N4998

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 881 0F 2004

THE STATE

V

RICHARD SAMBAN

Kimbe: Cannings J
2007: 26 March, 8, 11 May

CRIMINAL LAW – sentence – two counts of malicious damage to property plus two counts of arson – guilty plea.

The offender went on a drunken rampage, destroying household properties belonging to his neighbours and burning down two semi-permanent homes in an oil palm settlement where he lived. He pleaded guilty to two counts of malicious damage to property and two counts of arson.

Held:

(1)	When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle.

(2)	The following notional sentences were passed:

(a)	count 1 (malicious damage to property): 2 years;
(b)	count 2 (malicious damage to property): 1 year;
(c)	count 3 (arson): 4 years;
(d)	count 4 (arson): 3 years;

resulting on a total potential sentence of 10 years.

(3)	Though the offences were all committed as part of a single incident, there were four distinct victims, which means the sentences should be served cumulatively.

(4)	However, the totality principle requires that the total sentence be reduced, to avoid imposition of a crushing sentence. Accordingly the court imposed a total head sentence of 6 years. The pre-sentence period in custody was deducted, and all of the sentence was suspended subject to conditions, including that the offender compensate and reconcile with the victims within three months.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v Alfred Awesa CR 1587/2005, 06.04.06
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 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
The State v Wesley Vireru, Ian Avusi, Jerry Mesmin & John Lalu CR 469, 470, 472 & 473/ 2002, 20.12.05

PLEA

An accused pleaded guilty to malicious damage to property (two counts) and arson (two counts) and the following reasons for sentence were given.

Counsel

F Popeu, for the State
O Oiveka, for the accused

11 May, 2007 

1. CANNINGS J: This is a decision on the sentence for a young man who pleaded guilty to two counts of malicious damage to property and two counts of arson, arising from the following facts:

•	On Thursday 15 April 2004 he was at Dagi oil palm settlement, near Kimbe, between 7.00 and 11.00 pm. He was under the influence of liquor, walking along the road near the oil palm blocks, in the company of others.

•	He went into one of the blocks and became annoyed when someone flashed a torch in his face.

•	He then went on a rampage, first going into Henry Tiotam's block and destroying properties, including cooking utensils, a car windscreen and other personal property, worth K1,460.00. Then he went into Elias Lotu's block and did the same thing, destroying property worth K209.00.

•	He went into Henry Ruben's block, and intentionally burned down his semi-permanent dwelling house and its contents; the damage bill being K4,761.00.

•	Finally he went into Westly Papala's block and intentionally burned down his semi-permanent dwelling house, the value of which is unknown.

ANTECEDENTS

2. He has one prior conviction, for unlawful carnal knowledge committed when he was a juvenile in 1999. Sakora J gave him a two year suspended sentence in July 2004.

ALLOCUTUS

3. I administered the allocutus, ie I gave him the opportunity to say what matters the court should take into account when deciding on punishment. He said:

There was a reason for what happened. I was drunk, yes, but I was not cross or shouting or causing trouble. Then someone flashed a torch in my face. I went into where there were a lot of people playing cards. I said sorry to them and all I wanted to know was who shone the torch at me. They did not answer me, instead they all came rushing at me and to defend myself I started destroying the property. If they had replied in a proper manner, this trouble would not have happened.

I admitted everything to the police and co-operated from the beginning with the arresting officer. I ask for mercy and a good behaviour bond. I promise to faithfully follow any conditions imposed by the court.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty, he is entitled to benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). Giving the benefit of the doubt provides an incentive for accused persons to plead guilty. This saves the State extra resources that would have been committed to the case if a trial were necessary. As for the allocutus, the version of events given by the offender far-fetched. Someone shone a torch in his face – he asked who – they rushed at him – so he destroyed property and burned down two houses to defend himself. That is a gross over-reaction, to say the least. However the prosecutor did not take issue with it, so I will take account of the de facto provocation as a mitigating factor. The prosecutor also pointed out that no-one was in the two houses when they were set on fire. This is another mitigating factor. I accept what the offender says about co-operating with the police. He signed a confessional statement three weeks after the incident.

PRE-SENTENCE REPORT

5. I received a favourable pre-sentence report from the Kimbe office of the Community Corrections and Rehabilitation Service. This has helped me set the head sentence and decide whether any of it should be suspended.

