N11219

PAPUA NEW GUINEA 
[NATIONAL COURT OF JUSTICE]

CR NO. 1973 OF 2023

STATE

V

JOSHUA DAMU
Prisoner

BUIMO/BULOLO/LAE: POLUME-KIELE J
8 APRIL, 30 SEPTEMBER, 4, 7 & 14 OCTOBER 2024
13 JANUARY 2025

CRIMINAL LAW – Plea of guilty - 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)- Sentenced to 5-year imprisonment – pre-sentence period deducted – s 3(2) – Criminal Justice (Sentences) Act - balance to be served in custody.

Facts

On 24 July 2022, between 11.30 a.m. and 12 noon, Joshua Damu was at the Papua New Guinea Forest Products Company Hydro Project site, situated at Baine Creek, Bulolo. He was in the company of several accomplices. They were armed with guns and other offensive weapons. Whilst at the site, a blue Toyota Landcruiser Ten-Seater, Registration No. EAI; 834 driven by a person by the name of Mina Garo drove by. The accused and his accomplices rushed out of their hiding, blocked the road and shot Mina Garo in the face and then set the vehicle on fire. This matter was reported to the police. On 26 March 2023, the accused was apprehended and charged with one count of arson contrary to s 436(f) of the Criminal Code Act.

Cases cited
SCR No 1 of 1984: Re Maximum Penalty [1984] PNGLR 418
Avia Aihi v The State [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
The State v Kikimbe [2016] N6180
State v Francis Kawai Kake (2013) N5131
State v Mondo Baundo (2007) N5045
Yalibakut v State [2006] SC890  
The State v Samson [2005] N2799  
State v Ipu Samuel Yomb [1972] PNGLR 261
State v Wasea Kukere (1999) N1848 
State v Rex Sengi [2015] N6087

Counsel
Mr. Stefan Wussik, for the State
Mr. Joshua John, for the prisoner

SENTENCE

1.	POLUME-KIELE J: On 4 October 2024, the prisoner was indicted for one count of arson contrary to s 436 (f) of the Criminal Code Act. He entered a plea of guilty to the charge. The State also invoked s 7 (1) (a) (b) (c) (d) of the Criminal Code.

The Charge 

2.	The offence attracts the maximum penalty of life imprisonment subject to s 19 of the Criminal Code. The provisions of s 436 (f) of the Criminal Code states:

"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 stack of mineral or vegetable fuel; or
(e) a mine, or the workings, fittings or appliances of a mine; or
(f) an aircraft or motor vehicle,
is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life."

Arraignment

3.	On 7 October 2024, prior to the commencement of trial, the prisoner was arraigned and the brief allegations as presented by the police were read out to the prisoner. 

4.	The brief allegations were that on 24 July 2022, between 11.30 a.m. and 12 noon, the prisoner was at the Papua New Guinea Forest Products Company Hydro Project site, situated at Baine Creek, Bulolo and that he was in the company of several accomplices. They were armed with guns and other offensive weapons. They held up a blue Toyota Landcruiser Ten-Seater, Registration No. EAI; 834 driven by a person by the name of Mina Garo and shot Mina Garo in the face. He then set the vehicle on fire. 

5.	On being arraigned, the prisoner maintained his plea of guilty to the charge of arson under s 436 (f) of the Criminal Code. 

Committal Court Disposition

6.	Upon the prisoner pleading guilty to the charge of arson contrary to s 436 f) of the Criminal Code Act, Mr. Wussik for the State tendered the Bulolo District Court Deposition into evidence by consent which comprised of the following: 

(i)	The Record of interview both the original pidgin dated 28 March 2023 and English Translation Version also dated 28 March 2023 (CR 1973 of 2024) which is on the Court File contained admissions made by the prisoner to the Police Investigating Officer that he was on 24 July 2022, he involved in the burning of a blue Toyota Land Cruiser (10 Seater Vehicle) during a hold-up in an area close to the new construction site of a new Hydro Power Station close to Baimi Village, Yamap, Bulolo, In the Record of Interview, Questions and Answers Nos: 5, 22 to 33 and 42 and 48 of the Record of Interview. 

