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State v Dilu [2017] PGNC 248; N6921 (15 September 2017)

N6921

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 457 OF 2015

THE STATE

V

JACOB WAU DILU

Kundiawa: Liosi AJ
2017: 15^th September

CRIMINAL LAW – Sentence – Arson S.436(a) Criminal Code – Plea of guilty – Bush material house – First time offender – Value of Property – estimated at K18,372.60–No proof of value – House and personal belongings completely destroyed – Sentenced to 6 years imprisonment in hard labour less time spent in custody – Sentence partly suspended based on Pre-Sentence Report.

Case Cited:
Gimble v. The State [1988-89] PNGLR 271
State v. Oscar Rebon, Alken Rebon and Nautim Benal (2007) N4996
State v. Mondo Baundo (2007) N5045
State v. Anton Tokakra & others (2007) N3856
State v. Mathew (No. 2) [2003] PGNC 5; N2563

Counsels:

Mr. E Thomas, for the State
Mr. M Yawip, for the Accused

DECISION ON SENTENCE

15^th September, 2017

1. LIOSI, AJ; On the 20^th April 2017, I found you guilty of Arson after you pleaded guilty to the charge and after reading the depositions, I was satisfied that your plea was in order.

2. The facts to which you pleaded guilty are that on the 13^th August 2014 between 12.00 noon and 1:00pm you were in the village at Bomaikule in the Kerowagi District of the Simbu Province. You went over to the dwelling house of the victim Regina Kewage and set fire to the house. The house was a large bush material house and the fire spread quickly and totally burnt the house down within minutes with all the family belongings inside. The total value of the house and the personal belongings of the family that were destroyed in the fire was K18, 372.60.

3. On allocatus, you said yes, you had your own reasons for burning the house. You said the owner of the house got drunk and came to your area, fought your wife and raped her. The village court ordered him to pay K1, 200.00 and 2 pigs as compensation. He ran away and did not settle the village court order for 8-9 months. You therefore got frustrated and burnt the house. What you did brought shame to you and your family. You apologised to the court and asked if you could be put on probation.

4. You are 39 years old and married with 3 children. They are 9, 5 and 3 years old. You are a community leader in your village. Before the offence you were the Kerowagi Catholic Parish Secretary and was involved in church activities in the village.

5. The maximum penalty under s.436(a) of the Criminal Code is Life Year Imprisonment subject to s.19 of the Criminal Code. It is trite law that maximum penalty is reserved for worst case offences. This is not a worst case.
   

6. In mitigation your lawyer submits that you pleaded guilty, you have no prior convictions and you have expressed remorse for your actions. Your lawyer also urges the court to consider the circumstances under which the offence was committed. That there was provocation in a non-legal sense. Your wife was raped by the victims’ brother who was ordered to pay you compensation of K1, 200.00 plus two (2) pigs. He escaped instead of paying you. In respect to the value of the property, he submits this should be disregarded in light of the Pre-Sentence Report.

7. Your lawyer has also cited a number of comparable cases.

• In State v. Oscar Rebon, Alken Rebon and Nautim Benal (2007) N4996,
  the offenders were convicted after a trial. The offenders in a mob attack terrorized the victim and the family and burnt down the permanent house and assaulted the victim. They were sentenced to 10 years each.
  
• In State v. Mondo Baundo (2007) N5045, guilty plea offender become angry for spearing his pig. He went and burnt down their bush material house. Sentence to 6 years.
  
• In State v. Anton Tokakra & others (2007) N3856, the offender was found guilty of burning a permanent building and a bush material kitchen house.

He was sentenced to 10 years.

8. Finally, he submits that you have a favourable Pre-Sentence Report and that you are a suitable candidate for probation. You have been in custody for 2 years 8 months. In the circumstances your lawyer submits that a wholly suspended sentence of 5-6 years is appropriate.

9. The State submits the aggravating factors include the trauma and emotional stress the victim and the families endured whilst watching their house been burnt down. The house burnt was a dwelling house. The value of the property destroyed was K18, 372.00 and items destroyed were household items valuable to simple village families.

10. It submits that the Supreme Court in Gimble’s case [1988-89] PNGLR 271 held that any crime that interferes with peace and privacy of a person’s home is serious. No matter whatever its economic value is a person’s home is sacred.

