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State v Keari [2007] PGNC 185; N4981 (18 September 2007)

N4981

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 868 0F 2007

THE STATE

V

MICHAEL KEARI, VINCENT BISERUA & MATHEW PIKAITO

Buka: Cannings J
2007: 6, 12, 18 September

CRIMINAL LAW – sentence – arson – Criminal Code, Section 436 – three offenders, acting in concert, three victims – guilty plea – sentence of 5 years each

Three young men became angry upon hearing that one of their cousin-brothers had died as a result of being assaulted by a group from other villages. They raided those villages and set fire to three houses. Upon returning to their home village, they were told that their cousin-brother had not died but had been seriously assaulted. They pleaded guilty to three counts of arson.

Held:

(1) When sentencing multiple offenders for multiple offences, the court should arrive at a notional sentence for each offender, for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

(2) The court imposed a total head sentence for each offender of 5 years. The pre-sentence period in custody was deducted, and the rest of each sentence was suspended subject to conditions including rebuilding the houses and other buildings they set fire to, and payment of compensation to all victims, within six months.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
The State v Alfred Awesa CR 1587/2005, 06.04.06
The State v Bart Kiohin Mais and Henry Kevi (2005) N2811
The State v Bernard Bambai CR 1931/2005, 23.03.06
The State v Bonifas Bowa CR 1930/2005, 23.03.06
The State v Jacob Patore CR 32/2005, 27.03.07
The State v Mondo Baundo CR 1320/2006, 24.08.07
The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07
The State v Patrick Michael & Leo Koligen CR 281 & 283/2004, 10.10.05
The State v Pelly Vireru & Spelly Kaiwa CR 468 & 469/2002, 20.12.05
The State v Rex Hekawi Tami CR 1590/2005, 23.03.06
Tom Longman Yaul v The State (2005) SC803

SENTENCES

This was a judgment on sentence for three offenders each convicted of three counts of arson.

Counsel

L Rangan, for the State
P Kaluwin, for the offenders

18 September, 2007

1. CANNINGS J: This is a decision on sentence for three young men from the Wakunai area who pleaded guilty to three counts of arson each, arising from the following facts. The incidents took place around midday on 1 January 2007. They became angry upon hearing that one of their cousin-brothers had died as a result of being assaulted by a group from other villages. They blamed the three people whose houses they burned, and others. They raided those villages, bent on revenge. First they went to Orauri village. They were armed with bows and arrows, knives and axes and had a container of kerosene. They set fire to four semi-permanent buildings belonging to Martin Diviusa worth K4,800.00. Secondly they went to Rerevotal village, still angry, and set fire to three bush-material buildings belonging to Thomas Marisire worth K1,000.00. Thirdly they went to Kovava village and set fire to one semi-permanent building belonging to Tony Atorio worth K1,380.00. They intended to set fire to all buildings and had no lawful justification or excuse for doing so.

ANTECEDENTS

2. None of the offenders has any prior convictions.

ALLOCUTUS

3. They all stressed that they only committed the offences because of what was done to their cousin-brother, Peter Denisius, who had been cut badly with grass knives. They thought he had died, that is why they were so angry. It was only when they went back to their village that they noticed that he had regained consciousness. As for Tony Atorio's house, though it is true that they set fire to it, it was saved, not burned down.

OTHER MATTERS OF FACT

4. As the offenders have pleaded guilty they will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). It is clear that all the offenders co-operated with the police and made admissions when interviewed a few weeks after the incidents. They had removed various items, eg television sets and clothing, from the houses they set fire to and those items were later returned to their owners.