7.	Upon reading the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted. 

8.	The prisoner was then convicted for one count of arson contrary to 436 (f) of the Criminal Code.

Issue for Determination

9.	The issue before the Court is to determine an appropriate penalty to be imposed on the prisoner.

Antecedent Report

10.	Prior to administering the allocutus, Counsel for the State tendered into evidence, an undated Antecedent Report on the prisoner. The report disclosed that the prisoner is about 29 years old and is from Mutzing, Markham. At the time of the offence, he resided at Crusher, Bulolo. The prisoner has no formal education. He is married with four children (between the ages of 1 and 4 years) respectively. The prisoner has no prior convictions. 

Pre-Trial Detention

11.	The prisoner is on remand since his surrender to the police and committal proceedings. He was remanded on 25 September 2023 and has been in custody for a period of 1 year 3 months 13 days.

Allocutus

12.	In administering allocutus the prisoner was given the opportunity to speak on the 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 company, his parents and the church community for the wrongs that he had done. He asked that he be placed on probation so that he can return to the Church which has provided support to him and his family and will continue to work with the church to help the young ones so that they don’t get involved with crime and stay clear of trouble. The prisoner also stated that he has no family to take care of his young family and seeks to be placed on a good behaviour bond or pay a fine.  

Pre-Sentence Report

13.	As the prisoner has sought to be placed on some probationary orders, the Court directed that the Probation Officer prepare a Pre-Sentence Report (PSR) and have it filed by 14 October 2024 for purposes of assisting this court determine the severity of sentence.

14.	This court is grateful for the promptness in the preparation of the Pre-Sentence Report by the Probation Officer, Ms Shirley Kwam. The report in summary revealed the prisoner has no formal education and has no means of stable employment to maintain himself or his family of 5. (wife and four young children). He is, however, residing within a church compound and does God’s work. He says that he is supported by the Church members and plans to continue with doing God’s work. He plans to return to his wife and children and take care of his responsibilities as a husband and father. 

15.	The prisoner expressed remorse for his actions and realized his mistakes and now faced the consequences of his actions. He asked the Court to consider placing him on probationary orders on terms. He also undertakes to comply with the orders of the Court, attend church and participate in church assigned programs and continue with mission work. He also promised not to re-offend and to stay out of trouble.

16.	He also plans to apologize to the people that he has wronged and to ask for forgiveness. Whilst he acknowledges that he has no financial means to compensate and reconcile with the complainants, he however would like them to find it in their heart to forgive him for his actions.

17.	In terms of community view, I note that Pastor David Gedion of the Revival Centers of PNG in Bulolo, is supportive of the prisoner and has provided accommodation to the accused and his family. He states that the prisoner is a spiritual member of his congregation. He stated that he wished to go back to the Church and continue with his mission work.

18.	The Probation Officer, in her 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 given a part-sentence of eight years, four years imprisonment and the other four years on probationary supervision on terms.

(2)	Be of good behaviour at all times

(3)	Not to reoffend whilst on probationary supervision

(4)	Any other orders that the Court deems fit.

19.	Whilst I appreciated the assessment prepared by the Community Based Corrections Office, and the undertaking given by the Pastor of the Revival Centre of PNG, Bulolo noble, I am not convinced that the explanation given by the prisoner in his reasons for what he did is genuine. He appears to the leader of the gang that held up the driver of the vehicle which he burnt, and the accomplices are still at large. Generally, crime is on the increase in the Bulolo-Wau area and to curb such lawlessness, the Courts have to be looking towards protecting the community from such lawlessness by imposing penalties which befit the crime.

Mitigating factors

20.	The prisoner is a first-time offender and entered an early plea. 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. He expressed remorse during his allocutus and has no prior conviction.

Aggravating Factors

21.	The aggravating factors against the prisoner is that his actions was violent and frightening for the passengers of the vehicle which was held up at the relevant period of the offending. The incident caused a lot of fear within the affected community. These actions also have an adverse impact on the operation of the company, who is the owner of the vehicle which was burnt down. It also affected its employees and its investment within the area. The action of the accused also is one where he took the law into his own hands, which greatly impacted the country’s reputation as a safe and secure country in which one is able to come in to invest and do business.

