|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
N3019
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1931 0F 2005
THE STATE
V
BERNARD BAMBAI
Kimbe: Cannings J
2006: 13 February, 23 March
SENTENCE
CRIMINAL LAW – indictable offence – Criminal Code, Subdivision VI.2B (offences relating to property and contracts) – injuries to property – offences – Section 436 (arson) – sentence on plea of guilty.
A man pleaded guilty to one count of arson. He had an argument with his wife and set fire to the family home, rented premises belonging to his employer, the provincial government.
Held:
(1) In the absence of Supreme Court sentencing guidelines the starting point for sentencing for arson regarding a dwelling house is 10 years imprisonment.
(2) Strong mitigating factors identified were that: he acted alone; the offence was not planned; he pleaded guilty; he expressed remorse.
(3) A strong aggravating factor was that he put lives at risk and destroyed a valuable government asset.
(4) The head sentence is three years imprisonment.
(5) Execution of the sentence is delayed for three months to allow restitution to take place.
(6) If restitution is not effected within that period the offender will be required to show cause why he should not be immediately committed to custody to serve his sentence.
Cases Cited
The following cases are cited in the judgment:
The State v Bart Kiohin and Henry Kevi (2005) N2811
The State v Enni Matthew and Others (No 2) (2003) N2563
The State v Henny Wamahau Ilomo (2003) N2420
The State v Leo Koligen and Patrick Michael, CR Nos 281 and 283 of 2004, 08.09.05, unreported
The State v Pelly Vireru and Others, CR Nos 468-473 of 2002, 08.09.05, unreported
The State v Prodie Akoi (2004) N2584
The State v Robin Warren and Others (No 2) (2003) N2418
Abbreviations
The following abbreviations appear in the judgment:
J – Justice
N – National Court judgments
OK – okay; all right
PSR – pre-sentence report
WNB – West New Britain
PLEA
The accused pleaded guilty to arson and the following reasons for sentence were given.
Counsel
F Popeu, for the State
O Oiveka, for the Accused
23rd March, 2006
1. CANNINGS J: INTRODUCTION: This is a decision on the sentence for a man who pleaded guilty to the offence of arson.
BACKGROUND
Incident
2. The incident giving rise to the charge took place at Kimbe in July 2004.
Indictment
3. On 13 February 2006 the accused was brought before the National Court and faced the following indictment:
Bernard Bambai of Penatabotong, Bali, Talasea, West New Britain Province is charged that he on the 1st day of July 2004 at Kimbe ... wilfully and unlawfully set fire to a permanent building serving as a dwelling house valued at K36,162.79 and situated at Section 12, Allotment 7, Kimbe, the property of the West New Britain Provincial Government.
4. The indictment was presented under Section 436 (arson) of the Criminal Code.
FACTS
Allegations
5. The following allegations were put to the accused for the purpose of obtaining a plea.
6. At 3.00 pm on 1 July 2004 the accused had an argument with his wife at their home in Kimbe. At 10.00 pm he returned under the influence of liquor. He gathered his wife’s clothes, threw them on the floor, poured kerosene over them, then set fire to them with a lighted match. The fire spread and burned down their house, valued at approximately K36,000.00. The house was owned by the WNB Provincial Government. He acted intentionally and his actions are not excused by law.
Conviction
7. The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted him. He is now referred to as the offender.
ANTECEDENTS
8. The offender has no prior convictions.
ALLOCUTUS
9. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:
I apologise to the court and to the government and the people of this province for what I have done. It is my first time to be in trouble with the law. I am married with three children, aged 12, 7 and 2 years old respectively. My wife is not formally employed. My mother is deceased and my father is very old and living in the village. I am number seven in a family of nine. I am the only one employed. Since the house was burned down I have continued to pay rent and I am happy to pay compensation. My wife and I have sorted out our problems. Our relationship has become stronger and we regularly attend church activities. I ask for the court’s mercy and leniency.
OTHER MATTERS OF FACT
10. I have considered the matters of fact raised in the depositions and in the allocutus to check whether there is anything favourable
to the offender that has not been raised that may be relevant to the sentence.
I have done this because he pleaded guilty. I note the following:
RELEVANT LAW
11. Section 436 (arson) of the Criminal Code states:
A person who wilfully and unlawfully sets fire to—
(a) a building or structure, whether completed or not; or
(b) a vessel, whether completed or not; or
(c) a stack of cultivated vegetable produce; or
(d) a stack of mineral or vegetable fuel; or
(e) a mine, or the workings, fittings or appliances of a mine; or
(f) an aircraft or motor vehicle,
is guilty of a crime.
Penalty: Subject to Section 19, imprisonment for life.
SUBMISSIONS BY DEFENCE COUNSEL
12. Mr Oiveka highlighted the following mitigating factors: he pleaded guilty; he expressed remorse; he is not a hard-core criminal; there was not a high degree of intention; it was a stupid thing to do and he has already suffered a lot as he lost all his family’s belongings in the fire.
