N6087

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 307 OF 2015

STATE

V

REX SENGI
Defendant

Kainantu/Goroka: Polume-Kiele J
2015: 15, 31 July
2015: 27 August

CRIMINAL LAW – Sentence – Arson – Criminal Code, Section 436 (a); maximum penalty for arson subject to Section 19 is imprisonment for life. 
CRIMINAL LAW - Sentence - The starting point for sentencing for arson is 6 years to 7 years imprisonment (State v Ipu Samuel Yomb [1972] PNGLR 261) guidelines applied).
CRIMINAL LAW - Sentenced to 2 year imprisonment – The 2 year sentence wholly suspended on terms, s 19 Criminal Code Act

Facts:
The brief facts are that on the 11th day of December 2013 at around 2.30 am, at Tuempinka Village, Kainantu, Eastern Highlands Province, the prisoner, Rex Sengi was drunk and consequently assaulted a school teacher namely Albert Hilton. The prisoner then entered the Tuempinka Primary School Staff Office and set on fire the said Staff Office Building and as a result, the fire burnt the louvers, curtains and fly wires of Staff Office building and some school materials contrary to s 436 (a) of the Criminal Code Act.

Held:
The maximum penalty for arson subject to Section 19 is imprisonment for life under Section 436 (a) of the Criminal Code.

(2) The starting point for sentencing for arson is 6 years to 7 years imprisonment (State v Ipu Samuel Yomb [1972] PNGLR 261) guidelines applied).

(3) Mitigating factors: not a premeditated attack; first-time offender; some restitution has been made.

(4) Aggravating factors: a wilful and unlawful act. The accused set fire to a building or structure which is the Staff Office Building of the Tuempinka Primary School. 

(5) Sentenced to 2 years imprisonment. The 2 year sentence wholly suspended on terms, s 19 Criminal Code Act

Cases cited
Avia Aihi v The State [1982] 92
SCR No 1. Of 1984: Re Maximum Penalty [1984] PNGLR 418 
State v Andrew Yeskulu (CR 1431 of 2002) N2410
State v Bart Kiohin Mais (2005) N2811
State v Gilman (2000) N1992
State v Henry Wamahau Ilomo (2003) N2420 
State v Ipu Samuel Yomb [1972] PNGLR 261
State v Layman Homa (1997) N1697
State v Wasea Kukere (1999) N1848
Ure Hane v The State [1984] PNGLR 105 

Counsels: 
Ms. B Gore, for the State
Mr. John Biki, for the Defendant

JUDGMENT ON SENTENCE

27 August, 2015 

1.	POLUME-KIELE J: The prisoner appeared before me on the 15th of July 2015 and pleaded guilty to one count of arson contrary to s 436 (a) of the Criminal Code Act. The offence of arson under s 436 (a) of the Criminal Code attracts the maximum penalty of life imprisonment subject to s 19 of the Criminal Code. The provisions of s 436 (a) of the Criminal Code reads:

436	– Arson
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 mine, or the workings, fittings or appliances of a mine; or

(e)	an aircraft or motor vehicle, 

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

The prisoner was granted bail on the 6th of September 2014 and is currently out on extended bail.

2.	The prisoner admitted that on the 11th day of December 2013 at around 2.30 am, at Tuempinka Village, Kainantu, Eastern Highlands Province; he was drunk and went into Tuempinka Primary School, assaulted one of the teachers, namely Albert Hilton. After assaulting the said teacher, he then went further and set on fire the Staff Office building of the Tuempinka Primary School, burning the louvers, curtains and fly wires of the Staff Office Building. 
3.	
Committal Court Disposition

4.	Ms. Gore for the State tendered the Kainantu District Court Deposition into evidence by consent which comprised of the following: 

(1)	The Record of interview both the original pidgin and English Version dated 20th December 2011, CR No. 22 of 2014; marked as Exhibit "A" relating to the defendant Rex Sengi during which he admitted to setting fire to the Tuempinka Staff Office Building on the morning of 11th December 2013 at about 2.30 a.m.