PRE-SENTENCE REPORTS

5. I received pre-sentence reports prepared by Probation Officer Martin Tisivua of the Buka branch of Community Based Corrections. The offenders have similar backgrounds and personal circumstances. They are aged from 25 to 31 years, with no or limited formal education. They have never been formally employed and they have no regular source of income apart from sale of cocoa. Progress has been made towards reconciliation with the victims, through the involvement of village chiefs. The house of Martin Diviusa (the victim in count No 1) has already been rebuilt and the relatives of the offenders appear willing to pitch in and rebuild other buildings and houses destroyed. The report concludes that each offender is suitable for probation supervision.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kaluwin highlighted the guilty pleas and argued that the offences were not in the worst category as the houses were unoccupied at the time the offenders set fire to them and no one was in danger of being killed. The items that were removed from the houses were returned and the reconciliation process has started in earnest. A total sentence of three years for each offender, fully suspended, would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Rangan submitted that this was a very serious case of arson. The offenders took the law into their own hands and custodial sentences should be imposed.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what other sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence periods in custody be deducted?
• step 8: should all or part of each sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The offenders have been convicted of arson under Section 436(a) of the Criminal Code. The maximum penalty is life imprisonment. 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?

10. As I said in another arson case decided in Buka, The State v Bart Kiohin Mais and Henry Kevi (2005) N2811, the starting point for sentencing for the serious offence of burning down a dwelling house should be ten years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED?

11. Before I fix a sentence, I will consider sentences I have handed down in other arson cases recently. These cases are shown in the following table.

TABLE 1: NATIONAL COURT SENTENCES FOR ARSON,
2005-2007, CANNINGS J

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

12. When sentencing multiple offenders for multiple offences, the court should arrive at a notional head sentence for each offender, for each offence, before determining whether the sentences should be served cumulatively or concurrently, then applying the totality principle and deciding whether to suspend any part of the sentences. All offenders had an equal level of involvement in the crimes and their personal circumstances are similar. Therefore it is appropriate to impose the same sentences on each offender.

13. I will first consider count No 1 (setting fire to Martin Diviusa's four semi-permanent buildings worth K4,800.00). I will fix a head sentence for it after applying a range of considerations, highlighting the mitigating and aggravating factors. Then I will fix head sentences for count No 2 (setting fire to Thomas Marisire's three bush-material buildings worth K1,000.00) and No 3 (setting fire to Tony Atorio's semi-permanent building worth K1,380.00).

Count No 1: setting fire to Martin Diviusa's four semi-permanent buildings worth K4,800.00

14. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 7 focus on the circumstances of the incident. Numbers 8 to 13 focus on what the offenders have done since the incident and how they have conducted themselves. Numbers 14 to 16 look at the personal circumstances of the offenders and give an opportunity to take into account any other factors not previously considered.

1 Did the offenders cause damage of a relatively low value? No, a person's home is their "castle" – whether it is a mansion on Touaguba Hill in Port Moresby or a bush material house in a village in Bougainville. The Supreme Court recognised in Gimble v The State [1988-89] PNGLR 271 that any crime that interferes with the peace or privacy of a person's home is very serious. Whatever its economic value, a person's home is sacred.

2 Was there no person or class of persons directly affected by the actions of the offenders? No, a man and his family were directly affected.

3 Did the offenders not put lives at risk? Yes, no one was in the house when it was burned.

4 Was there only one offender? No.

5 Did the offenders not plan the offence in a deliberate and calculated manner? Yes, it was a spur of the moment thing.

6 Did the owner of the property or any other person provoke the offenders in 'the non-legal sense'? Yes, the cause of the problem was that some people badly assaulted the offenders' cousin-brother, whom they thought had died.

7 Was it an isolated incident? Yes.

8 Did the offenders give themselves up after the incident? No.

9 Did the offenders cooperate with the police in their investigations? Yes.

10 Have the offenders done anything tangible towards repairing their wrong, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what they did? Yes, the reconciliation process has started. The victim's house has been rebuilt.

11 Have the offenders not caused further trouble since the incident? Yes.

12 Have the offenders pleaded guilty? Yes.

13 Have the offenders genuinely expressed remorse? No.

14 Is this the first offence? Yes.

15 Can they be regarded as youthful offenders? No.

16 Are there any other circumstances of the incident or the offenders that warrant mitigation of the head sentence? Yes. Other than this one-off incident they seem to have been well regarded in their local community. They have each received a favourable pre-sentence report.

