Ltd [2008] EWHC 3434 (TCC) where in a challenge as to the validity of a second adjudicator’s decision, the responding party was held to be unable to argue the invalidity of the first adjudicator’s decision, whilst at the same time arguing the invalidity of the second adjudicator’s decision based on the existence of the first decision.
    
90. The principles of ‘estoppel in pais’ was also applied in Australia in Commonwealth v Verwayen [1990] 170 CLR 394 in facts where waiving the right by the Commonwealth to rely on its defence and then reverse its decision in an action for damages constituted conduct of the party (the Commonwealth) regarded by the court as unconscionable.
    
91. Finally, in the matter of Hitachi Pty Limited v. O’Donnel Griffin Pty Limited [2008] Adj.LR 06/17 Supreme Court of Queensland Skoien AJ who criticised the multinational Hitachi in its conduct by stating at paragraphs [93-96] with reference to VACC Insurance Co Limited v. BP Australia Ltd [1999] NSWCA 427; (1999) 47 NSWLR 716 at 72 that:
    

“I am satisfied that Hitachi has committed a material abuse of process.... which led to a denial of natural justice to ODG. The adjudication cannot stand.”

92. In the application of the principles above, the court finds that by the use of the material used by counsel for the offender from the depositions in his submissions relevant to the unsworn record of interview, his failure to object to the evidence when tendered before the court and by the application of the principles of approbation and reprobation to his conduct, the court is entitled to consider the evidence in the depositions on sentencing.
    
93. The Court will apply the principles in Yalibakut relevant to any restrictions that may cause prejudice to the offender including the unproven allegations contained in the witness statements of the victims relevant to the offences as a refinement of the Yalibakut principles.
    
94. The law generally prohibits a party from taking contradictory positions in judicial processes, particularly when asserting and denying the legality of a specific document, evidence, facts, events, or transaction.
    
95. The court summarises the principles arising from the case law as follows for the purpose of directions the court will follow on sentencing the offender:
    1. First, the approbating party must have elected, that is made his/her choice, clearly and unequivocally.
       
    2. Second, it is usual but not necessary for the electing party to have taken a benefit from his election such as where he has taken a benefit from the evidence.
       
    3. Third, the electing party’s subsequent conduct must be inconsistent with his earlier election or approbation.
       
96. In essence, the doctrine is about preventing inconsistent conduct and ensuring a just outcome.
    

The application of the maxim to court conduct by counsel in criminal trials

97. In further support of my views there is persuasive authority in NSW in CL v R [2014] NSWCCA 196, where the applicant unsuccessfully sought to challenge the agreed statement of facts to which his legal representatives did not object.
    
98. The court held that the applicant was bound by the conduct of his counsel at the sentence hearing albeit the current matter involves the use of the depositions on sentencing.
    
99. In the present proceedings I accept there is a distinction between the tendering of the depositions and the challenge to the agreed statement of facts referred to in the CL v. R case.
    
100. In my view the principles must apply in this instance to the conduct of counsel for the offender in relation to court procedure and professional responsibility by counsel for parties in sentencing proceedings including the present matter.
     
101. By extension of the principles in CL v R (supra) as read together with the application of the principles of approbation and reprobation, the use of the depositions by counsel for the offender is consistent with the failure to object to the tender of the depositions by the State allowing the court to rely upon the statement of the mother as victim to the arson for the limited purpose of her views relevant to the offender’s use of drugs and his disposition after such use on sentencing without offending the principles set out in Yalibakut.
     
102. In applying these principles of law, autochthony permits the application of the laws of Papua New Guinea to sentencing courts where the courts are continually confronted with a consistent absence of conventional documents like pre-sentence reports to assist in sentencing which leads to the natural conclusion that the use of documents or statements in depositions tendered by the State will assist in sentencing decisions both favourable to the offender and may put a complexion on what has occurred at the time of the commission of offence to uphold section 59 of the Constitution.
     

The Submissions of Counsel for the Prosecution and the Offender

103. The court must now consider both the written submission and the submission that supplement the written submissions in arguendo before the court heard on 18 June 2025 before proceeding to reasons for sentence.
     

The State – Counsel for the Prosecution – Mr. Tengdui

104. The submissions of the State are set out in written form filed in court during the sentencing hearing on 18 June 2025.
     
105. The key submissions of the State are set out in condensed form below:
     

The offender pleaded guilty to one (1) count of Arson pursuant to Section 436 (a) of the Criminal Code Act.

The maximum penalty prescribed by law for this offence is, subject to Section 19 of the Criminal Code Act, life imprisonment.

The agreed facts before the court and then set out verbatim

To state the obvious, sentencing is not a mathematical or algebraic formula, and each case should be determined on its own peculiar facts and circumstances, being the factors in aggravation, and mitigation the extenuating circumstances and the gravity of the offence itself.

The offender being classified as worst offenders or high-risk offenders are to be sentenced to the maximum sentence (See Goli Golu v The State [1979] PNGLR 563) and in Kongian v The State (2007) SC928 burning down of a dwelling house, or public institution building such as school building or hospital should be 10 years and 5 years for a haus or garden house as a helpful guide to come to an appropriate sentence for the offender the Court is directed to the following comparable authorities:

The State v Sengi (2015) N6087 (Polume –Kiele J) - plea of guilty with remorse and restitution by offender – 2 years wholly suspended;

The State v Kamotau (2016) N6142- (Toliken J) – first time offender, plea of guilty, first-time offender, no remorse 2 charges of Arson and grievous bodily harm – 6 years for Arson and 4 years for GBH – 6 years concurrent.

The State v Yeskulu (2003) N2241 (Kandakasi J) as he then was – first time offender, plea of guilty, genuinely remorseful – 7 years wholly suspended with statement by Kandakasi J that the starting point is burning down of a dwelling house, or public institution building such as a school building or hospital a starting point should be 10 years and 5 years for a haus win or a garden house.

Factors in mitigation are that the offender is a first-time offender, no occupants in the building and impliedly he pleaded guilty to the offence.

The State submitted that here was no good reason for the offender to set fire to his mother’s house.

The mother in her police statement contained in the depositions says the offender constantly threatens her daughter and herself. She says the offender is a heavy marijuana smoker. He constantly threatens her daughter and herself and has now burnt her house down with all her belongings in it. She pleads the court to deal with him accordingly.

The State acknowledges that although the facts stated above are not pleaded in the indictment and brief facts to which the offender pleaded guilty, the State submits these are matters that should be given some consideration with respect to the length of sentence and type of sentence to be imposed.

From the questions and answers 20, 21, 22 in the record of interview contained in the depositions, it is apparent that the offender has no remorse for the offence he committed. This is against the fact of committing a very serious crime that carries a possible life imprisonment.

In the circumstances we submit this case is quite similar to The State v Sengi (supra).

In Sengi, however, partial restitution was made, and the Court held there the offender showed real remorse for committing the offence.

In the present case the State submits that there has been no remorse shown and no attempt at restitution as is customary. The victim asked the court to deal with the accused appropriately.

In the circumstances, an appropriate sentence would be a custodial sentence of 3-5 years imprisonment.