(2)	The Statements of State witnesses namely Albert Hilton, school teacher at Tuempinka Primary School dated 11th December 2013, Ate Mosoka, self-employed of Tuempinka Village, dated 11th December 2013, Joe Mao, self-employed of Tuempinka Village dated 11th December 2013, Police First Constable Freddy Kondowa of Kainantu Police Station and Police Officer Dugi Sigaiya of CID Kainantu Police Station, dated 21st December 2013, respectively all confirmed the identity of the accused and his demeanour at the time of the commission of the offence.

5.	Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted and the prisoner was convicted on the charge of arson prescribed under s 436 (a) of the Criminal Code.
6.	
Antecedent Report

7.	However, prior to administering the allocutus, Counsel for the State tendered the Antecedent Report on the prisoner. The report disclosed that the prisoner is 34 years old and has lived in Tuempinka Village since birth. The prisoner is educated up to Grade 12 level; married with three children (between the ages of 2 and 13 years) respectively. The prisoner has no prior convictions; lives with his parents at Tuempinka Village, Kainantu, Eastern Highlands Province. He comes from a family of 7 (three brothers and three sisters). The prisoner is the second child. Since leaving school, the prisoner has been unable to secure full-time permanent job but has held casual employment for at least 4 years or so. The prisoner is a subsistence farmer.

Pre-Trial Detention

8.	The prisoner is currently out on extended bail. As a note of interest, it appeared that since out on extended bail, the accused has not presented himself in court when his matter was listed for hearing. The non-appearances are noted for the following dates; 27th November 2014, 16th December 2014 and 14th of January 2015 respectively. In fact the only occasion upon which the bail has been forfeited was on the 18th of June 2014, where the bail money of K500 (Receipt No: G 316514 dated 14/01/2014) was forfeited to the State for the prisoner’s failure to appear in court and a warrant of arrest was issued for his arrest. For these noted non-appearances, there are no records of any penalties being imposed. 

Allocutus

9.	In administering his allocutus the prisoner was given the opportunity to speak on question of penalty in accordance with the requirements of s 593 of the Criminal Code. In this regard, the prisoner stated that he was sorry for what he did and apologised to the Court, the Tuempinka Community School Management and community for the wrongs that he had done. He asked that he be placed on probation so that he can return to the School and reconcile with the School Management. The prisoner also stated that he has aging parents who depend on him for their sustenance. He also stated that he has made some form of restitution to the School by way of purchasing replacement curtains and stationary paper. 

10.	However prior to the handing down a decision on sentence, Mr Biki, Counsel for the prisoner had requested that the Community Based Corrections Office (Probation Officer) be directed to prepare a Pre-Sentence Report (PSR) and Means Assessment Report (MAR) on the prisoner. The court in this regard, directed that the Probation Officer prepare a PSR and MAR prior to the 31st of July 2015 for purposes of assisting this court determine the severity of sentence.

Pre-Sentence Report

11.	This court is grateful for the promptness in the preparation of the Pre-Sentence and Means Assessment Reports by the Probation Officer, Mr Bennet Amuino. In this report, the prisoner stated that he wished to go back to the School Board members, teachers and the community to say sorry for what he has done publicly and to refund back all the properties burnt and damaged. In addition, the parents of the prisoner are willing to support their son to pay for the properties that were burnt and damaged and that they have cash in the sum of K1, 000.00 in hand. They also stated that they will pay the damages within three months. The Probation Officer in his overall assessment has recommended that the prisoner is a suitable candidate to be placed on Probation supervision with certain terms and conditions and these are:

(1)	The prisoner be placed on 100 hours of community work orders to be supervised by CBC Office, Kainantu;

(2)	The prisoner report to CBC Office twice a week for counselling;

(3)	A time frame of two months be given to the prisoner to reconcile;

(4)	The prisoner repay for the properties burnt and destroyed and reconcile with the Board members, teachers of Tuempinka Primary School and the community of Tuempinka publicly and that this be witnessed by the Community Based Corrections Officer to furnish this report back to the Court; and 

(5)	The prisoner is to remain in Kainantu and not to change his address or move to other Provinces until his term of Probation is completed.