RICHARD SAMBAN 
 
Age: 24-year-old male (aged 21 at time of offences).
Residence: Dagi VOP, 4 km from Kimbe.
Family background: parents are from Maprik, East Sepik Province – raised in WNB – last-born in family of eight – father deceased; mother alive – offender lives with his mother and two sisters at Dagi; his brothers live elsewhere.
Marital status: Single – engaged to a New Ireland lady – intends to marry her upon release from jail.
Education: grade 8.
Employment: never been employed in formal sector.
Health: excellent.
Financial status: earns income from sale of oil palm and cocoa – has a modest deposit in BSP bank account.
Plans: get married; work the family's oil palm block; look after his mother, who is frail.
Victims' attitudes: nothing is reported about the first two victims, Henry Tiotam and Elias Lotu, both of whom had properties destroyed; the other two victims, whose houses the offender burned down, have to some extent forgiven him: Henry Ruben has already received K700.00 compensation from the offender and would prefer to see him ordered to pay compensation rather than sent to jail; the last victim, Westly Papala, says he has forgiven the offender and bears no grudges.
Family's attitude: supportive; his mother regards him as a reliable worker – it is hard for her, without him on the block; his two sisters do not want to see their brother spend a long time in jail.
Attitude of community: no problems before this incident – well regarded in the community.
Assessment: although he has one prior offence, he committed it when he was young and has been a responsible member of the local community – not a troublemaker.
Recommendation: suitable for probation, with counselling, which can be arranged through the Dagi United Church.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Oiveka asked me to place a lot of weight on the guilty plea; the co-operation with the police; the fact that the incident was out of character; and that the offender had a behavioural problem. He has tried to reconcile with the victims. He deserves a chance to make good what he has done wrong.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that there were four different victims so the court should not impose concurrent sentences. Appropriate notional sentences would be two years for each of the malicious damage offences and eight years each for the arson offences, a total of 20 years. This could be reduced to ten years under the totality principle, Mr Popeu submitted.

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 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 period in custody be deducted?
•	step 8: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. For counts 1 and 2 – malicious damage to property at night-time (Section 444(2) of the Criminal Code) – the maximum penalty is three years imprisonment for each offence. For counts 3 and 4 – arson re a dwelling house (Section 436 of the Criminal Code) – the maximum is life imprisonment for each offence. Therefore the maximum is life imprisonment. I have discretion, of course, to impose less than the maximum term and suspend part or all of the sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT FOR EACH OFFENCE?

10. For counts 1 and 2, a useful starting point is in the middle of the available range: 18 months. For the two arson offences, I have said in previous cases that burning down anybody's home is a serious matter. The starting point should be ten years for each offence.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. The following tables show recent sentences I have imposed for malicious damage and for arson.

SENTENCES FOR MALICIOUS DAMAGE, WNB, 2005-2007

No	Case	Details	Sentence	
1	The State v Wesley Vireru, Ian Avusi, Jerry Mesmin & John Lalu CR 469, 470, 472 & 473/ 2002, 20.12.05 	Guilty plea – fight broke out, offenders ransacked properties and a house valued over K30,000.00 – two of their co-offenders were convicted and sentenced for burning the house in question.	2 years,
2 years,
2 years,
2 years

SENTENCES FOR ARSON, WNB, 2005-2007

No	Case	Details	Sentence	
1	The State v Patrick Michael & Leo Koligen
CR 281 & 283/2004,
10.10.05	Guilty plea – victim of arson was alleged to have sexually penetrated the daughter of one of the offenders – offenders were demanding compensation from victim – went with a mob – offenders ordered others to burn down the victim's bush material house. 	3 years,
3 years
	
2	The State v Pelly Vireru & Spelly Kaiwa CR 468 & 469/2002, 20.12.05	Guilty plea – dispute between one of the offenders and brother of a young female – brother damages windscreen on a bus belonging to one of the offenders – offender comes back with co-accused and a fight ensued and a dwelling house valued at K30,000.00 was burnt down. 	5 years,
5 years
	
3	The State v Bernard Bambai CR 1931/2005,
23.03.06	Guilty plea – argument between offender and his wife – offender, drunk, deliberately set a pile of clothes on fire in the living room, causing the house to burn down – government property, valued at K36,000.00.	3 years
	
4	The State v Rex Hekawi Tami CR 1590/2005, 23.03.06	Guilty plea – prisoner suspected victims of stealing his money – pours kerosene and burned a dwelling house whilst under the influence of alcohol – victim and family were asleep in the house at the time.	6 years
	
5	The State v Bonifas Bowa
CR 1930/2005, 23.03.06	Guilty plea – alleged infidelity of wife and victim – prisoner went with an angry mob – dwelling house was burnt down and properties looted – also convicted of stealing.	5 years	
6	The State v Alfred Awesa
CR 1587/2005, 06.04.06	Guilty plea – victim had smashed a beer bottle over offender's head – offender went to victim's house armed with bush-knife – chased everyone away and burned down the house.	5 years	
7	The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07	Trial – offenders were in a mob that attacked the victim's house late in the afternoon – terrorised the victim and his family – burned down the house and assaulted the victim.	10 years	
8	The State v Jacob Patore
CR 32/2005, 27.03.07	Trial – offender deliberately burned down two bush material houses and associated structures on land he owned – apparent motive was to remove the occupants of the houses from the land as they were members of an ethnic group involved in dispute with another ethnic group living on the land – offences were committed late at night – occupants of first house was inside, asleep – occupant of second house was inside one of the associated structures, a chicken-house, and asleep.	10 years	

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

Counts 1 and 2: malicious damage

12. There is not much of a range – zero to three years – to work in. Given the circumstances and the value of the property destroyed, I impose a sentence of two years for count 1 and one year for count 2.