The State also submits it is open to the court to consider the suspension of any portion of the offender’s sentence, that is at the court’s discretion given its powers under section 19 of the Criminal Code Act.
The Public Solicitor – Counsel for the Offender – Mr. Ngibe

106. The court now must consider submissions made by the offender’s counsel are set out in written form filed in Court during the sentencing hearing on 18 June 2025.
     

The relevant authorities referred to by the State are also relied upon by counsel for the offender as common grounds relevant to sentencing principles.

The exception is that counsel for the offender says in simple terms, the court is prohibited as a rule of fairness to the offender on sentencing that the application of the law in Yalibakut was argued not only as general sentencing principles.

The reasoning in Yalibakut was also relied upon by the offender’s counsel to limit the use of the material representing the depositions by the court tendered in evidence by the State as material relevant for the court to consider on sentencing without objection in the State’s submissions.

Comparable cases referred to include State v Pianus Kiwo & Tovili Kula (2019) N1103 & N1104 and State v Calistos Kadoka & Samuel Kadoka (2017) N8454.

The personal details are that the offender is Minai Peter he is 21 years (20 at the time of offence) he is a member of the Christianity (Seventh Day Adventist Church at Dauli village, Hulia/Komo, Hela) his father, Peter Malingi, who died in 2017 due to illness and his mother is now remarried.

The offender has 4 siblings. Two big sisters and two small brothers who allegedly lived with him but as a result of his incarceration now live with his mother and his older sisters are married and living with their husbands.

The offender’s educational history and employment are that he last did grade 4 in 2017 at Dauli Demonstration Primary School but left school due to passing of my father and no financial assistance to pay for school (project) fees.

The offender cannot read, write, and speak English or Pidgin well.

The offender allegedly has a hunger for education, and he intends to continue with education and intends to do grade 5 after my imprisonment sentences if court impose custodial sentences on him.

Allegedly he was previously a security guard with MSU security in Port Moresby and at the village he remains a subsistence farming selling the garden foods he produces.

As to the allocutus, it is submitted that the offender apologised for committing the offence and to the victim and the court.

The submission is that if the court accepts that the offender’s allocutus was genuine, he asks for mercy and leniency from the court taking into account that he has been in custody for 1 year 6 months and asked the court to impose a lenient sentence on him.

It is alleged by the offender that the reasons for him for setting the house on fire was because after his father died, the mother and his older sister brought in warlords from other villages and married them and lived with them in the house he and his father had built. Despite warning by the Community leaders to the mother and sister to not accommodate the warlords, they continued to accommodate so to stop them, he burnt the dwelling house.

The Offender comes before the Court with no prior conviction.

The four (4) purposes criminal justice is served is deterrence, separation, rehabilitation, and retribution.

Counsel for the offender relies on the following authorities on sentence: -

The State v Ipu Samuel Yomb [1992] PNGLR 261 Doherty J (as she then was) formulated some guidelines which she had considered relevant when exercising her sentencing discretion referred to by the learned judge at p.236

Lawrence Simbe v State [1994] PNGLR 38 that the matter is to be determined on its own peculiar facts and circumstances.

Yalibakut v. State (supra) that on a guilty plea matter, an offender must be sentenced on the facts to which he pleaded guilty, and he must be given benefit of any reasonable doubt regarding facts he did not plead guilty to.

The mitigating factors in favour of the offender are that:

1. There was an admission and guilty plea – thereby saving court and State time and expenses.
   
2. He co-operated well with police investigation.
   
3. The offender was allegedly provoked in non-legal sense (reasons given during allocutus and partly support by the answers to questions 21 – 25 of the record of interview).
   
4. The offender and the deceased father had built the house that was burnt.
   
5. He expressed remorse.
   
6. There are no prior convictions.
   

Counsel for the offender has directed the Court’s attention to the following comparable cases on sentence:

State v Pianus Kiwo & Tovili Kula (supra). Guilty plea to Arson involving a revenge attack setting fire to 5 buildings belonging to the complainant and properties valued at K61, 387.57 - 4 years (wholly suspended with conditions on compensation and restitution).

State v Calistos Kadoka & Samuel Kadoka (supra) Guilty plea – the offender setting fire to the victim’s permanent house. The total damage was estimated to be around K54, 000.00. 4 years (wholly suspended with conditions on compensation and restitution.).

State v. Ame [2024] N10915 Guilty plea – the offender set fire to the bush material dwelling house of the victim - 5 years (wholly suspended and placed on probationary condition).

Polau v State [2013] SC1231 Guilty plea – the appellant pleaded guilty to setting fire upon a bush material dwelling that was burnt down. He was sentenced to 5 years imprisonment with 3 years suspension.

The circumstances of this case do not warrant the maximum penalty but a head sentence between 2 – 4 years be imposed.

The pre-sentence custodial periods of 1 year 1 month and 08 days be deducted from the Head Sentence as per the s.3 (2) of the Criminal Justice (Sentence) Act 1986. The date of arrest being 10th May 2024.

The offender’s counsel submits that the resultant sentences be wholly suspended by the discretion of this court pursuant to section 19(f) of the Criminal Code Act that the offender be placed on probationary conditions during the suspended sentences.

The suspension will rehabilitate the offender and serve as deterrence to not commit any other offences in accordance with the principles of The State v Tardrew [1986] PNGLR 91 adopted.

107. I am persuaded by the State’s submissions on sentence and the facts and reason applying the comparable cases in the range of 3-5 years as a full-time custodial sentence for the offender to support the court’s views and taking into account section 19(f) of the CCA that a fulltime custodial sentence should be imposed as a general dereference.
     

The Conduct of the Offender on the Agreed Facts

108. The court considers the evidence on sentence and makes the following findings beyond reasonable doubt.
     
109. The conduct of the offender represents delinquency and abhorrence against his close family members.
     
110. The conduct of the offender can only have been the consequence of his wanton behaviour against expected social norms towards his closest relatives illustrating an absence of care for his immediate family members.
     
111. The offence must be taken as being objectively serious.
     
112. The burning of his mother’s home and destruction of the family’s possessions and personal items demonstrate dreadful conduct by the offender towards his family and siblings set out in the agreed facts and is unspeakable in an objectively normal family home.
     
113. The conduct has had profoundly detrimental consequences to the victims resulting from the loss of their family’s home, their belongings and indeed shared social and family memories.
     
114. The conduct also displays objectional conduct by the offender to the social fabric and community of Hulai/Komo area of Hela Provence concerning village life, community safety and welfare towards others.
     
115. The fire he lit to burn and ultimately raze the family home in the way it was done by the offender with a total disregard for the welfare of others, may have resulted in causing a bushfire to the village or the broader Hela region and community.
     

The Offender

116. The offender has no record of criminal convictions which I will take into account in my reasons for sentencing.
     
117. The offender was 20 years of age at the time of the offence and as time has passed since his arrest, he is now a relatively young man of almost 21 years of age at the time the proceedings were heard.
     
118. The court must consider the opportunity for rehabilitation to take place and weigh rehabilitation separately to the likelihood that the offender will reoffend.
     