12.	Whilst I appreciated the assessment prepared by the Community Based Corrections Office, I find the explanation of the prisoner witty as the prisoner is out on bail and has more than ample opportunity to make amends for his wrong doing. Of particular note are the concerns raised by the Board Chairman of Tuempinka Primary School and the Village Court Magistrate who have requested that the prisoner front up at the School to apologise for his actions but to date, has failed to do so and it is now three years since the incident occurred. 

Mitigating factors: 

13.	The prisoner is a first-time offender and has told this court that he has already purchased new set of replacement curtains for the Tuempinka Community School Staff Office Building. Other relevant considerations are that he has entered an early guilty plea and has no prior convictions. The prisoner had also cooperated with the police as explained in the Record of Interview as to what actually happened at the time of the commission of the offence. 

Aggravating Factors

14.	The aggravating factors against the prisoner is that his actions was wilful and unlawful act. The accused set fire to a building or structure which is the Tuempinka Primary School Staff Office Building without any provocation.

Submission on sentence

15.	Whilst it is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst types of case, it should be noted that the crime of arson is a serious crime and thus the question for this court is to consider whether this present case falls within the worst types of case that warrants the imposition of the maximum penalty of life imprisonment as held in SCR No 1. Of 1984: Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v The State [1982] 92, Ure Hane v The State [1984] PNGLR 105. Furthermore, the court has considerable discretion pursuant to s 19 of the Criminal Code to consider whether the maximum penalty should be imposed in the circumstances and for this case, the relevant provisions of s 19 of the Code reads: 

(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–

(aa) … 

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and

(c) a person sentenced on conviction on indictment to pay a fine may be sentenced–

(i) to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and

(ii) instead of being sentenced to be imprisoned until the fine is paid–to be imprisoned for a term (not exceeding the term provided for in Subparagraph (i)) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and

(d) a person convicted on indictment of an offence not punishable with death may–

(i) instead of, or in addition to, any punishment to which he is liable–be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) comply with such other conditions as the court may, in its discretion, impose; and

(e) …; and

(f) when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that–

(i) he shall appear and receive judgment at some future sittings of the court or when called on within a period specified by the court; and

(ii) if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.

(2) … 

(3) …

(4) …

(5) … 

(6) When a court sentences any person convicted under Subsection (1) (d) to a term of imprisonment, it may further order that–

(a) the offender be imprisoned for such portion of that term as it thinks proper; and

(b) the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1)(d) but further conditioned that, if called on, he shall appear and receive judgment in respect of his service of the portion of the sentence.

(7) …

 (8)[9][Repealed.]

(9) …Notwithstanding that restriction of movement is not specified as a punishment for an offence, a court may, in addition to any other punishment or punishments imposed, also impose restriction of movement in accordance with Section 600.

(10) When a court is considering the punishment or punishments to be imposed in any case it shall also consider whether, in the circumstances of the case, restriction of movement is an appropriate punishment.

11. Mr. John Biki in his submission on sentence, submitted that the issue before the court is whether the present case is one of the worst types of offence under s 436 (a) of the Criminal Code Act that attracts a term of life imprisonment. In addition, Mr Biki also submitted that this court has considerable discretion to impose the maximum penalty by virtue of s 19 of the Criminal Code Act. However in order to determine the appropriate sentence, issues such as relevant facts and circumstances of the present case must be considered carefully to assist this court determine an appropriate penalty, Mr Biki submitted that the following mitigating factors should be weighed appropriately in favour of the prisoner. These mitigating factors are:

(i)	The prisoner is a first time offender with no prior convictions;

(ii)	The actions of the prisoner was somewhat not premeditated; 

(iii)	The offender has also purchased some replacement materials which were burnt and gave it to the school, however do acknowledged that no compensation payments have been made. Meanwhile, the offender is willing to pay compensation with assistance from members of his family;