11. In the State v. Mathew (No. 2) [2003] PGNC 5; N2563, the offenders were found guilty after trial for four counts of arson and one count of unlawful deprivation of liberty. The house burnt down were bush material houses but were dwelling houses. They were burnt down during the course of a tribal dispute. His honour Kandakasi J discussed appropriate guidelines for arson cases in which he set a starting point of 10 years for dwelling houses with or without occupants and public institutions with or without occupants. For house winds and garden houses he set the appropriate starting point at 5 years. It was also held that a wholly suspended sentence may be imposed for cases with strong mitigating factors and a favourable Pre-Sentence Report. The offenders in the case were sentenced to terms ranging from 12 to 14 years.

12. The maximum penalty for Arson under S.436 (a) of the Criminal Code is life imprisonment subject to s.19 of the Criminal Code. Parliament considered this offence as been very serious therefore prescribed the maximum penalty of life imprisonment after consideration of a lot of factors: State v. Yeskulu N2410.

13. I have carefully considered the submissions from your lawyer particularly the circumstances giving rise to your commission of the offense. This circumstances evolved around the raping of your wife by the victim’s brother. Consequently he was ordered by the village court to pay you compensation of K1, 200.00 cash and 2 pigs which to date he has not honoured.

14. Your lawyer also urges me not to consider the value of the property as given in the charge in view of the Pre-Sentence Report. In actual fact there are a number of matters that are raised in the Pre-Sentence Report which are notable and are of interest which should assist me to determine your penalty.

15. Firstly the offender’s wife reports that the house that the prisoner burnt down was normally used for resting and cooking food. She reports the victim’s family and John Arepi used another dwelling place to sleep in. Secondly she states that she is their neighbour and she normally visits that particular house which was burnt. She has seen some cooking utensils only and no other properties in that house. How she states the figure of K18, 372.00 given as been the value of the property is incredible and disputed. The figure is exaggerated as they are all subsistence farmers without regular source of income to claim such amount.

16. In the case of State v. Mathew (supra) Justice Kandakasi discussed appropriate guidelines for arson cases in which he sets a starting point of 10 years for dwelling houses with or without occupants. For house winds and garden houses he set the appropriate starting point at 5 years.

17. Having viewed the Pre-Sentence Report and the court depositions, I can’t seem to find any basis upon which the amount of K18, 672.00 was arrived at as been the value of the property. Neither is there any evidence of whether this was a dwelling house within the meaning of the Act or whether this was a garden house. Given this I give the benefit of the doubt to the offender in determining the appropriate penalty in line with the case of State v. Matthew (supra).

18. In respect of the reasons you advanced for burning the house, that is the alleged rape of your wife and the non-payment of the compensation ordered by the Village Court I say this. In an earlier decision I made (State v. Ulka Ambane Timothy) I took the view that you cannot right a wrong with another wrong. That is that if you think an alleged offence was committed, then the matter must be reported to police. In this case rape is a very serious offence and should have been reported to the police. It is not a matter for Village Court and it is not for you to take the law into your own hands. This is akin to payback. This practice seems to have become the norm in many parts of the country. The Courts have a duty to discourage such illegal practice as it is not in the spirit of the law to justify an action by committing another wrong.

19. Giving you a full probation sentence in my view is encouraging such practice which is illegal and is becoming a norm in many parts of the country.

20. In the circumstances I sentence you to 6 years imprisonment in hard labour. You have spent 2 years 8 months in pre-trial custody which I deduct leaving the balance of 3 years 4 months to be served.

21. The next issue is whether any part of this can be suspended. In the State v. Mathew (supra) the court held that a wholly suspended sentence maybe imposed for cases with strong mitigating factors and favourable pre-sentence report. In my view you have strong mitigating factors and a favourable pre-sentence report. Whilst this is the case I am not persuaded to suspend the whole sentence for the reasons I advanced earlier. Consequently I suspend 1 year 4 months leaving a balance of 2 years to serve.

Ruling accordingly.
_______________________________________________________________
Public Prosecutor : Lawyer for the State
The Public Solicitor: Lawyer for the Accused