119. The offender has been in custody on remand at Hawa Correctional Institution (Hawa Prison in Tari) since 10 May 2024 representing 1 year and 44 days that requires to be taken into account in sentencing by the court. I do so in sentencing the offender.
     
120. The offender has remained in custody on remand to date for more than 1 year he has already served as a consequence of his arrest, charged for the offence and his admission of guilt.
     
121. I will take into account that he will continue to have a difficult time in custody which, I am prepared to accept, and it that will be significantly more onerous than it would have been if the facilities at Hawa Prison were not overcrowded, poorly funded by the State and the provincial administration and not commissioned nor upgraded to acceptable prison standards presently necessary and obvious in 2025.
     
122. He is entitled to a 5% discount for the utilitarian value of his plea of guilty. I think he is also entitled to some small level of extra leniency because of the objective fact that he spared the victims and other witnesses from what would have been a harrowing and traumatic experience in giving evidence before the court.
     
123. I find that the offender has no insight at all as to why he offended.
     
124. The allocutus is clear in its intent and showed little remorse or contrition.
     
125. The parties have agreed that the allocutus transcript was listened to by Benjamin Itaki, the Registrar of the National Court in Tari and who provided his supplementary translation in UPPER CASE SCRIPT below of his translation in relation to the offender’s allocutus statement before the court as an comparative translation of the statement made by the offender during court proceedings interpreted by the resident court interpreter by agreement of the parties to assist the court in sentencing.
     

Allocutus Administered.

“Court: Counsel for the parties, the allocaturs in the Pidgin and English translations are used to the following effect:

“Now could you please stand up. Do you have anything to say about why you burnt your mother’s house down?

Interpreter: ina kot aju lamule pi mbira jitepe lara. Anda I anja naga anda heta haritagonaga.

(DO YOU HAVE ANYTHING TO TELL COURT ABOUT BURNING DOWN YOUR MOTHER’S HOUSE?)

Offender: bi jito

(I GOT SOMETHING TO SAY)

Interpreter: Yes, I got a statement to make

Court: What I’m after is you pleaded guilty to the offense. Is there anything you want to say by way of sorry or otherwise?

(KOT IPUGUA AKUA HAME LARA, KO PIRU LARIKONIKO, AI KO PIRU TAGONI NAGA TARA KO NAHE LALU MBIRA LA LARA)

Interpreter: Ibugua larago akua laragoni, kot ipugua laragoni akua laragoni, anda heta haritagonigo, ko pirutagonigo, karapaja harutagonigo, ai kot ina mbira piamogo pipe o, tara hape o au lalu mbira la laragoni.

(COURT IS SAYING THIS, YOU BURNED THE HOUSE ALREAY, YOU MADE A MISTAKE, YOU WENT TO JAIL, NOW TELL COURT THAT COURT WILL HELP YOU, HAVE MERCY ON YOU OR SAY SOMETHING ALONG THAT)

Offender: O ina, o Governm mana ogotakua winita lowa mali mbirani ege waragaria akima ogoni karapaja Haruko, government mana ogoni luksave pitogo, kot ina mbira I tara howa sentence mbira ngirape hondole kogoni. Kot teni harugonaga tara harogoni, kot me tara howa sentence mbira tara howa ngirape hondole kogoni:

(I NOW UNDERSTAND THE LAWS OF THE GOVERNMENT; I AM SORRY FOR MY MISTAKES. I WANT THIS COURT TO CONSIDER THE ONE YEAR SIX MONTHS I SERVED AT THE PRISON AND GIVE ME A FAIR SENTENCE WITH MERCY.

Interpreter: Your honor, I am standing in front of the Honorable Court on that alleged charge. and I would like to take a sympathy for what I have done. I would like to ask the hon. Court that the Court may impose a sentence why admitting the matter to Court.

Court: ARE YOU SORRY?

Interpreter: ina tara keep lara

(ARE YOU SORRY)

Offender: Kot teni heyu haru tagonaga, kot tara kho.

Interpreter: I feel sorry for the Court

Court: NOT FOR THE COURT, SORRY FOR WHAT YOU HAVE DONE.

Interpreter: Ina piri tagonaga tara kepe lara, anda uni hetaharitakonaka.

Offender: Yes, tara ko

(YES, I AM SORRY)

Interpreter: Yes, sorry for what I have done in burning the house with my mother.

Anda I apala pinigo, I apa la ijame pinigo, anja mbalini palelo pinigo, I anga mbalini lipugua akali wai piaga tamene haru ngoai howa haru paluwa agali lawialu palijakola anda ina hetaharu:

Interpreter: Your honor, the reason why I burn down the house was, the house has been constructed by myself and my father. And my mother and sisters have brought in some warlords into that house for that reason I set the fire to the house for accommodating them.

(ME AND MY DAD BUILD THAT HOUSE FOR MY MOTHER AND SISTERS. BUT WHEN MY DAD DIED, MY MOTHER AND SISTERS BROUGHT IN SOME MEN WHO WERE WARLORDS TO THAT HOUSE. THEY WERE HAVING SEX WITH THE MEN THEY BROUGHT INTO THE HOUSE).

Offender: Maru jito. Ti ogoni takua pijakola ina Ogoni takua napule lalu, community leader hondo pi yalu pu laru. Agali wai piaga naharu hole lalu pi jalu pu larugola leader council la naga pi sakim pijakola, walu anda heta haru:

Interpreter: Your honor, the community leaders from our village have given instructions to me not to accommodate the warlords by my mother and sisters, your honor, for that reason I burn that house.

I STOPPED THEM FROM BRINGING IN MEN (WARLORDS) TO THAT HOUSE, I SENT A MESSAGE THROUGH THE VILLAGE LEADERS AND COUNCILOR TO STOP MY MOTHER AND SISTERS FROM ENTERTAINING THE MEN (THEIR LOVERS & WARLORDS) IN THAT HOUSE BUT THEY DENIED SO I BURN DOWN THE HOUSE.”

126. The court made the point to counsel for the offender that the court had provided the offender every opportunity to go through the allocutus statement to which counsel for the offender agreed.
127. The offender has expressed little, if any, contrition or remorse to the victims and also to the court in his statement.
     
128. I find the offender’s evidence of remorse and contrition underwhelming.
     
129. The State submitted in oral argument that in effect little weight should be afforded to the offender’s statement of remorse before the Court on 18 June 2025.
     
130. The Court is persuaded by the State’s argument. The submission has force from my assessment and observation of the offender’s demeanour when providing his statement to the court.
     
131. I do not propose to give the allocutus significant weight as I fear that the offender’s remorse is much more to do with the fact that he has been arrested, charged and he is now in custody and will continue to be there for a further time, rather than any empathy or understanding as to the effect his criminal activity has had on the victims and the wider circle of people around him and these people in their village community.
     
132. Most certainly he appears to have no understanding at all as to why he behaved in the way he did or even that such behaviour is not just legally wrong but morally reprehensible and socially contumelious.
     