(iv)	The offender has good standing with the community;

(v)	Favourable Pre-Sentence Report from the Community Based Corrections Officer. The PSR spoke highly of the offender

(vi)	The offender had co-operated with the police in that he explained in the Record of Interview as to what actually happened at the time of the offence; and

(vii)	The offence has also greatly affected the offender

16.	In support of his submission on behalf of the prisoner, Mr Biki referred me to a number of numbered case laws. However I only make particular reference to the case of the State v Layman Homa (1997) N1697, this case involved the prisoner, who is a simple villager on a guilty plea admitted to burning down a trade store, an act done in the heat of the moment in retaliation for the victim talking about the prisoner's incestuous relationship with his cousin sister and loss of K5, 000.00 trade store goods. In that case, the Court sentenced the prisoner to 2 years in hard labour. In State v Gilman (2000) N1992, the prisoner burnt his mother's bush material house which resulted in all the relatives losing all their personal effects. The prisoner in this case, had used kerosene to burn the house. There was no one in the house at the material time. The court had imposed a custodial sentence of 2 years. 

17.	Aside from the court handing down a custodial sentence, there are other cases where the courts have in the exercise of its discretion pursuant to s 19 of the Criminal Code handed down suspended sentences and two cases were cited by Mr Biki in his submission in support of a suspended sentence on behalf of the prisoner. These are the cases of the State v Henry Wamahau Ilomo (2003) N2420 and State v Andrew Yeskulu (CR 1431 of 2002) N2410. In State v Henry Wamahau Ilomo (2003) N2420, the prisoner burnt a bush material dwelling house, kitchen and firewood shed. This was in retaliation for the suspected sorcery death of his sister. In this case, Kandakasi J., sentenced the prisoner to 7 years IHL but his Honour in his decision wholly suspended the sentence on terms including restitution. In the case of State v Andrew Yeskulu (CR 1431 of 2002) N2410; the prisoner was charged under s 436 (a) of the Criminal Code and had pleaded guilty to burning down an elementary school classroom. The building was built out of bush material. The offence was committed over some bona fide ownership claim. His Honour Kandakasi J., in this case also imposed a 7 year sentence on the prisoner however, this sentence was wholly then suspended.
 
18.	In the State v Bart Kiohin Mais (2005) N2811, the prisoner in this case had burnt a dwelling house of a part permanent material house which had resulted in the loss of personal property, a spontaneous attack carried out in the belief that the victim had stabbed a brother of a prisoner, which had turned out to be true and constituted some de facto provocation. This was an isolated incident, however, the prisoner had co-operated with the police and expressed remorse and had made tangible efforts to make restitution and had entered a guilty plea. There was no one in the house at the time of the commission of the offence. His Honour Cannings J sentenced the prisoner to 2 years in hard labour, wholly suspended the sentence with conditions including probation of 2 years during which 6 hours per week of community service must be given.
 
19.	Ms Gore for the State, however submitted that the prisoner's overall demeanour does indicate that the prisoner is not really genuinely remorseful in his approach to making peace with the School community. In that the prisoner has shown no concern at all for the education of children from the Tuempinka Community School; most importantly that of his own children who are students of the said School. Whilst the prisoner has had ample opportunity to make restitution to the school, the prisoner has not made any genuine attempts for restitution since out on bail and on that basis, Ms Gore submitted that this court exercise its discretion to impose a sentence as appropriate and to order reconciliation with the School respectively. The court was also reminded to take note of the fact that since the prisoner is out on bail, there has been no genuine attempt made by the prisoner to reconcile with the School Board.

