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State v Bilak [2005] PGNC 92; N2866 (21 July 2005)

N2866

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR1147/2003

THE STATE

V

PENI BILAK

KOKOPO: LAY, J
2005: 19TH AND 21ST JULY

CRIMINAL LAW – indictable offence – Criminal Code, Subdivision VI.2.B, offences – Section 436, arson – sentence on plea of guilty – offender burned down a dwelling house, acting on the belief that the owner of the house had used sorcery to kill another– steps taken to ensure that no one was in the house – acting in group of others – no physical injury to any persons – bush materials house – planned attack – use of kerosene - offender did not surrender – cooperated with police – no steps taken towards repairing the wrong – prisoner employed as a village peace officer - determination of maximum penalty –offence not prevalent in East New Britain- no expression of remorse - sentence of two years IHL.

Cases Cited:
The State v Ipo Samuel Yomb [1992] PNGLR 261; N1697 The State v Layman Homa; N1710 The State v Akena Pawa [1998] PNGLR 387; N1848 The State v Seye Wasea Bukere; N1992 The State v Gilman Mul; N2410 The State v Andrew Yeskulu; N2563 The State v Enni Mathew; N2418 The State v Robin Warren; N2420 The State v Henry Wamahau Ilomo; N2563 The State v Enni Mathew; N2589 The State v. Prodie Akoi and Steven Akoi; N2811 The State v Bart Kiohin Mais.

Counsel:
Mr. S. Luben for the State
Mr M. Peter for the prisoner

LAY J: The prisoner was convicted on a plea of guilty of the offence of arson of a dwelling house contrary to s436(a) of the Criminal Code.

The brief facts were that on Saturday 26th November 2002 between 12 noon and 1 pm the prisoner was at Naveo Village Watom Island in the company of some others. The prisoner with several other persons went to Maite Alfred’s house and took him to Vunapaipo village, also on Watom Island. At Vunapaipo village they began questioning Maite Alfred about an allegation of sorcery against him. When Maite Alfred left them they went to Maite Alfred’s house at Naveo village. Maite Alfred’s wife Agnes Waninara and the children were at home when the prisoner and other men arrived. On arrival the prisoner and others started throwing stones at the house. Maite’s wife and family fled the family home. The prisoner and his friends proceeded to pull down the bamboo walls of Maite’s house. They then took a plastic container of kerosene and poured it on the bamboo before setting the house on fire.

From the depositions it appears that a relative of the prisoner had been seriously ill and became mentally affected. He named Maite Alfred as the person who had worked some sorcery against him.

The prisoner is now 36 years old with a wife and seven children. He has spent a month in custody and the rest of the time until trial he has been on bail. Until the offence he was employed at K100 fortnight as a village peace officer.

In mitigation it was submitted that the prisoner is a first offender and that the offence was committed in the belief that the victim, Maite, was involved in sorcery. There is a strong belief up to the present time that the victim is a sorcerer. There is some suggestion in the depositions that the prisoner was affected by alcohol.

In aggravation the State submitted that although it was a bush materials house that was burned, the family lost all of their belongings in the fire. The prisoner was a peace officer; he should have assisted in sorting out the problem rather than joining the group making trouble. It was a deliberate planned act as shown by the prisoners Record of Interview. When the prisoner went to the village it was with the intention of setting fire to the house.

I have considered the following cases:

• The State v Ipo Samuel Yomb [1992] PNGLR 261 Doherty J

A permanent materials building was destroyed at night. There were children in the house which by inference the prisoner would have known. The door was locked from the outside by the prisoner. The fire was pre planned. It was a reprisal for marital problems. Head sentence of 7 years reduced to 5 years recognizing the youth of offender and previous good behaviour. In that case mention is made of the decision of Salika J in The State v Linus Kameko & Pascal Rupert where sorcery was suspected. The fire was at night, burning of a dwelling house whilst the family where asleep inside. The sentence was 5 years IHL.

• N1697 The State v Layman Homa (16/12/97) Vagi AJ, the prisoner was a single villager, there was a guilty plea, burning of a trade store, act done in heat of the moment, retaliation for victim talking about prisoner’s incestuous relationship with cousin sister, loss of K5,000 trade store goods, 2 years IHL.
• N1710 The State v Akena Pawa [1998] PNGLR 387 Lenalia AJ. Burning of a permanent materials house during the daytime, house and contents valued at K80,000. Prisoner a young man but no leniency given on that account. 4 years IHL.
• N1848 The State v Seye Wasea Bukere (8/4/99) Sakora J. Burning of a school building, dispute over a small portion of land and a pig. Prisoner aged 22 years. 4 years IHL.
• N1992 The State v Gilman Mul (19/4/2000) Sawong J. Burning of mothers bush materials house, all relatives personal effects lost, no one in the house, kerosene used. 2 years IHL.
• N2410 The State v Andrew Yeskulu (24/4/2003) Kandakasi J. Burning down of classroom of bush materials, teaching materials lost, kerosene used, land dispute claimed as reason. His honour suggested arson falls into following categories:
  1. Dwelling house with people inside;
  2. Dwelling house unoccupied;
  3. public institutional buildings such as schools, hospitals or offices with occupants inside;
  4. public institutional buildings with no occupants;
  5. house wind or garden house or a run down & deteriorating or incomplete structure.