133. The allocutus speaks in determinative terms punctuated by providing the court with an excuse and justification for the act of burning down the victims’ home in which I find in the assessment of his demeanour was delivered in a cold and deliberate manner when addressing the court from my observations of the offender.
     
134. Not only can significant and ongoing trauma to the victims be inferred from this type of offending, I have also read statements before the court from his mother and sister that I will categorise as victim impact statements that the victims observed the offender’s conduct on the date of the offence that I found powerful, compelling and I must say, distressing.
     
135. The victims confirm, what I had already inferred, that is that the trauma associated with the offending has had a devastating ongoing impact on their lives and no doubt will continue to do so. I am somewhat heartened that the victim-mother has expressed the feeling of some benefit from the criminal law process about which this is the last step.
     
136. The court does not have the benefit of a pre-sentence report to assess the risk of the offender re-offending, any recommendation for rehabilitation or suspension of a custodial as an alternative for custodial confinement or a mental health assessment regarding his ideation that he still remains convinced that “he was not responsible for the fire because he was angry that the victim mother, being widowed recently, remarried and the new husband did not pay a bride price” (Questions 20-25 and Answers 20-25 of the unsigned record of interview between the offender and the police on 20 May 2024).
     
137. The unsigned record of interview relied upon by the offender’s counsel is contained as part of the police brief tendered by the State in the depositions which I find is inconsistent with the elaborate justification the offender provided in his allocutus statement.
     
138. I find the evidence carries little weight on sentencing on any manifestation, excuse or defence of the offender’s reasons for offending, or as put by the counsel for the offender in his written submissions that “the offender was allegedly provoked in a non-legal sense” which I frankly do not understand or follow as to its relevance or purpose in sentencing on the facts or law I am required to find.
     
139. I reject the submissions of the offender’s counsel on the point made on behalf of the offender that he was justified in offending when he has pleaded guilty to the offence as a shift in the position of the offender which he is disentitled to take once he pleaded guilty on the agreed facts.
     
140. It is inevitable that the sentence that the court must impose will involve a significant period of detention prior to any prospect of release on parole.
     
141. Despite being in custody on remand for over a year, I think the offender will be a particular danger to himself and the community without mental health assessment.
142. The court relies on the offender’s allocutus statement in that the contrivance relied upon by the offender that ‘warlords were occupying his family home’, I infer with the consent and approval of his mother, thereby ‘the village community directed him to take measures to expel the imaginary warlords from his mother’s home’ as unproven, over-imaginative and an unrealistic account put forward by the offender that the court rejects on the evidence.
     
143. There is no evidence before the court that supports that warlords lived in his mother’s home before it was burnt down by the offender or indeed that a new husband was taken in by his widowed mother. No evidence was called to prove these facts by counsel for the offender resulting in the submission by counsel for the offender is rejected on this point by the court.
     
144. As I have already said, the offence is objectively very serious, and the overall criminality is extreme taking into account that the act of setting alight a family home in the village could have put his younger siblings at risk if they were inside at the time the offender lit fire to the house and to the broader village community at Huali/Komo if a forest or bush fire resulted.
     
145. The agreed facts represent a horrible act of offending.
     
146. The offender’s subjective case is hardly compelling.
     
147. The highest it can be put is that he has no criminal record, which for reasons I will come to, I give no weight, his plea of guilty for which he is entitled to a 5% discount and I give some further weight and his expressions of contrition or remorse which I give some very limited, if no weight, and his young age and with no prior convictions also given the weight it deserves under sentencing laws.
     
148. What all of that means is that the sentence that must be imposed on the offender has to involve a period of full-time custody within the range submitted by both counsel which I will refer to later in the judgment being between 2-5 years as put by them.
149. A general deterrence must be part of sentencing against the offender.
150. Counsel for the offender did not tender a pre-sentence report or mental health reports to assist in sentencing as a result of the absence of resources to commission the necessary and obvious assistance to the court in its task of sentencing the offender as required by the law.
151. As a direct consequence of his offending, the offender has lost all contact with his family and has no support network of family or friends who are victims to the offending and, quite properly, have been naturally impacted by the conduct of the offender burning down their family home.
     

Structure of these reasons

152. I will firstly identify the charged matter and then discuss, by reference to my summary of the agreed facts, my analysis of the objective seriousness of the offence and identify any aggravating and/or mitigating factors relevant to that offending.
153. The court must now consider both the written submission and the submission that supplement the written submissions in arguendo before the Court heard on 18 June 2025 before proceeding to reasons for sentence.
154. I am of the firm view that general deterrence requires significant weight in this matter.
155. The community must understand that crimes involving arson of a family home in the villages throughout Hela Province and, without limitations, in all the provinces of Papua New Guinea have a significant place and represent spiritual roots dating back over 50,000 years that need the court’s protection as the sanctity and lifeblood of comfortable and loving family life requiring that crimes of arson will be met with stern punishment.
156. I also find that public condemnation and denunciation of the offending together with an acknowledgment of the harm done to the victims is important.
157. I grant some, but very limited weight to the offender’s expressions of remorse which I suggest is now an excuse as to why the offender burnt his family home rather than an expression of contrition or saying sorry.
158. I find on the evidence beyond reasonable doubt that I grant little weight to his apparent good character. As I have said, because of his young age and good health, I am of the view that rehabilitation, protection of the community and specific deterrence have very limited value.
159. To the extent that the process starts to fall into a pattern, I will try not to repeat myself unless necessary to highlight the point in my reasoning.
160. Before doing that, and so as to reduce repetition, I will try and identify and deal with the features that are relevant to the offence.
161. Thereafter I will seek to identify the offender’s subjective case, deal with the discount mandated for by the plea, acknowledge that I am sentencing the offender by today’s standards and that the significant trauma suffered to the victims of this type of offending is now understood to be much more pronounced than was perhaps understood or accepted in earlier times.
162. Again, I will try not to repeat myself as the factors fall into a pattern.
163. Finally, I will then deal with whether I can identify any “special circumstances” to determine whether the discount to the head sentence ought to be adjusted.
164. Many matters that must be taken into account in fixing a sentence are matters whose proper characterisation may lie somewhere along a line between two extremes. That is inevitably so.
165. The matters that must be taken into account in sentencing an offender include many matters of, and concerning, human behaviour.
166. It is, therefore, to invite error to present every question for a sentencer who is assessing a matter which is to be taken into account as a choice between extremes, one classified as aggravating and the opposite extreme classified as mitigating. Neither human behaviour, nor fixing of sentences is so simple.
167. Often where an offender pleads guilty, sentencing procedures are marked by a degree of informality. Usually, an agreed statement of facts, sometimes negotiated between the accused and the prosecution, will be placed before the sentencing judge
168. Plea agreements are usually affected by five fundamental principles:
     1. It is the prosecutor, alone, who has the responsibility of deciding the charges to be preferred against an accused person.
     2. It is the accused person, alone, who must decide whether to plead guilty to the charge preferred.
     3. It is for the sentencing judge, alone, to decide the sentence to be imposed.
     4. There may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge’s capacity to find facts will be affected by the evidence and the admissions.
     5. In deciding the sentence, the judge must apply to the facts as found, the relevant law and sentencing principles.
        