Sentencing principles

22.	It is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst types of case. For this present case, 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:( see 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, Goli Golu v The State [1979] PNGLR 653).

23.	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.

24.	Further the  principle in determining sentence is that each and every case should be decided on its own peculiar facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38

Submission 

25.	Mr. John, in his submission on sentence for the prisoner 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, he  also submitted that this court has considerable discretion to impose the maximum penalty by virtue of s 19 of the Criminal Code Act and that offence of arson carries a maximum penalty of life imprisonment. However, in order to determine the appropriate sentence, it is trite that the maximum penalty is reserved for the worst type of case in question: (see Hane v The State [(supra)  Golu v The State (supra);  issues such as relevant facts and circumstances of the present case must be considered carefully to assist this court determine an appropriate penalty: see Lawrence Simbe v The State  (supra) 

26.	In addition, Mr. John also submitted several mitigating factors that should be weighed appropriately in favour of the prisoner. These factors are that the prisoner is a first-time offender, he has entered an early plea, thus saving the Court’s time in running a full trial and saving costs to the State. Further, 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 including his expression of remorse during the administration of his allocutus and that he has no prior conviction.

27.	Similarly, Mr. John also acknowledged that there exist some aggravating factors against the prisoner. These factors include the fact that the vehicle burnt is valued over several thousand of kina, the prevalence of the crime, which crime is a serious assault, which subsequently led to a fatality. Further, the crime was committed in the company of other persons, who at this relevant time are still at large.

28.	Several case authorities were referred by counsel to support his submission on sentence and this includes the case The State v Kikimbe [2016] N6180], in this case,  the prisoner pleaded guilty to setting fire to a company fuel truck worth a sum of K179,800.00. The prisoner was amongst a group of landowners of the company area. They were frustrated by the conduct of the company in terms of dealing with landowners. They armed themselves and with others set fire to the truck belonging to the company. In handing down sentence, the Court took into account the prisoner’s  early admission and cooperation with the police, genuine remorse towards the company. He was sentenced to 8 years and all of which suspended on the basis of restitution within six months. 

29.	In the State v Francis Kawai Kake (2013) N5131, the prisoner entered an early plea of guilty. The brief facts of the case is that the prisoner set fire to a coaster bus, the property of the victim. The act was motivated by the victim having an affair with the prisoner’s wife. The bus was worth K45,000.00. It was used generally to generate income for the victim and his family. The prisoner was sentenced to 5 years imprisonment.

30.	In the State v Mondo Baundo (2007) N5045, again this is an early plea of guilty matter. The prisoner set fire to the house of the people who he overheard taking responsibility for spearing his pig. He was sentenced to 6 years imprisonment.

31.	In his submission on sentence, Mr. John for the prisoner submitted that the prisoner has shown genuine remorse to the company, the deceased and his family for giving them pain and sorrow. Further, the pre-sentence report is also favourable and recommends that the prisoner is a suitable candidate for part custodial and part supervisory probationary orders. Such a view is also supported by community and church pastors. They spoke well of the prisoner. 

32.	Regarding sentence, Mr. John submitted that the starting point of sentence be set at 10 years, part of which is to be served in custody and the balance to be suspended on terms. However, I note that Mr. John has also referred to a starting point of sentence of 8 years imposed on the prisoner given that the prisoner has entered an early guilty plea, the benefit of doubt should be given in terms of a suspended sentence (see Yalibakut v State [2006] SC890 

33.	 In conclusion, Counsel then refers to a starting point of sentence at 6 years. Given this confusion,  I don’t really know which starting point Mr. John is referring to. Consequently, I will accept that the starting point of sentence would remain at 10 years, since it is referred to earlier in his submission.

34.	Further and in addition, Mr. John also referred to the case of The State v Samson [2005] N2799  which set out the discretionary powers provided for under s 19 of the Code which empowers the Court to impose conditions or terms on prisoners regarding sentence and he invited this Court to exercise discretionary powers  pursuant to s 19 of the Criminal Code to impose “a shorted term of imprisonment. 

35.	He submitted that a shorter terms of imprisonment  under s 19 (1) (a) ; or a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until a fine is paid; s (1) (b), s 19 (1) (c ) or the prisoner may be given good behaviour bond’(s 19 (1) (d) or the prisoner can be discharged and the sentence postponed (19 (1) f) or the court can suspend all or any part of the sentence imposed, subject to conditions (19 (6). 