The court considered other factors for consideration were the type and value of the building, whether the act was pre meditated, and whether kerosene was used. The Court suggested that in future cases for categories 1 – 4 above there should be a starting point of 10 years as his Honour found the offence prevalent in the place he was sitting. In the particular case the sentence was 7 years IHL wholly suspended on conditions including restitution of the burned building and free labour to the school for 7 years.

• N2418 The State v Robin Warren (20/6/2003) Kandakasi J. Burning down of 19 bush material houses and burning of 2 vehicles. Guns were used to intimidate occupants. No remorse shown. 15 & 16 years IHL imposed on prisoners.
• N2420 The State v Henry Wamahau Ilomo (1/5/2003) Kandakasi J. Burning of bush materials dwelling house, kitchen and firewood shed. Retaliation for suspected sorcery death of sister. 7 years IHL wholly suspended on terms including restitution.
• N2563 The State v Enni Mathew (29/10/2003) Kandakasi J. Armed raid (no guns) in retaliation for Court win in land dispute. 4 houses burned. Also a conviction for deprivation of liberty. Prisoners sentenced to 12 – 14 years IHL to be served concurrently with sentences for deprivation of liberty.
• N2589 The State v. Prodie Akoi and Steven Akoi (25/3/2004) Kandakasi J. Guilty plea, first time offender, 2 houses burned down, one occupied by a baby boy who was saved just in time. Value of items lost K64,000. Offer of restitution refused by victim. Allegation that prisoners deceased brother moved the coffin to point out the sorcerer responsible for his death. Offence common in Sepik and highlands provinces. 10 years IHL, 5 years suspended on terms including 8 hours per week community service.
• N2811 The State v Bart Kiohin Mais (23/3/05) Cannings J. Burning of dwelling house of part permanent materials and loss of personal property. Spontaneous attack in belief victim had stabbed a brother of prisoner, which was true and constituted some de facto provocation. Isolated incident, co-operated with police. Expression of remorse and tangible efforts to make restitution. Guilty plea. No one in the house. 2 years suspended sentence subject to conditions including probation of 2 years during which 6 hours per week community service must be given.
  

In this case the prisoner said on his allocutus it was his first offence and the first time for him to follow the group of young men who caused the trouble. He asked for a good behaviour bond.

The factors which aggravate the offence are that the prisoner was employed as a village peace officer, that the occupants of the house were chased out, that the occupants lost most of their personal belongings, and that it was a planned attack and kerosene was used resulting in the loss of the occupants home. The prisoner, being a peace officer, should have been aware that taking the law into your own hands is not the way to proceed in any complaint against another person.

There has been no expression of remorse and no restitution, which are neutral factors.

The factors which mitigate are that the prisoner is a first offender, he admitted his guilt to the police and entered a guilty plea in this court, that the offence was committed in daylight hours, that there was no one in the dwelling when it was put on fire and that the prisoner knew that to be the case, and that the house was of bush materials and inferentially not of significant monetary value. There was some belief in sorcery as the basis for the prisoners action.

In considering the appropriate sentence I have some difficulty with the starting head sentence of ten years suggested by Kandakasi J in N2410 The State v Andrew Yeskulu and approved by Cannings J in N2811 The State v Bart Kiohin Mais . Sitting here in Kokopo I have perused the Bail and Remand lists and the Bench Warrant list and in a total of over three hundred cases only 7 are charges of arson. Therefore, unlike the position found by Kandakasi J in the Sepik and Highlands, the crime of arson does not appear to be one which could be described as prevalent. That would suggest that the sentences which have been imposed in the past in the range of 2 to 5 years are having the desired deterrent effect, at least in East New Britain Province.

Taking into account all of the above factors I consider the appropriate sentence in this case to be one of two years hard labour and a warrant will issue for that sentence. I do not consider that a suspension of any part of the sentence would be appropriate because the prisoner is a mature man who was holding a responsible position, he has made no restitution nor expressed any remorse for his actions. Returning him immediately to his village, would, I am sure, send a message that he has been ‘let off’ very lightly, which would not be an appropriate message in the case of a law officer. In addition I am not equipped with any pre-sentence report and so I am unaware whether the prisoner has the means to make restitution or whether the victims would be prepared to accept restitution in lieu of a prison sentence or part thereof, or of the attitude of the community to his return.

Lawyers for the State : Public Prosecutor
Lawyers for the Defendant : Public Solicitor