Opportunistic or deliberate

169. There is an overarching theme addressed by both the State and the offender as to whether the offending can be properly described as “opportunistic” or “deliberate”. I think where the parties are in contest turns on a question of language, in particular the meaning of “opportunistic”.
170. The offender’s point is that there is no evidence to suggest that the offender went out of his way to burn the house because of his manifestation that it was justified and approved, in fact, fomented by the local village community contrary to the agreed facts.
171. In this regard, it does seem reasonable to conclude from the evidence that the offender, when he found himself in a position to take advantage of the situation, did just that, but he did not go out of his way to engineer the situation.
172. Amongst those facts, in a very limited sense, I accept that the offending could be described as opportunistic but only in the sense that he was waiting patiently for the right opportunity to deliberately burn the house down which was focused on his mind.
173. The offending actually became almost a necessity of justification in the offender’s mind as much planned in the offender’s mental ideation.
174. I do not think it is helpful to engage with the debate as whether the conduct can be described as deliberate or not. I think it is more useful to focus on the actual conduct and the agreed facts which plead the offence which speak for themselves.
     

Criminal record

175. This brings me to another thematic matter, that is the question of the offender’s criminal record. As I have already recorded, he does not have one. Ordinarily, that can be seen to be a mitigating factor, but he admitted to the offence to his mother at the village and then to the police in his record of interview suggesting that the offender had no real option other than to plead guilty to a strong prosecution case.
176. This does not disentitle him to leniency, while elevating the obvious seriousness of the charge. Accordingly, notwithstanding the fact that the offender has no previous record of conviction, I give the apparent good character of the offender, given his age, limited weight. The harsh reality is that his character is, as anything, other than profoundly troubled would be a finding that would be available to me as the sentencing judge.
     

Prospects of Rehabilitation

177. Turning then to the next matter, that being the important question of the offender’s prospects of rehabilitation or the likelihood of reoffending.
178. I have already discussed this elsewhere in the reasons and I have concluded not only because of the offender’s completion of his task to burn the house down; there is little chance of the offender reoffending as he has achieved his end goal but that is a matter for the offender and time will tell.
179. There was a plan, then it was carried out. That does not mean that he has any prospects of rehabilitation unless mental health assessment takes place. There is a need for the community to be protected from this offending, as well as a need for general deterrence which are important considerations in the sentencing process.
180. The same mitigating factors I have identified in the judgment prevail and are relevant.
     

Victim Impact Statements

181. I have already mentioned that I intend to rely on the mother’s statement as a victim impact statement. It is very important for the court and the community to be reminded and to understand that it is now well accepted that crimes of this nature are not just horrible at the time they are committed, they also do have extremely adverse consequences on the victims and those impacts can be expected to be continuing and lasting.
182. In saying that, I do not want there to be any suggestion and I accept the conduct of this crime before me was any more acceptable to the community at the time of offending than it is today.
183. It was never considered anything other than deprived, abhorrent, appalling and entirely unacceptable behaviour for a son to burn his mother’s home down. Rather, the position is that it is now more acceptable that such conduct will almost certainly have ongoing adverse traumatic and impact on the victims.
184. Impact statements may be received and considered by the court to understand the devasting consequences of the offence of arson on the victims.
185. A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim’s response to the offender ’s on the members of the primary victim’s immediate family is an aspect of harm done to the community.
186. The State tendered the depositions without objection for the purpose of sentencing which included the mother’s statement which I will rely upon as a victim’s impact statement dated 23 July 2024 with the necessary Yalibakut direction applied.
187. The statement was signed by the mother and certified with the following jurat:

“I Kama Mulungu certify that this statement of 1 pages (sic) is true to the best of my knowledge and belief. I make it knowing that if it be tendered in evidence, I will be liable to prosecution if I have knowingly stated anything that is false or misleading in any particular”

188. The oath of the mother to tell the truth under compulsion of being prosecuted for providing false facts provides the court with comfort that the contents of the mother stating the facts relevant to the agreed facts, faced with the anguish of her son, the offender , being charged and incarcerated for burning down the house, are facts the court can rely upon as true the burden of proof necessary and beyond reasonable doubt.
189. It is necessary for the court to refer to the contents of the statement in its entirety to examine the agreed facts and the admissions made by the offender more closely and in the proper context on sentencing.
190. The one-page police statement of the victim-mother translated from the Pidgin language into the English language states that: -

“I am Kama Mulunga. I am 45 years of age. I am a widow and mother of 8 children. I am from Dauli village, Hulia/Komo District Hela Province.

I can recall back clearly that on Monday 26 February 2024, at about 9:30 am I went to Dauli Primary School to check my little children at school.

At that time someone told me that your house is on fire. I was shocked and ran back home.

I was late, my house was on flame and it burnt down.

All my properties were burnt down to ashes.

My fourth born son namely Minai Peter (the suspect) came and say that he set a fire to the house and further stated that you and your daughter must go to your husband place.

I cried and asked him why did you set fire to our house then he threatened me and tried to attack me so ran away.

My son is a heavy Marijuana smoker and he is mentally affected by Marijuana.

He always assaults me and my daughter and also threatened to kill me every time.

I as the mother of the suspect Minai Peter I want Law to deal with him.

That’s all I can say.

Signed by mother “

191. A significant and understandable theme that emerges from the mother’s statements is the painful uncertainty suffered by the offender’s troubled mother when she saw her home burnt to ashes, exacerbated now by the later clarification of what happened to her and who was responsible for it. I have considered and taken these statements into account to the extent permitted by law.
192. However, I should clearly indicate that I would have arrived at the sentence I intend to impose even without the benefit of the victims’ sentiments expressed in this way from my own findings of fact.
193. I find beyond reasonable doubt that at the time of the offence the mother was a widow with 8 children, and that I reasonably infer she was not married otherwise she would have stated it in her statement, she cried in seeing her house burn down, that the offender admitted to her that he burnt the house down, that her son was a heavy user of marijuana and mentally affected by the use of that drug and that she wanted the law to deal with him (that is the offender).
194. Applying the Yalibakut direction I do not rely on any other fact, allegation or evidence in the mother’s statement as the allegations do not satisfy the burden of proof beyond reasonable doubt in relation to the offender always assaulting the mother and her daughter, the offender’s sister, or that the offender threatened to kill his mother.
195. It can hardly be controversial that in burning down the family home and its contents, the Offender must be taken to have known and appreciated the injury, emotional harm and loss that his actions were likely to cause to the mother, her children and her other relatives being his family.
196. The presence or absence of statements from victims of the Offender’s crime does not alter that obvious conclusion, even though in this case those statements eloquently articulate what common experience and understanding of human affairs would otherwise lead one to expect. The significance of the family home burning down and its consequences in a village community caused by their own son and sibling is not only to be measured by the suffering of those left to endure it, but the Hela Province at large.
     

Comparable cases

197. I have now been taken to a series of cases as comparable cases which are contained in both counsel’s submissions. They have given me an opportunity to reflect on and to consider crimes on both an unindicative basis and a comparable basis. Obviously, enough of these types of crimes involve a wide range of different conduct, have subjective outcomes by the courts and therefore such cases can only be used as a guide.
     