36.	He concluded that the Court exercise discretion to impose a head sentence of 6 years imprisonment which should be partially suspended, and an order be made for payment of a fine or compensation to be paid by the prisoner and the prisoner to be placed on a good behaviour bond. 

37.	Mr. Wussik for the State submitted that sentencing is a matter for the Court’s discretion as provided for under 19 of the Criminal Code. This Court has wide powers to consider an appropriate penalty.  Further, as is clearly set out in the cases of Ure Hane v The State (supra); Avia Aihi v The State (supra); Golu v The State (supra);  the maximum penalty prescribed for any offence is reserved for the worst form or category of offending for that particular offence. Furthermore, consideration must be given to the fact that not all cases are the same thus the Court must look at the case of Lawrence Simbe v The State [(supra); where the Court stated that “each and every case should be decided on its own peculiar facts and circumstances”. 

38.	Applying all the above principles or factors in determination of sentence, Mr. Wussik submits that the prisoner’s overall demeanour does indicate that the prisoner is not really genuinely remorseful in his approach to making peace with the company and or family of the persons affected by the offending. Here, whilst the prisoner has had ample opportunity to make restitution to the company, there is lack of any evidence of such a gesture. In fact, I note that in the pre-sentence report that their attempts to make contact with the company indicate that their phone call remained unanswered. So basically, there is no feedback from the company affected. Besides, the family of the persons so adversely affected by the events do not wish to discuss this matter. This shows that their loss is immense, they would rather let things be. This then goes to show that the prisoner has not made any genuine attempts for restitution since. 

39.	Overall, Mr. Wussik submitted that this court exercise its discretion to impose a sentence as appropriate as the offending was violent and frightening for the passengers of the vehicle which was held up at the relevant period of the offending. The incident caused a lot of fear within the affected community. These actions also has an adverse impact on the operation of the company, who is the owner of the vehicle which was burnt.  It also affected its employees and its investment within the area. The action of the accused also is one where he took the law into his own hands, which greatly impacted the country’s reputation as a safe and secure country in which one is able to come in to invest and do business. Whilst he acknowledged that the prisoner is a first-time offender with no prior convictions and has 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; The actions of the prisoner was somewhat premeditated. 

40.	Given these matters, I gather from the responses to the questions and answers contained in the record of interview speak for itself. Thus, I am also minded to say that this was a planned attack. The offender had orchestrated the whole plan for the offending, it cannot be said to be a crime of opportunity. This type of offence does greatly affect the people within the community itself and also the business community within the Bulolo and Wau area including the whole country. It portrays a bad image for investment in the country overall.

41.	In terms of comparable case law, I note that Mr. Wussik also referred to the same case authorities cited by Mr. John for the defence so I need not rehearse the deliberations outlined on these cases and thus will consider the principles applicable to arrive at a determination on penalty.

Court’s deliberation on sentence

42.	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 (per Doherty J ) where a number of factors were established in determining penalty which have been adopted and applied in subsequent  judgments. In that case, the accused pleaded guilty to an act of arson 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 several factors down 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

43.	Further in the case of State v Ipu Samuel Yomb (supra), a sentence of six to 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 the time of offence), his plea and prior good behaviour. So going on from this case, the Court had added three other factors or guidelines available to the Court when determining sentence for an offence of arson. These factors are:

(1)	Defendant’s age at the time of offence
(2)	His plea; and
(3)	Prior good behaviour

44.	These 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. 

45.	In applying these guidelines to the present case, whilst I take note that the prisoner, by his own guilty plea, pleaded guilty to setting fire to a company vehicle (Registration No. EAI 834, Toyota Landcruiser (blue) at Baini Creek, Bulolo. I must point out that the offending is a deliberate or reckless act of putting lives at risk; that is setting fire to the vehicle, it was a deliberate cold-blooded planning of the offence, there was complete lack of provocation offered by the occupants of the vehicle. In this case, the vehicle is owned by the PNG Forest Products Limited between 11.30 a.m. and 12 noon on 24 July 2022. The driver of the said vehicle is a person by the name of Mina Garo. The accused and his accomplices came out of the bush, blocked the road, shot the driver in the face and then set the vehicle on fire. 

46.	Given the actions of the prisoner and his accomplices, I must at this juncture say that the factors set out in the case of State v Ipu Samuel Yomb (supra) need to be reviewed as the offence of arson has now expanded to include damages to motor vehicles as in this present case, and may also include  aircrafts, and other mechanical or electrical apparatus of significant value. 

47.	So, in this present case, I am of the view that the six (6) factors or guidelines in determining sentence for an offence of arson as set out in State v Ipu Samuel Yomb (supra) must be reviewed, and I add two more factors; which now makes 11 factors to consider when determining sentence for an offence of arson. These are: 

(1)	Defendant’s age at the time of offence
(2)	His plea; and
(3)	Prior good behaviour
(4)	the deliberate or reckless putting of lives at risk;
(5)	the deliberate pouring of kerosene and setting fire to the roof, knowing that people were inside;
(6)	the deliberate locking of the door, so preventing escape by the occupants;
(7)	the deliberate cold-blooded planning of the offence;
(8)	the value of the house and its contents to the occupants; and
(9)	the complete lack of provocation offered to the defendant by the occupants and their children
(10)	the deliberate setting fire to the motor vehicle without case however bona fide
(11)	The value of the motor vehicle (underlining mine)

(12)	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 dated 10 October 2024. 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. 

(13)	In consideration of the type of penalty to be imposed, I have had the opportunity to peruse the relevant material on the Court’s deposition and the Pre-sentence Report and say this, whilst I note that 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 the run does show that the accused is not really genuine about his remorse. Besides, there had been ample opportunity for the prisoner to make restitution to the company, but he has failed to do so.

(14)	So generally, the prisoner has asked that this court give him an opportunity to make amends and to apologize to the company but there is no indication from the company if it will accept his gesture of making amends. Thus, this request is really not relevant. Further, 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 due to the fact that his accomplices are still at large.   

(15)	In any event 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. With regard to the issue of whether or not to exercise discretion to wholly or partly suspend a sentence, in distinguishing the facts of the case cited by counsel, I am of the view that the set of facts and circumstances in this case show that there is no apparent dispute between the company and the prisoner. The prisoner’s act of arson was done without cause however bona fide [see State v Rex Sengi [2015] N6087 at [26]

(16)	I have considered relevant case authorities referred to by counsel and others 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. In this regard, I have taken note of the factors and guidelines discussed in this judgment and of the view that whilst the prisoner has entered an early plea with no prior conviction, I consider that the aggravating factors outweigh the mitigating factors in favour of the prisoner. In addition, the offending here is a deliberate or reckless putting lives at risk; a deliberate setting fire to the motor vehicle; the value of the motor vehicle and the deliberate setting fire to the motor vehicle without case however bona fide.

(17)	In consideration of the matters discussed and the reasons set out above,  in the exercise of discretion I sentence you, Joshua Damu to a prison term of 5 years in hard labour (State v Francis Kawai Kauke (supra) to be served in CIS, Buimo less the pre-sentence period of 1 year 3 months 13 days which you have been held in custody.

(18)	 With regard to the issue of whether or not to exercise discretion to wholly or partly suspend a sentence, in distinguishing the facts of the case cited by counsel, I am of the view that the set of facts and circumstances in this case shown that there is no apparent dispute between the company and the prisoner. The prisoner’s act of arson was done without cause however bona and therefore am of a view that custodial sentence is appropriate.

48.      Consequently, having convicted you, Joshua Damu, of one count of arson contrary to s 436 (e) of the Criminal Code, you are now sentenced as follows:

(1)	Length of sentence imposed:			5 years
(2)	Pre-sentence period deducted: 			1 year 3 months 13 days
(3)	Balance of term of sentence to be served: 	3 years 8 months 17 days
(4)	Amount of sentence suspended:			Nil 
(5)	Time to be served in custody:			3 years 8 months 17 days

Sentenced accordingly
__________________________________________________________________
Lawyer for the State: Public Prosecutors
Lawyer for the prisoner: Public Solicitor