State v Rex Sengi

• Jurisdiction: Papua New Guinea
• Judge: Polume-Kiele J
• Judgment Date: 27 August 2015
• Citation: (2015) N6087
• Court: National Court
• Year: 2015
• Judgement Number: N6087

Full : CR NO. 307 OF 2015; State v Rex Sengi (2015) N6087

National Court: Polume-Kiele J

Judgment Delivered: 27 August 2015

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.

Committal Court Disposition

3. 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.

4. 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.

Antecedent Report

5. 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

6. 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

7. 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.

8. 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

9. 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...