Objective seriousness

198. The offender’s state of mind at that time he burnt down his home in the village of Komo is relevant to the assessment of the objective seriousness of the offence. I find that the offender lit the fire on the home of his close relatives by a voluntary act performed by him with the intention of the destruction of the home and its belongings beyond reasonable doubt.
199. An intention to commit an offence is a matter that turns generally to increase the objective seriousness of the offence of arson in contrast to an arson caused by an act or an omission that was caused by intent to frighten or otherwise scare the occupants or was accidental or negligent in the circumstances.
200. I find that the offender planned to burn down the house; he burned the house intentionally, having resolved to do so during the morning hours of 26 February 2024 following the departure of his mother, Kama Mulungu from the family home to return to community work at school with little, if no consideration by the offender in relation to the possibility of the other members of his family or other occupants or the extended family were safely inside or absent at the time of the offence.
201. The offender ’s state of mind at the time he burnt down his family home in the village of Komo is relevant to the assessment of the objective seriousness of the offence.
202. I find that the offender lit the fire on the home of his close relatives by a voluntary act performed by him with the intention of the destruction of the home.
203. I find that the offender planned to burn the house down intentionally at some point in time beyond reasonable doubt and he found the opportunity to do so on 26 February 2024.
204. The Court is asked by Counsel for the offender in his written and oral submissions to accept the following evidence on sentencing (without formal proof) as read together with the statement made by the Offender in the Allocutus, may be helpful in my task to examine the mindset of the Offender setting fire to the family home:
     1. The offender’s father, Peter Malingi, died in 2017 due to illness who provided the Offender parenting and financial support.
     2. The victim-mother is now remarried.
     3. The offender has 4 siblings including two married sisters who live with their husbands.
     4. Two (2) younger brothers who lived with him until he was arrested, charged and on remand who are now with their mother.
     5. The offender last attended school in grade 4 in 2017 at Dauli Demonstration Primary School but left due to his father’s passing because he had no financial assistance for school fees.
     6. The offender states that he cannot read, write and speak English and Pidgin well but remains with a hunger for education and intends to continue with education by undertaking grade 5 if the court imposes a custodial sentence on him.
     7. The offender states that he was formally a security guard with MSU security in Port Moresby and at the village he undertakes subsistence farming when he needs money to survive by selling the garden foods he produces.
     8. The offender has no previous criminal convictions (the antecedent report tendered in evidence).
     9. The offender states that the reason for setting the house on fire was because his father died, his mother and his sister brought in ‘warlords’ from other villages and married them and lived with them in the house (that was burnt down by him) that was built by his father and the offender himself.
     10. The offender states that despite the warning by the community leaders to the mother and sister not to accommodate the warlords, they continued to accommodate the warlords so in order to stop the warlords living in his paternal home, he burnt the dwelling house.
205. The court finds that on the totality of the unproven facts relevant to the mindset of and beliefs of the offender is that the offender is still suffering a long grieving process in relation to his deceased father, the obvious loss of fatherly love and financial support and the offender resents that the mother allegedly remarried and is housing her new husband replacing his beloved father.
206. The balance of the matters that counsel for the offender requests the court to find are unproven facts and without factual basis in submissions or manifestations in the mind of the offender.
207. There is no evidence to prove that the victim-mother is now remarried, that his 2 younger brothers lived with him until he was arrested, charged and on remand, he has a hunger for education and intends to continue with education by undertaking grade 5 if the court imposes a custodial sentence on him.
208. There is no evidence that he was formally a security guard with MSU security in Port Moresby, the reason for setting the house on fire was because his father died, his mother and his sister brought in ‘warlords’ from other villages and married them and lived with them in the house that was burnt down by him and despite the warning by the community leaders to the mother and sister not to accommodate the warlords, they continued to accommodate the warlords so in order to stop the warlords living in his paternal home, he burnt the dwelling house.
209. I reject the unproven assertions made on behalf of the offender in the submissions from his counsel as merely manifestations or ideations of the offender and contrary to the answers provided by the offender in his record of interview during questioning by the police conducted on 20 May 2024 at question and answers 11-25.
210. The antecedent report in evidence is accepted as true by the court as an undisputed fact that the offender has no previous criminal convictions.
211. Otherwise, the assertions put forward by the offender are unproven, and could have been established by his counsel, by leading evidence from the offender or by tendering evidence in documentary form such as business records or payslips (which are easily obtainable) from his employer that from time to time he was employed as a security officer in Port Moresby.
212. This was not done by his counsel or, alternatively, it could not be done because the evidence did not exist in the preparation by counsel for the offender in these sentencing proceedings.
213. I do not rely on that evidence on sentence. I find the evidence offered by the offender is a contrivance by the offender or a recent invention by him to avoid his culpability beyond reasonable doubt in a veiled attempt to persuade the court to sentence him more favourably.
214. The allocutus statement suggests that the offender planned to burn the house down was offered to the court as an excuse for why he burnt the house down in his own mind with no factual support for his position.
215. In the allocutus the offender stated that despite the warnings by the community leaders of the village to the mother and sister not to accommodate the warlords, they continued to accommodate the warlords so in order to stop the warlords living in his paternal home, he burnt the dwelling house.
216. The statement in allocutus amplifies the court’s finding that the offender remains in a state of mind that is contrary to the agreed facts before the court and has used his statement as a device to explain his conduct in an attempt to draw sympathy from the court on sentencing.
217. The statement suggests to this court that the offender is suffering from manifestations collateral to, and departing from, the agreed facts in which he pleaded guilty to before the court.
218. To make these submissions by counsel for the offender offends the principles of approbation and reprobation previously set out and referred to in this judgment.
219. The ideation of the offender, and it seems in his belief, was that the plan was conceived after his father died and after his mother allegedly remarried without evidence to prove his mother had remarried.
220. Therefore, I can be satisfied beyond reasonable doubt that the offender resented his mother allegedly remarrying and harboring warlords in his paternal home despite the fact that these facts have never been proven by the offender.
221. The fact that the offender committed the offence then provided a manifestation of facts is an aggravating circumstance to the offence of arson and the indicator of the absence of remorse.
222. Assessing the objective seriousness of a crime is a synthesis or amalgamation of relevant factors touching and concerning the circumstances of its commission undertaken with the benefit of judicial, legal and life experiences.
223. Reasonable minds may differ as to the conclusion.
224. Arson is uncontroversially a serious crime when referring to the statutory penalty of life imprisonment as punishment.
225. It is my view that arson committed to a family home is an objectively very serious crime beyond reasonable doubt.
226. Despite some evident misunderstanding, it is not necessary in dealing with this issue to state or to describe where on some hypothetical scale of seriousness a particular offence falls.
227. Indeed, references to where, when compared to the often cited middle of the range of objective seriousness, a particular offence falls are ironically so replete with potentially subjective judicial idiosyncrasies that verbalising the conclusion is usually less helpful than might be hoped.
228. The reference to comparative tables of cases from senior judges in criminal matter on sentencing are useful to consider. It is their decision; however, the burden falls squarely on me as the presiding judge to sentence the offender.
229. The sentence must also reflect deterrence against arson being committed by offenders on their families and to protect the citizens of Hela Province as a community I am duty bound to serve.
230. It is the responsibility of a judge passing sentence to indicate clearly his or her view of the objective seriousness of the offence being considered.
231. It is in my view preferable when doing so, and sufficient for me in this case, to say what factors support my conclusion that the burning of the family home of the offender is an objectively very serious offence beyond reasonable doubt.
232. The offender planned to burn his mother’s house down to, in his own intention in effect, “rid the family of the warlords”.
233. Whatever means the offender employed ultimately the house needed to be burnt down and he intended that result.
234. The offender did so in a domestic context and burnt the paternal own home he and his father had proudly built to get rid of the ‘pests’ (the warlords) allegedly living in his home.
235. There is an aphorism well-told in Greece and in the Greek language that aptly provides a useful illustration “A man could not sleep because of fleas in his mattress, so he burnt his house down to get some rest”.
236. In that last respect, and bearing in mind that I have to be satisfied of factors adverse to the offender to the criminal standard, and in the absence of direct evidence, I nevertheless find that the offender has burnt the house down with intent and operating in his mind, with an irrational objection towards his mother allegedly remarrying justified only by his attempt to provide an excuse for his conduct before the court in his allocutus.
237. I am satisfied to that standard because I consider my conclusion to be the only rational inference that the facts permit me to draw beyond reasonable doubt.
238. The offender committed the offence primarily for the selfish and cynical purpose of eliminating the inconvenient obstruction allegedly caused to him by the alleged new warlord husband in the victim’s life living in his house after the passing of his father in 2017 he was unable to resist.
239. The mother and her younger children are faultless and undeserving of their fate in losing their home to the fire caused by the offender’s conduct.
240. Despite the deteriorating state of the relationship between the mother and the offender, she was undoubtedly also completely unsuspecting.
241. Tragically the burning down of the house by the offender deprived the mother and her young children of the ongoing enjoyment of her house so that a significant part of the harm caused to others, and by inference to the community, as a consequence of the house being burnt down and the shock and inconvenience of having to relocate with little left of her family’s possessions and belongings.
242. It defies logic that the offender says now that he built the house together with his deceased father prior to 2017, yet he destroyed it by arson with the hands that built the house.
243. It remains the sad fact that the mother and her young children lost their home, and its obvious memories were treated by the offender as completely dispensable.
244. Ultimately the offer of compensation for the loss or a genuine heartfelt apology directed to his mother and his siblings as victims was not presented by the offender or his counsel in submissions to the court as an act of remorse or contrition or an offer of a scintilla of humanity towards his loved ones as would be expected as a minimum gesture of regret from a son to his family causing the destruction of their family own family home.
     