SUBMISSIONS BY THE STATE
13. Mr Popeu did not press for a heavy sentence. He submitted that the offender should be dealt with in a similar way that I sentenced the offenders in a recent Kimbe case, The State v Pelly Vireru and Others, CR Nos 468-473 of 2002, 08.09.05, unreported. In that case the offenders were convicted of arson and malicious damage to property. They had destroyed a house worth K30,000.00 in Gavuvu village in the Hoskins District. I sentenced them to prison terms of two to five years depending on their level of involvement but suspended execution of the sentences for three months to allow for restitution. Likewise in The State v Leo Koligen and Patrick Michael, CR Nos 281 and 283 of 2004, 08.09.05, unreported, I sentenced two arsonists to three years imprisonment for burning down two bush material houses at Kavui. I suspended execution of the sentences for three months to allow for restitution. The sequel to Vireru is that restitution was not effected and all the offenders are now in prison. In Koligen and Michael, restitution was effected and both offenders are serving suspending sentences and subject to community work orders.
PRE-SENTENCE REPORT
14. To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the report follows.
Residence: lives temporarily with mother-in-law near Kimbe, who is prepared to contribute to any order for compensation imposed by the court.
Family: from Bali Island, WNB – has no problems with them.
Marital status: married for 13 years – three children – had a marital problem developed in 2004 when the offender was in Port Moresby for nine months doing a course at the Institute of Public Administration – his wife, Edna, allegedly had an affair – Edna was interviewed and confirmed that the marriage is again stable – does not want her husband sent to gaol.
Education: grade 10 at Kimbe Secondary School (1985) – grade 12 at Kerevat National High School (1987) – Business Diploma, Unitech (1989).
Work: has been employed by WNB Provincial Government as a business development officer since 1991.
Financial status: fortnightly salary from WNB Provincial Government.
Plans: wants to make restitution – can afford to pay K300.00 per fortnight until the sum of K36,162.79 is paid off.
Community history: highly regarded by – Pastor Paul Ronnie of the Kumbango AOG Church; Bernard Penga, Adviser, Commerce and Industry Division, WNB Provincial Government; Willie Waluka, Adviser, Finance Administration, WNB Provincial Government.
Health: OK – the offender says that he did not drink alcohol from 1996 to the date of the incident in 2004 when he got angry with his wife.
Recommended for non-custodial sentence.
DECISION MAKING PROCESS
15. To determine the appropriate penalty I will adopt the following decision making process:
STEP 1: WHAT IS THE MAXIMUM PENALTY?
16. The offender has been convicted of arson under Section 436(a) of the Criminal Code. The maximum penalty is life imprisonment.
17. The court has discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.
STEP 2: WHAT IS A PROPER STARTING POINT?
18. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. In a recent arson case in Buka, The State v Bart Kiohin and Henry Kevi (2005) N2811, I noted the absence of Supreme Court sentencing guidelines for arson. Therefore I developed some relying on a series of decisions by Kandakasi J in, for example, The State v Robin Warren and Others (No 2) (2003) N2418; The State v Henny Wamahau Ilomo (2003) N2420; The State v Enni Matthew and Others (No 2) (2003) N2563; and The State v Prodie Akoi (2004) N2584.
19. For the offence of burning down a dwelling house the starting point is ten years imprisonment.
STEP 3: WHAT ARE THE RELEVANT CONSIDERATIONS?
20. I will now set out the things I consider should be taken into account when determining whether to increase or decrease the sentence or leave it at the starting point.
1 Did the offender cause damage of a relatively low value?
3 Did the offender not put lives at risk?
4 Was there only one offender?
7 Was it an isolated incident?
8 Did the offender give himself up after the incident?
9 Did the offender cooperate with the police in their investigations?
11 Has the offender not caused further trouble since the incident?
12 Has the offender pleaded guilty?
13 Has the offender genuinely expressed remorse?
14 Is this his first offence?
15 Can the offender be regarded as a youthful offender?
Rationale
21. There are, in general, three sorts of considerations listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.
STEP 4: WHAT IS THE HEAD SENTENCE?
22. I apply the above considerations as follows:
2 No he and his family have been directly affected.
4 Yes he acted alone.
7 Yes it was an isolated incident.
8 No the offender did not give himself up after the incident.
9 Yes the offender cooperated with the police in their investigations.
11 Yes he has not caused further trouble since the incident.
12 Yes he pleaded guilty.
14 Yes he has no other convictions.
15 No he cannot be regarded as a youthful offender.
Recap
23. I regard the following as strong mitigating factors:
24. I regard the following as strong aggravating factors:
25. The other factors are not significantly mitigating (Nos 4, 6, 7 and 11) or not significantly aggravating (Nos 2, 8 and 15).
Head sentence
26. After weighing all these factors and bearing in mind that there are seven strong mitigating factors compared to two strong aggravating factors, I consider that the head sentence should be considerably below the starting point of ten years.
27. I accordingly fix a head sentence of three years imprisonment.
STEP 5: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?
28. This is a case where it is appropriate to consider suspending the sentence, given the nature of the offence and the fact that the offender is not considered a risk to the community. He is still gainfully employed by the WNB Provincial Government and his family would suffer more if he is sent to prion immediately.
29. However, the court should not be seen to be going soft on this sort of crime. The offender destroyed an important government asset. Like just about everywhere else in the country public housing is in scarce supply in Kimbe. The offender was in a privileged position as he had a government house in which to live. He abused that privilege by destroying it.
30. Mr Popeu made a sensible suggestion about imposition of a prison sentence. Like other arson cases decided recently in Kimbe the offender should be given the chance to replace the asset he destroyed. He should be given three months to reimburse the Provincial Government or arrange the building of another house equivalent in worth to the one he destroyed. Execution of the prison sentence will be delayed for that period.
SENTENCE
31. The court makes the following order:
Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2006/235.html