The State v Bart Kiohin Mais And Henry Kevi (2005) N2811

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 March 2005
• Court: National Court
• Citation: (2005) N2811
• Docket Number: CR No 172 of 2005
• Year: 2005
• Judgement Number: N2811

Full Title: CR No 172 of 2005; The State v Bart Kiohin Mais And Henry Kevi (2005) N2811

National Court: Cannings J

Judgment Delivered: 23 March 2005

N2811

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 172 0F 2005

THE STATE

V

BART KIOHIN MAIS AND HENRY KEVI

BUKA : CANNINGS J

18, 23 MARCH 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Subdivision VI.2.B, offences – Section 436, arson – sentence on plea of guilty – offenders burned down a dwelling house, acting on the belief that the owner of the house had killed a brother of one of the offenders in a fight – steps taken to ensure that no one was in the house – acting in group of others – no physical injury to any persons – isolated incident – offenders did not surrender – cooperated with police – no trouble caused with victim since the incident – tangible steps taken towards repairing the wrong – determination of maximum penalty – expression of remorse – first offenders – youthful offender – limited educational background – starting point for head sentence –identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – evidence received from welfare officer – sentence of two years – all of which shall be suspended on satisfaction of prescribed conditions.

Cases cited

The State v Andrew Yeskulu (2003) N2410

The State v Enni Matthew and Others (No 2) (2003) N2563

The State v Henny Wamahau Ilomo (2003) N2420

The State v Ipu Samuel Yomb [1992] PNGLR 261

The State v Prodie Akoi (2004) N2584.

The State v Robin Warren and Others (No 2) (2003) N2418

L Rangan for the State

L Siminji for the co-accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for two men (the co-accused) who pleaded guilty to a charge of arson.

BACKGROUND

Incident

The incident giving rise to the charge took place at Malasang No 3, Buka Island, Bougainville, on 1 January 2001.

Indictment

On 18 March 2005 the co-accused were brought before the National Court and faced the following indictment:

Bart Kiohin Mais and Henry Kevi, both of Malasang No 3, Buka Island, Papua New Guinea, stand charged that they … on the 1st day of January 2001 at Malasang … wilfully and unlawfully set fire to a building.

The indictment was presented under Section 436(a) of the Criminal Code.

FACTS

Allegations

The following allegations were put to the co-accused for the purpose of obtaining a plea.

On 1 January 2001 the co-accused were at their village at Malasang No 3. They heard that a man called Charles Matis had stabbed the brother of the second co-accused, Henry Kevi, with a knife, at the brother’s residence. In retaliation, the co-accused, with several other persons, went to Charles Matis’s house, where he lived with his family. The first co-accused was carrying a plastic container of petrol. When the group arrived at the residence, he poured the petrol around the house. Another member of the group then set fire to the petrol and the house was set on fire, completely destroying it. Both the co-accused were involved in the burning down of the house. They acted intentionally and there was no excuse in law for what they did.

Conviction

The co-accused each pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted them. They are now referred to as the offenders.

ANTECEDENTS

Neither offender has any prior conviction.

ALLOCUTUS

I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of each response follows.

Bart Kiohin Mais

We did this because Charles Matis cut my uncle. We thought he was already dead. After it happened the chiefs made an agreement to have this thing sorted out in the village. We rebuilt the house, as we agreed to do with the chiefs. I am very sorry for what happened. This is my first time to be in court.

Henry Kevi

We came to burn down the house as we heard that Charles had cut my brother. We thought he was already dead. Therefore, we burned down Charles’ house. After it happened the chiefs made an agreement to have this thing sorted out in the village. We had to rebuild the house. Charles was happy when he heard that we were going to rebuild his house. After we rebuilt it, we have never had any more problems with Charles. This is my first time to be in trouble with the law. I am sorry for what I did.

PRE-SENTENCE REPORT

A pre-sentence report was prepared by the provincial welfare officer, Ms Cicely Kekun. She visited the village and interviewed the co-accused. She also interviewed the person, Charles Matis Tapi, whose house was burned down, and the chief of Malasang No 3, Leo Kirama. She also gave sworn evidence on her inquiries. Her findings and recommendations are:

· The first co-accused, Bart Kiohin Mais, is 23 years old, married with one child, educated to grade 10. The second co-accused, Henry Kevi, is 36 years old, married, educated to grade 6.

· The co-accused built a new house for Charles, which was much better than the house that they burned down.

· Another problem had arisen since they built the new house. Charles had an argument with his brothers – not the co-accused – and destroyed the new house.

· Charles would like the co-accused to rebuild the house, again, but he will accept what the court decides.

· The co-accused and Charles are now living harmoniously in the village. Charles has no hard feelings towards them.

· The matter is being settled in the customary way in the village. A reconciliation feast is still to be held, at which there will be an exchange of goods and money. This has been put on hold while the court proceedings are continuing.

· The co-accused should be placed on probation.

CLARIFICATION OF FACTUAL ISSUES

During the course of the proceedings I asked counsel if there was agreement about some issues of fact which were not brought out clearly in the summary of facts, to which the offenders pleaded guilty, and which would have an effect on the sentence to be imposed. These related to whether there was anybody in the house when it was burned down and whether the co-accused took any steps to find that out.

Counsel agreed, and I accept, that:

· there was nobody in the house when it was burned down by the co-accused; and

· the co-accused knew that there was nobody in the house, as they had taken steps immediately beforehand to confirm that nobody was inside.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Siminji referred to a number of mitigating factors. The offenders have pleaded guilty, saving the trouble and expense of a trial. They admitted to the police at the outset what they had done. They have made genuine attempts to repair the damage that they caused. They have reconciled with the victim. There were elements of de facto provocation for what they did. A non-custodial sentence is appropriate.

SUBMISSIONS BY THE STATE

Mr Rangan submitted that the burning down of a dwelling house was a very serious offence. He suggested that the court apply the sentencing criteria in The State v Ipu Samuel Yomb [1992] PNGLR 261, National Court, Doherty J.

RELEVANT LAW

Section 436

Section 436 (arson) of the Criminal Code states:

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.

Therefore the offenders are liable to life imprisonment.

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

· a shorter term of imprisonment may be imposed (Section 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 offender can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or

· the offender may be given a ‘good behaviour bond’ (Section 19(1)(d)); or

· the offender can be discharged and the sentence postponed (Section 19(1)(f)); or

· the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the appropriate head sentence, in terms of years?

· step 2: should all or part of the sentence be suspended?

· step 3: if all or part of the sentence is suspended, what conditions should be imposed?

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

Approach

In setting an appropriate head sentence I will take this approach:

· first, I will identify an appropriate starting point or reference point;

· secondly, I will set out the considerations that should be taken into account in deciding what sentence to impose; and

· thirdly, I will apply those considerations to the facts of the present case.

Starting point

Judges often refer to a starting...