State v Baundo [2007] PGNC 202; N5045 (24 August 2007)

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CRIMINAL LAW – sentence – arson – guilty plea – bush material house – neighbourhood dispute – sentence of 6 years

A man pleaded guilty to arson. He became angered by a report that his pig had been speared, confronted the people allegedly responsible and, still angry, burned down their house.

Gimble v The State [1988-89] PNGLR 271
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

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of arson arising from the following facts. On 28 May 2006 the offender, Mondo Baundo, was at his block at Buvussi, near Kimbe, harvesting oil palm. At 3.00 pm he was informed that the complainant, Rex Ignas, has speared his pig with the intention of killing it. Mondo armed himself with a bow and arrow and confronted Rex's brother, Norman Ignas, asking why they wanted to kill his pig. Mondo went back to his house, got kerosene, found a stick, tied rags around it, poured the kerosene, lit the device and used it to set fire to Rex's house. It was made of bush materials and was completely destroyed. Mondo acted intentionally and without lawful justification or excuse. He has been convicted of an offence under Section 436(a) of the Criminal Code.

I apologise for what I have done. I would not have done it without a reason. They killed my pig but said that a demon killed it. That is why I got angry and burned their house. I would like to reconcile with the victims and help them rebuild their house.

4. As the offender has pleaded guilty he 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 (2006) SC890). He cooperated with the police and made admissions in his police interview.

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

Residence: Buvussi, Section 2.
Family background: mother and father from Gon village, Kundiawa District, Simbu Province – Mondo is second-born in a family of five – family moved to WNB in 1978.
Marital status: married with two children – happily married.
Education: Grade 4, Buvussi Primary School.
Employment: worked as a labourer at Bilomi and Malalimi plantations.
Health: OK.
Financial status: earns income from sale of oil palm.
Plans: continue to raise his family and manage his oil palm block.
Offender's family's attitude: supportive – his wife and his sister do not want him sent to jail – this would create problems for the family.
Victim's attitude: Rex does not want the offender to go to jail – he would prefer that the offender compensates him – Rex and the offender get along OK now but Rex's parents still bear grudge against offender – Rex's father wants K6,000.00 compensation.
Attitude of community: prior to offence his behavioural record in local community was sound – ward councillor speaks highly of him.
Religion: offender member of Evangelical Lutheran Church – involved in church activities and well regarded.
Assessment: not a threat to community – committed offence out of frustration.
Recommendation: suitable for probation.

6. Mr Beli highlighted the guilty plea, that the offender has no criminal record and he has a good pre-sentence report. Three years, fully suspended, subject to payment of K500.00 compensation, would be an appropriate sentence, he submitted.

7. Mr Popeu submitted that though it was only a bush material house that was burned, it was somebody's home. Hence the offence was serious and warranted a sentence of five or six years. The sentence would be suspended subject to payment of K1,000.00 he submitted.

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

9. The offender has 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.

10. As I have said in recent arson cases in this province, the starting point for sentencing for the serious offence of burning down a dwelling house is ten years imprisonment (The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07; The State v Jacob Patore CR 32/2005, 27.03.07).

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

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 over K30,000.00 was burnt down.	5 years, 5 years
3	The State v Bernard Bambai CR 1931/2005, 23.03.06	Guilty plea – a husband-wife argument (between the 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 burned down two bush material houses and associated structures on land that he owned – apparent motive was to remove occupants of the houses as they were members of an ethnic group involved in dispute with another ethnic group living on the land – offences committed late at night – owners of houses inside, asleep.	10 years

12. 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 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.

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 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 offender? No, a man and his family were directly affected.

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

5 Did the offender 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 offender in 'the non-legal sense'? Yes, the cause of the problem was that someone speared the offender's pig and told him a nonsensical story that a demon had killed it. It is easy to see why he was angry.

10 Has the offender done anything tangible towards repairing his wrong, eg offering compensation, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what he did? Neutral. He has not paid compensation but he seems to have made peace with the victim.

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 their local community. He has a good pre-sentence report.

13. After weighing all these factors (11 mitigating versus 4 aggravating), comparing this case with the other recent WNB arson cases, particularly Rebon and Patore (this case is not as serious as them), a head sentence below the starting point is warranted. I therefore impose a head sentence of six years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

14. 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 one day.

15. 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 all of the arson cases I have dealt with in this province I have suspended the sentences on condition that the offenders make restitution 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 report. As to conditions to be set, the most contentious one is the amount of compensation. Mr Beli and Mr Popeu submitted that the figure should be K500.00 and K1,000.00 respectively. I think those amounts are far too low. 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 set the figure at K3,000.00. I will suspend the entire sentence on the following conditions:

16. Mondo Baundo, having been convicted of the crime of arson, is sentenced as follows:

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

Length of sentence imposed	6 years
Pre-sentence period to be deducted	1 day
Resultant length of sentence to be served	5 years, 11 months, 3 weeks, 6 days
Amount of sentence suspended	5 years, 11 months, 3 weeks, 6 days
Time to be served in custody	Nil – subject to compliance with conditions of suspended sentence

National Court of Papua New Guinea

State v Baundo [2007] PGNC 202; N5045 (24 August 2007)