Court's deliberation on sentence

20.	For purposes of the Court's deliberation on sentence, the Courts have unfettered discretion when determining the issue of the severity of sentence. Whilst this Court has wide discretion to determine and impose a penalty other than a term of imprisonment. It is also trite law that each and every case must be considered on its own set of facts and circumstances. With regard to the issue of sentence for the crime of arson, regard is had to the case of State v Ipu Samuel Yomb [1972] PNGLR 261 where the accused in this case pleaded guilty to an act of arson in setting fire to the house occupied by his sister-in-law and her family. The act of arson was in reprisal for the ill treatment of his sister by her husband, who was the brother of the victim of the arson. In handing down her decision in this matter, Doherty J set down a number of factors in determining penalty which have been adopted and applied in subsequent judgments and these were:

(1)	the deliberate or reckless putting of lives at risk;

(2)	the deliberate pouring of kerosene and setting fire to the roof, knowing that people were inside;

(3)	the deliberate locking of the door, so preventing escape by the occupants;

(4)	the deliberate cold-blooded planning of the offence;

(5)	the value of the house and its contents to the occupants; and

(6)	the complete lack of provocation offered to the defendant by the occupants and their children

21.	In State v Ipu Samuel Yomb [1972] PNGLR 261, a sentence of six or seven years was considered appropriate. However, the sentence of seven years was reduced to five years in hard labour. The court took into consideration factors relating to the defendant's age (19 years at time of offence), his plea and prior good behaviour. This guidelines were applied in the case of the State v Wasea Kukere (1999) N1848 where the accused set fire to a pre-school classroom at the Indagen Community School. The accused said that his actions were due to having two disputes with the school, the first dispute involved the land upon which the pre-school was erected and the second related to the killing of his pig by the headmaster of the school. In handing down his decision Akuram J adopted the factors considered by Doherty J in State v Ipu Samuel Yomb (supra) on sentence relating to arson cases and imposed a sentence of four years. 

22.	In applying these guidelines to the present case, the prisoner by his own guilty plea, pleaded guilty to setting fire to the Tuempinka Primary School Staff Office building on the morning of 11 December 2013 at 2.30 am. He was drunk. He also assaulted one of the teachers, namely Albert Hilton. The starting point for sentencing for this sort of crime is between six to seven years imprisonment as held in State v Ipu Samuel Yomb (supra) and whilst there has not been a deliberate or reckless putting of lives at risk; or the deliberate pouring of kerosene and setting fire to the roof, knowing that people were inside; or the deliberate locking of the door, so preventing escape by the occupants; and the deliberate cold-blooded planning of the offence; this court noted that there are two elements of the factors established in the case of State v Ipu Samuel Yomb (supra) are present and do not favour the prisoner and these related to (i) 'the value of the house and its contents …; and (ii) the complete lack of provocation offered to the defendant …." and in this case, the Tuempinka Community School who had no issue whatsoever with the prisoner. 

23.	This court also noted that the prisoner has asked this court to exercise its discretion and show leniency and to explore other alternative forms of sentence which would encourage reconciliation. This request is also supported by the Pre-Sentence Report and the Means Assessment Reports. Furthermore, it is also open to this court to impose further conditions to encourage rehabilitation and punishment such as community service or compensation under the Criminal Justice (Sentences) Act 1986, Criminal Law (Compensation) Act 1991 and Probation Act Ch 381. In consideration of the type of penalty to be imposed, I have had the opportunity to peruse the relevant material on the Court's disposition and say this, whilst the offender has requested for leniency and asked that the court exercised its discretion to impose alternative forms of sentence, the overall demeanor of the offender over the period that the accused has been on bail does not show that the accused is really genuine about his remorse. For instance, a perusal of the court deposition reveals that whilst on bail, the accused has not presented himself in court when his matter was listed for hearing. The non-appearances are noted for the following dates; 14th of January 2015, 16th December 2014 and 27th November 2014 respectively. In fact the only occasion upon which the bail has been forfeited was on the 18th of June 2014, where the bail money of K500 (Receipt No: G 316514 dated 14/01/2014) was forfeited to the State for the prisoner's failure to appear in court and a warrant of arrest was issued for his arrest. The prisoner was arrested and brought before the court on the 1st of September 2014 and consequently remanded into custody at the Bihute Correctional Services Institution. When in custody, the prisoner again applied for bail on the 6th of October 2014 and was allowed bail in the sum of K300. Since out on bail, the prisoner has shown impudence to this court by his non-appearances in court as noted in the deposition dated 14th of January 2015, 16th December 2014 and 27th November 2014 respectively. This sort of conduct is not condoned. There had been ample opportunity for the prisoner to make restitution to the school however, the prisoner has not made any genuine attempts for restitution and most importantly, has shown a real disrespect to the Court system. However, I do note that these non-appearances have not been dealt with by the Courts and therefore do not entirely place the blame on the prisoner. 