Subjective circumstances relevant to the offender’s time in custody

245. I find the following facts proven beyond reasonable doubt on sentencing.
246. The offender was 20 years at the time of the offence and is currently 21 years of age, he is not married, he has difficulty reading and writing in both the English and Pidgin language as a result of only attending grade four (4) at Dauli Demonstration School and leaving education behind. He could not continue his education as a result of his father’s death in 2017 leaving him little financial support to continue schooling.
247. Although submitted by his counsel without proof that he worked at MSU security in Port Moresby, I find that his only employment is as a subsistence farmer selling his garden produce to live
248. The offender has no prior criminal convictions.
249. The offender has been on remand since his arrest in relation to the offence from 10 May 2024 at Hawa Correctional Institution, yet no evidence has been led by his counsel as to any courses or training he has undertaken whilst on remand to prove his thirst for education.
250. I take judicial notice from my own observations of Hawa Prison from my mandatory inspection of the prison in late April 2025 as Justice of the National Court and Judge Administrator of Hela Province that the conditions are harsh, there is overcrowding and a lack of amenities, young Offenders are placed into the general prison population and generally the standards of prison comfort, provisions and amenities are chronically poor.
251. I take the prison conditions at Hawa Prison into account in the offender ’s favour on sentence.
252. He appears to be in reasonable physical health.
253. I find he continues to grieve for his father who died in 2017 resulting in the loss of his father’s love and emotional and financial support during a time he was an adolescent which I find was a critical time in his life for his well-being and formative years.
254. He has no record of any previous convictions, and I find he is a young person of prior good character and for associated reasons is highly unlikely ever to re-offend because he carried out his desire to burn down his family home.
255. Although there were no occupants in the dwelling at the time the offender burnt down the family home, it was a matter of fate, not design, by the offender in his patent disregard for his actions and does not minimise the potential risk to the children, his brother and sisters being present, other occupants or family members being present in the house and the potential catastrophic sequalae that the fire could have caused the occupants and, in a broader sense a bushfire in the village or worse affecting the village community.
256. I consider that the offender has poor to moderate prospects of rehabilitation until undergoes mental health assessment in the circumstances and improves his learning skills.
257. I do not have testimonials of his good fame and character from his previous employers or members of the community who can attest to the offender being an upright citizen in his village or in the general community.
258. By committing the offence naturally, he has lost any support from his immediate family members.
259. I find the offender’s statement in court in relation to his remorse and/or contrition poor and ill-prepared.
260. The offender did not apologise to the victims of his offence in open court or at all from the evidence I have considered.
261. I find the excuse to justify the offence by the offender a product of unrealistic and unproven facts created in his mind as ideations or manifestations resulting to a recent invention leading to my finding of contrivance by the offender and he still carries these beliefs despite being in prison on remand for over a year.
262. The apology was underwhelming beyond reasonable doubt relevantly with no discount on sentence following in favour of the offender.
     

Punishment, retribution and deterrence

263. I consider the purposes of sentencing the offender for which a court may impose a custodial sentence on an offender are as follows--
     1. to ensure that the offender is adequately punished for the offence;
     2. to prevent crime by deterring the offender and other persons from committing similar offences;
     3. to protect the community from the offender;
     4. to promote the rehabilitation of the offender to re-enter the community;
     5. to make the offender accountable for his or her actions;
     6. to denounce the conduct of the offender;
     7. to recognise the harm done to the victim of the crime and the community; and
     8. to exercise the discretion of the court’s power to identify how to punish the offender while balancing the offender’s best interest during the transition from full time custody, if imposed, to entering the community upon the granting of parole or serving the entire sentence of imprisonment.
264. I have found that the offender was inspired by an uncontrollable and irrational desire to deliver his own justice following his father’s death in 2017 upon his family by burning down the family home for reasons best known to him while ideating without proof that his mother was allegedly harbouring and allowing warlords in the family home.
265. The actions of the offender were neither spontaneous nor unavoidable.
266. It is a crime that should never be permitted to offer the slightest encouragement to any person similarly placed or similarly minded in the broader community.
267. The offender’s sentence should reflect the disapprobation with which his self-indulgent brutality must be viewed by society in Hela Province and in the broader community across Papua New Guinea.
268. In plain terms, it is not acceptable to burn down someone’s home. The burning down of his family’s home is unacceptable lawlessness and represents a proper vehicle for general deterrence.
269. In contrast, I find there is no need to sentence the offender in a way that specifically deters him from similar reoffending. His aim was to rid the house of the warlords, and he has achieved his own stated goal.
270. There is no reasonably foreseeable prospect that he will ever reoffend.
271. Time will govern his future conduct.
     

Extra curial punishment

272. I find that the offender has endured extra curial punishment for his time on remand in Hawa Prison that is a correctional institution which is barely fit for purpose.
273. The offender did not have the benefit of a pre-sentence report and mental health assessment reports to assist the court in sentencing.
274. I note with the necessary opprobrium that the National Court remains hindered in administering the rule of law in Tari suffering with a recurring disadvantage during the criminal sittings which commenced on 2 June 2025 when these proceedings occurred.
275. The Court notes that the chronic systemic absence in the Hela Province of the following permanent appointments for the province must be remedied urgently:
     1. Public Solicitor’s Office or permanent Public Solicitor in Tari
     2. Public Prosecutor’s Office or permanent Public Prosecutor for the State in Tari
     3. Permanent Public Curator’s Officer (to deal with deceased estates)
     4. Permanent Juvenile Justice Officers
     5. Probation and Parole Officers to prepare pre-sentence reports
     6. Permanent mental health practitioner duly qualified as a psychologist or a psychiatrist;
     7. Other government welfare officers including a Crisis Officer
     8. Permanent juvenile justice court with a trained juvenile justice judicial officer
     9. Permanent juvenile detention centre
     10. Repair maintenance and upgrade of the Hawa Prison to acceptable modern standards including segregation cells and areas for special category inmates.
276. Accordingly, I have also taken these matters into account in the offender’s favour and accede to the proposition that the offender should be granted some concession on sentence into the future on the probable assumption he will serve his sentence in Hawa Prison before he is considered for parole.
277. Relevantly, I discount his head sentence by 5% established by this finding beyond reasonable doubt.
     

Delay

278. I find that the offender committed the offence on 26 February 2024, was then committed to stand trial before this court on 11 December 2024 and the matter came before the National Court for trial on 17 June 2025 before he pleaded guilty.
279. I find his plea of guilty inevitable given his admissions to the police during the investigation and to the mother-victim that he was responsible for burning the house down of little relevance to allow a notional discount in this regard.
280. In the present case, the delay in his prosecution, committal and being brought to trial before the National Court in June 2025 in breach of guaranteed right to be brought to trial within four (4) months after committing the offence under the Constitution regrettable.
281. The delays in fixing the trial for hearing trial is a systemic and chronic issue in Papua New Guinea and are attributable to the operation of the criminal justice system and the relevant administration due to a lack of necessary funding by the State of the courts and the lack of personnel to provide pre-sentence reports and other necessary instrumentalities I have mentioned in this judgment.
282. In the relevant sense on sentencing, it means that I discount his head sentence by further 5%.
     

Special circumstances

283. In this case, counsel for the offender submits that the circumstances of this case do not warrant the maximum penalty of life imprisonment, then by applying the provisions of section 19(b) of the CCA to reduce the head sentence between 2-4 years of imprisonment.
284. Once the head sentence is determined by the court, the pre-custodial period served on remand by the offender of 1 year 1 month and 08 days should be deducted from the head sentence in accordance with Section 3(2) of the Criminal Justice Act from the date of arrest on 10 May 2024
285. The final point made by counsel for the offender is that the head sentence should be wholly suspended in the discretion of the court pursuant to Section 19(f) of the CCA and the offender placed on probation with appropriate conditions during the suspended sentence to permit the Offender to undergo rehabilitation and serve as a deterrent not to commit further offences citing the authority of The State v. Tardrew (supra).
286. The State has submitted that the appropriate sentence for this court to impose on the offender is 3-5 years imprisonment and it is a matter for the court in the exercise of its discretion to suspend any portion of the offender’s sentence.
287. The State then makes the submission that the present proceedings are similar in facts to the State v. Sengi (supra) however the distinguishing facts in that case to the present case is that the offender showed real remorse for committing the offence and partial restitution was made by the offender.
288. The State says in the present case no remorse has been shown by the offender and no attempt has been made by the offender for restitution or compensation to be paid to his victim mother as is customary.
289. I made findings previously is the judgment that no remorse or contrition was presented by the offender in his statement to the court.
290. I find beyond reasonable doubt that no attempt or offer has been made for partial restitution and for completeness no evidence of any restitution has been made by the offender.
291. I am persuaded by the State on sentence by the court’s finding of the relevant facts and by applying the sentencing principles set out in the comparable cases that the range of 3-5 years as a full-time custodial sentence for the Offender is appropriate and should be imposed to reflect a general deterrence
292. I am not persuaded by the counsel for the offender that the offender should be placed on probation with conditions or to suspend the sentence as he still believes that he was justified in burning down his family’s home after serving over a year in prison.
293. The findings in this judgment are clear that beyond reasonable doubt the offender burnt his family’s house which destroyed all the belongings of his family that requires imprisonment of the offender for the serious offence of arson he has committed in all the circumstances referred to in my judgment.
294. Anything less would not in my view accord with a proper application of the sentencing principles for which the CCA provides.
     

Disposition

295. Mr Minai is young man with his life ahead of him if he remains free of criminal conduct but will find incarceration difficult.
296. I am nevertheless required to impose a sentence that satisfies the community’s expectations of punishment, retribution and denunciation.
297. A just and appropriate sentence must accord due recognition to the human dignity of the victims of arson and the legitimate interest of the general community in the denunciation and punishment of someone who deliberately sets fire to a family’s home without remorse.
298. Even though such expectations must be tempered by the need to extend mercy where appropriate, I recognise that the unavoidable prospect is that the offender will remain in prison subject to parole.
     

Order

299. Peter Minai of Komo village in the Hela Province, for the Arson you have committed on your mother’s home on 26 February 2024 in the village of Dauli within the Hulai/Komo District of Hela Province I sentence you to imprisonment for 3 years and 6 months commencing on 10 May 2024 when you were arrested and expiring on 9 November 2027 taking into account your time in custody on remand to date.
300. I direct that the commander of Hawa Prison arranges as soon as practicable but within 8 weeks from the date of this order a mental health assessment of the offender with the administration of the Tari Hospital by a duly qualified psychiatrist or psychologist and a report be submitted by the duly qualified mental health practitioner to the commander for his records.
     

Time in custody

301. As I have said, the offender has been in custody solely relating to the matter since 10 May 2024
302. I have determined that it is appropriate for his sentence to commence on that day.
     

Orders

303. The Court hereby sentences the Offender as follows:

Length of sentence: 3 years and 6 months imprisonment
Pre – sentence Period deducted: 1 year, 1 month and 13 days
Period of sentence suspended: Nil
Length of Sentence to be Served: 2 years, 4 months, and 18 days
Date sentence will expire: 10th November 2027
Place of Custody: Hawa Correctional Institute

__________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the offender: Public Solicitor