Recap

15. The mitigating factors are:

• No 3 – lives not at risk;
• No 5 – offence not planned;
• No 6 – de-facto provocation;
• No 7 – isolated incident;
• No 9 – co-operated with police;
• No 10 – reconciliation has started;
• No 11 – no further trouble;
• No 12 – pleaded guilty;
• No 14 –first-time offenders;
• No 16 – favourable pre-sentence report.
  

16. Aggravating factors are:

• No 1 – damage of high value;
• No 2 – a man and his family were directly affected;
• No 4 – group raid;
• No 8 – did not give themselves up;
• No 13 – did not express remorse;
• No 15 – not youthful offenders.
  

17. After weighing all these factors (10 mitigating versus 6 aggravating) and comparing this case with other recent arson cases, a head sentence below the starting point is warranted. I therefore impose a head sentence of six years imprisonment.

Count No 2: setting fire to Thomas Marisire's three bush-material buildings worth K1,000.00

18. The value of these buildings is less than in count 1, but there is no evidence that Thomas Marisire's house has been rebuilt. I impose a head sentence of five years.

Count No 3: setting fire to Tony Atorio's semi-permanent building worth K1,380.00

19. It appears that the offenders set fire to Tony Atorio's house but it was not destroyed. I impose a lesser sentence of four years imprisonment.

Summary

20. The total potential sentence each offender is facing is:

6 years + 5 years + 4 years = 15 years imprisonment.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

21. I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together). In Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 the Supreme Court held that in deciding whether sentences should be made concurrent or cumulative the following principles apply:

(i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii) Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii) When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

22. I consider that, though the offences were part of a single transaction there were three different victims, so the sentences should be served cumulatively.
The total sentence, subject to the totality principle, is 15 years imprisonment.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

23. I now look at the total sentence each offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence. I consider that 15 years would be excessive. Having regard to all the circumstances, especially the reasons for the commission of these offences, I impose a total head sentence for each offender of 5 years apportioned as follows: count 1 (2 years); count 2 (18 months); count 3 (18 months).

STEP 7: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

24. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody. They have all been detained at Buka police lock-up since 10 January 2007, a period of eight months, one week.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

25. Sections 19(1)(f) and (6) of the Criminal Code allow the National Court to suspend all or part of a sentence, provided that the offender enters into a recognisance (a pledge) to comply with conditions set by the Court. In most arson cases, I have suspended the sentences on condition that the offenders make restitution and/or pay compensation to the victims within a certain period. In some cases the offenders have been unable to comply with the conditions and have been committed to custody to serve the rest of their sentences. In the present case I have decided to suspend the sentence even though it is a serious case of arson, in view of the favourable pre-sentence reports. The amount of compensation is meant to reflect not only the economic value of the house that has been destroyed but also the fact that it is somebody's home. The victims must be compensated for the trauma, distress and inconvenience they suffer when their home is burned down. I will suspend the rest of each sentence on the following conditions:

(a) must within six months after the date of sentence rebuild all buildings destroyed plus pay cash compensation to the victims and participate in a reconciliation ceremony supervised by the local council of chiefs and witnessed by the Probation Officer, the cash compensation being –

• Martin Diviusa = K800.00;
• Thomas Marisire = K400.00;
• Tony Atorio = K300.00;
  

(b) must attend the first sittings of the National Court at Buka in 2008, to demonstrate compliance with condition (a);

(c) must reside at the village and nowhere else except with the written approval of the National Court;

(d) must not leave Bougainville without the written approval of the National Court;

(e) must perform at least six hours unpaid community work each week at each of the offenders local church under the supervision of the Parish Priest;

(f) must attend Church every weekend for service and worship;

(g) must report to the Probation Office at Buka on the first Monday of each month between 9.00 am and 3.00 pm;

(h) must not consume alcohol or drugs;

(i) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;

(j) must have a satisfactory probation report submitted to the National Court Registry at Kokopo every three months after the date of sentence;

(k) if any one of the offenders breach one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

26. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

27. Michael Keari, Vincent Biserua and Mathew Pikaito, having each been convicted of three counts of arson, are each sentenced as follows:

Sentenced accordingly.
________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offenders