24.	Having raised those concerns, this court noted that the overall demeanor of the prisoner over the period since out on bail indicated that the accused is not really genuine about his remorse. In that, if the prisoner cannot even consider a request for reconciliation with the School then this court is left to ask as to whether he can really be able to comply with directions issued by this court? And if I may, also make references to his non-attendances at some of the committal hearings whilst out on bail. So generally, whilst the prisoner has asked that this court give him an opportunity to make amends and to apologise to the School, teachers of the Tuempinka Primary School and the Tuempinka community, this request is really not relevant as the prisoner is not serious about reconciliation with the School Management as far as his overall attitude is concerned. In addition, there is also the doubt as to whether the prisoner will even comply with conditions attached to a probation supervision order as recommended in the Pre-Sentence Report. Furthermore, it is also open to this court to impose further conditions to encourage rehabilitation and punishment such as community service or compensation under the Criminal Justice (Sentences) Act 1986, Criminal Law (Compensation) Act 1991 and Probation Act Ch 381 accordingly.
 
25.	I have considered relevant case authorities to assist this court arrive at a decision and to explore other alternative forms of sentence which would encourage reconciliation which is supported by the Pre-Sentence Report and the Means Assessment Reports. In consideration of the matters discussed above and in the exercise of discretion sentenced the prisoner to 2 years in hard labour (State v Layman Homa (1997) N1697). Whilst the facts here are not similar, the circumstances are that the commission of the offence of burning the Tuempinka Primary School Staff Office building arose immediately after the fight with the school teacher. It can be inferred that this was an act done in the heat of the moment. However the property which was damaged did not belong to the victim of the assault nor had any issue with the prisoner. In addition although, there was no one in the building and the prisoner had not used kerosene to burn the Tuempinka School Staff Office Building (State v Gilman (2000) N1992), two elements of the factors established in the State v Ipu Samuel Yomb [1972] PNGLR 261 are present and thus sentenced the prisoner to 2 years imprisonment. 

26.	 With regard to the issue of whether or not to exercise discretion to wholly or partly suspend a sentence, the cases of State v Henry Wamahau Ilomo (supra) and State v Andrew Yeskulu (supra) are relevant with regard to suspended sentences of 7 years on terms including restitution. In both these two cases, the prisoners were sentenced to 7 years IHL and the sentence was wholly suspended on terms. Again in distinguishing these two cases to this current case, its set of facts and circumstances, there are no apparent dispute between the Tuempinka Community School and the prisoner and the act of arson was done without cause however bona fide. However in the exercise of discretion under s 19 19 (1) (d), 19 (6) and 19 (9) of the Criminal Code, the 2 years sentence is wholly suspended on the following terms:

(1)	The prisoner shall pay for all the damage done to the Tuempinka Community School Staff building within three months;

(2)	The prisoner reconcile with the Tuempinka Community School Board of Management and shall keep the peace;

(3)	The prisoner shall perform 10 hours per week of community service for two years which are to be supervised by the Probation Officer, Kainantu, records of which shall be kept by the Probation Office, Kainantu and made available for inspection (when required); 

(4)	The prisoner is to remain in Kainantu and not to change his address or move to other Provinces until his term of Probation is completed; 

(5)	Failure by the prisoner to comply with any of the above Probation Supervision Orders shall result in the vacation of the terms of this Probation Supervision Orders; and

(6)	The prisoner shall be committed to serve the 2 years sentence at CIS, Bihute. 

Orders accordingly

Public Prosecutors: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner