State v Kieth Kwelik (2011) N4335

• Jurisdiction: Papua New Guinea
• Judge: Ipang, AJ
• Judgment Date: 17 June 2011
• Docket Number: CR 600 OF 2009
• Citation: (2011) N4335
• Court: National Court
• Year: 2011
• Judgement Number: N4335

Full Title: CR 600 OF 2009; State v Kieth Kwelik (2011) N4335

National Court: Ipang, AJ

Judgment Delivered: 17 June 2011

N4335

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 600 OF 2009

STATE

V

KIETH KWELIK

Accused

Wewak: Ipang AJ

2011: 2, 9 & 17 June

CRIMINAL LAW – Practice and procedure – sentence on guilty pleas to a charge of arson – Criminal Code Act, Section 436 – offender acted alone – set fire and destroyed a semi-permanent building which housed residence and kitchen – in retaliation after victim assaulted offender’s brother who sustained bodily injuries – sentence of seven (7) years.

CRIMINAL LAW – Sentence – arson – a semi-permanent building – with use of kerosene in retaliation of brother being assaulted by victim – not a first time offender – expressed remorse – 7 years part suspended sentence imposed – ss. 19 and 436 of Criminal Code Act.

CRIMINAL LAW – Sentence – need for appropriate sentencing guidelines for arson cases to be developed

Cases Cited

State v Ipu Samuel Yombu [1992] PNGLR 261

State v Pelly Vireru & Spelly Karwa CR No. 468 & 469 of 2002 (20/12/05)

State v Pradie Akoi & Steven Akoi CR No. 1431 of 2002 (N2584)

State v Andrew Yeskulu N2410 (24/04/03)

State v Patrick Michael & Leo Koligen CR No. 281 & 283 of 2004 (10/10/05)

State v Alfred Awesa CR 1587 of 2005 (06/04/05)

State v Rex Tami CR No. 1590 of 2005 (23/03/06)

State v Bonifas Bowa CR No. 1930 of 2005 (23/03/06)

State v Bernard Bambai CR No. 1931 of 2005 (23/03/06)

State v David Kondave CR No. 1450 of 2006

State v Kuru Bisok & Gahu Kuru CR Nos. 42 & 43 of 2007

State v Anton Towaksa & 2 Ors CR No. 354-356 of 2008

Counsel

Mr. F. Popeu, for the State

Mrs. A. Meten, for the Offender

DECISION ON SENTENCE

17 June, 2011

1. IPANG AJ: The offender Kieth Kwelik pleaded guilty to the charge of arson, an offence prescribed under Section 436(a) of the Criminal Code Act, Chapter 262. The indictment alleged that on the 21 December 2008 at Duningi, Nelikum No.1 village in Maprik District, East Sepik Province, he willfully and unlawfully set fire to a semi-permanent building serving as a dwelling house and a bush-material building serving as a kitchen both valued at K7,981.00. These are properties belonging to one Max Wukwemini.

Brief facts

2. The brief facts of this case are as follows: On the 21 December, 2008 at around 1.00pm, the accused’s brother namely George Kwaminingi was involved in a fight with another person namely Rex Pasikila and sustained some bodily injuries. The offender saw his injured brother and went to look for the person who assaulted his brother.

3. The offender went to the premises of Max Wukwemini and called out for Rex Pasikila and Max Wukwemini to go out for a fight. Both Rex Pasikila and Max Wukwemini did not go out and seeing that no one responded, the offender got hold of a container of kerosene, poured it on to the building and set it on fire. The building was completely burnt to ashes.

Allocutus

4. In administering his allocutus, the offender expressed remorse for what he did. He said sorry. He said he is a first-time offender and asked for the court’s mercy. He also said he will compensate the complainant at home.

5. On the 9 June, 2011, Mrs. Meten of Counsel for the offender requested for a Pre-sentence Report (PSR) for her client upon which an order from this Court was granted. The Pre Sentence Report compiled by Probation officer James Suart stated the following in regard to the offender:

“The offender is 37 years old and he is married with three (3) children. He is currently unemployed but supports his young family through casual laboring and gardening. The PSR states that the offender does various menial jobs around Maprik Town and as a casual electrician with Paul Dingu. The report states he earns not more than K100 per fortnight.

The offender is literate. He did grades 1-6 at Maprik Administration Primary School from 1982-1987. After grade 10, the offender did not continue his education as his sister passed away. The offender is the second born of five (5) children, one female and four males. Offender’s father Tobias Kwelik is 65 years old and the mother Docas Kwelik is 62 years old. Both are from Duningi Nelikum No.1 village, Maprik/Wora LLG. The offender’s father works as a Manager for the Community Learning Development Centre. The offender’s mother is a retrenched Nursing Officer with the National Department of Health.

The PSR revealed that the offence was committed as a result of continuous bad disputes between the complainant’s family and the offender’s family. It is stated that the land dispute has been on going for the last 20 years and it has not been resolved. So, the grievous bodily harm caused to George Kwaminingi only added more fuel to the unsolved land dispute.”

6. I will re-visit the PSR at the later part of the judgment when I do a comparison of the aggravating and the mitigating factors.

The Law

7. The offender has been charged under section 436(a) of the Criminal Code Act, chapter 262. This provision provides and I quote;

“A person who willfully and unlawfully sets fire to –

(a) A building or structure, whether completed or not;

is guilty of a crime.

Penalty: Subject to section 19, imprisonment for life.”

Issue

8. What would then be an appropriate sentence for the offender?

Comparing Mitigating and Aggravating Factors

9. Mrs. Meten of Counsel for the offender submitted the following mitigating factors in favour of the offender;

(a) He is a first time offender;

(b) He acted alone;

(c) The offence committed was not planned;

(d) He has pleaded guilty, saved Courts’ time and State expense of conducting trial;

(e) He has expressed remorse;

(f) He has made early admission when first arrested and detained;

(g) He has co-operated with the police;

(h) He does not have any prior convictions; and

(i) There was element of de-facto provocation in that the victim and his relatives had fought and gave injury to the offender’s brother.

10. Mrs. Meten submitted that the maximum penalty under section 436 of the Criminal Code Act is imprisonment for life however; she said this Court has discretion under section 19 of the Criminal Code Act. She further stated that the maximum penalty is normally reserved for the worst types of cases. She said that this case is not the worst type of arson case. Therefore, she submitted that this court consider imposing a term of years.

11. Defence counsel referred this court to the cases of State v Prodie Akoi & Steven Akoi N2584 (CR No. 1431 of 2002). In that case His Honour Kandakasi, J imposed a head sentence of 10 years and partially suspended 5 years. The case of State v Karu Bisok & Gahu Kuru CR Nos 42 & 43 of 2007, where Cannings, J imposed six (6) years and four (4) years respectively. Again in State v David Kondave CR No. 1450 of 2006, Cannings, J imposed 10 years as head sentence and partially imposed six (6) years.

12. In State v Prodie Akoi & Steven Akoi case (supra) Kandakasi, J referred to the case of State v Ipu Samuel Yombu [1992] PNGLR 261 which was also cited to this Court by the state prosecutor. The case of Ipu Samuel Yombu (supra) do differ to certain extent to the present case in that in the Ipu Samuel Yomb’s case, there were people in the house and there was deliberate locking of the door and setting the house alight. Whereas in the present case, there were no people inside the house when it was set on fire. I do agree with state prosecutor in this regard that there was no deliberate, recklessness in putting lives of people at risk.

13. In Ipu Samuel Yomb’s case (supra) as stated by Kandakasi, J in Akoi’s case (supra) there were some guidelines on different kind of categories a arson case may fall under;

CATEGORY TYPES OF HOUSES

1 A dwelling house with people inside;

2 A dwelling house without occupants;

3 Public Institutions such as schools, hospitals or offices with...