Count 3: arson

13. I will focus on count 3, fix a sentence for it taking into account a list of considerations I have developed in other cases, then compare it with count 4 to arrive at a sentence for count 4. Three sorts of considerations are listed. Nos 1 to 7 focus on the circumstances of the incident. Nos 8 to 13 focus on what the offender has done since the incident and how he has conducted himself. Nos 14 to 16 look at the personal circumstances of the offender. 

1	Did the offender 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 an oil palm settlement in West New Britain. The economic value of the house and properties was K4,7160.70. The fact that the economic value was modest, does not detract from the fact that the real value of the house was very high. This is a serious aggravating factor.

2	Was there no person or class of persons directly affected by the actions of the offenders? No, I presume that this was a family home.

3	Did the offender not put lives at risk? Yes.

4	Was there only one offender? Yes.

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

6	Did the owner of the property or any other person provoke the offender in 'the non-legal sense'? Yes, there was an element of de facto provocation.

7	Was it an isolated incident? Yes.

8	Did the offender give himself up after the incident? Neutral.

9	Did the offender cooperate with the police in their investigations? Yes, fully.

10	Has he done anything tangible about repairing his wrong, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? Yes, he has paid K700.00 compensation.

11	Has the offender not caused further trouble since the incident? Yes.

12	Did he plead guilty? Yes.

13	Has he genuinely expressed remorse? Neutral. He did not actually say sorry in his allocutus.

14	Is this his first offence? No.

15	Can he be regarded as a youthful offender? No.

16	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes. He is well regarded in his local community. He has a favourable pre-sentence report. He has the support of his family.

14. After weighing all these factors (ten mitigating versus three aggravating), comparing this case with the other recent WNB arson cases, a sentence well below the starting point is warranted. I fix a sentence of four years imprisonment.

Count 4: arson

15. Not much is known about Westly Papala's house or how much it was worth. The value was not specified in the indictment. I infer that it did not have a high economic value. It was, however, someone's home, so it is still a serious offence. Against that, a major mitigating factor coming out of the pre-sentence report is that Mr Papala has forgiven the offender and bears no grudges. This deserves a lesser sentence than for the burning down of Mr Ruben's house. I fix a sentence of three years imprisonment.

Summary

16. The total potential sentence the offender is facing is:

2 years (malicious damage) + 1 year (malicious damage) + 4 years (arson) + 3 years (arson) = 10 years.

STEP 6: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

17. 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). I agree with what Mr Popeu submitted. There are four different victims, so the sentences should be cumulative, subject to application of the totality principle.

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

18. I now look at the total sentence the 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 ten years would be excessive. This young man went on a drunken rampage, behaving like an idiot, and he has to be punished. He has to learn a lesson. But I don't think he has to spend ten years in jail to do that. He has a good pre-sentence report, which I have already taken into account in deciding on the sentence for each offence. I consider it, again, in deciding to reduce the sentence. I reduce it to six years and apportion it as follows: count 1: 1 year; count 2: 6 months; count 3: 3 years; count 4: 18 months.

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

19. 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, which is 8 months, 3 weeks, 2 days. 

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

20. Yes. The approach I have been taking in malicious damage and arson cases is to suspend the sentence to allow time for the offender to compensate and reconcile with the victims. This system has worked well so far. It is a form of restorative justice. Often the victims are more interested in getting some compensation than seeing the offenders – in many cases they seem to be friends or relatives of the victims – going to jail. Some people might think that this is going soft on arsonists but I don't think so. I have given a limited amount of time for the offender to sort things out. If it is not done within the time allowed, they go to jail. If the Public Prosecutor thinks this is not a good sentencing practice, he can appeal to the Supreme Court. He has not done so yet so I presume he has no problems with it. I will allow the offender three months to straighten things out with the victims and I have built this into the conditions attached to the suspended sentence, which are.

(a)	must within three months after the date of sentence compensate each of the victims, namely Henry Tiotam, Elias Lotu, Henry Ruben and Westly Papala and participate in a reconciliation ceremony supervised by the Village Court;

(b)	must attend the first sittings of the National Court at Kimbe after the date that is three months after the date of sentence, to demonstrate compliance with condition (a);

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

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

(e)	must perform at least six hours unpaid community work each week at Dagi United Church under the supervision of the Senior Pastor;

(f)	must attend Church every weekend for service and worship and assist the church in its community activities under the supervision of the Senior Pastor;

(g)	must report to the senior Probation Officer at Kimbe 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 victims or their families;

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

(k)	if the offender breaches any 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.

SENTENCE

21. Richard Samban, having been convicted of two counts of malicious damage and two counts of arson, is sentenced as follows:

Length of sentence imposed	6 years	
Pre-sentence period to be deducted	8 months, 3 weeks, 2 days	
Resultant length of sentence to be served	5 years, 3 months, 5 days	
Amount of sentence suspended	5 years, 3 months, 5 days	
Time to be served in custody	Nil – subject to compliance with conditions of suspended sentence.	

Sentenced accordingly.
_________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused