The State v Bernard Bambai (2006) N3019

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 March 2006
• Citation: (2006) N3019
• Docket Number: CR No 1931 of 2005
• Court: National Court
• Year: 2006
• Judgement Number: N3019

Full Title: CR No 1931 of 2005; The State v Bernard Bambai (2006) N3019

National Court: Cannings J

Judgment Delivered: 23 March 2006

N3019

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1931 0F 2005

THE STATE

V

BERNARD BAMBAI

KIMBE : CANNINGS J

13 FEBRUARY, 23 MARCH 2006

SENTENCE

Criminal law – indictable offence – Criminal Code, Subdivision VI.2B (offences relating to property and contracts) – injuries to property – offences – Section 436 (arson) – sentence on plea of guilty.

A man pleaded guilty to one count of arson. He had an argument with his wife and set fire to the family home, rented premises belonging to his employer, the provincial government.

Held:

(1) In the absence of Supreme Court sentencing guidelines the starting point for sentencing for arson regarding a dwelling house is 10 years imprisonment.

(2) Strong mitigating factors identified were that: he acted alone; the offence was not planned; he pleaded guilty; he expressed remorse.

(3) A strong aggravating factor was that he put lives at risk and destroyed a valuable government asset.

(4) The head sentence is three years imprisonment.

(5) Execution of the sentence is delayed for three months to allow restitution to take place.

(6) If restitution is not effected within that period the offender will be required to show cause why he should not be immediately committed to custody to serve his sentence.

Cases cited

The following cases are cited in the judgment:

The State v Bart Kiohin and Henry Kevi (2005) N2811

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

The State v Henny Wamahau Ilomo (2003) N2420

The State v Leo Koligen and Patrick Michael, CR Nos 281 and 283 of 2004, 08.09.05, unreported

The State v Pelly Vireru and Others, CR Nos 468-473 of 2002, 08.09.05, unreported

The State v Prodie Akoi (2004) N2584

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

Abbreviations

The following abbreviations appear in the judgment:

J – Justice

N – National Court judgments

OK – okay; all right

PSR – pre-sentence report

WNB – West New Britain

PLEA

The accused pleaded guilty to arson and the following reasons for sentence were given.

Counsel

F Popeu for the State

O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to the offence of arson.

BACKGROUND

Incident

The incident giving rise to the charge took place at Kimbe in July 2004.

Indictment

On 13 February 2006 the accused was brought before the National Court and faced the following indictment:

Bernard Bambai of Penatabotong, Bali, Talasea, West New Britain Province is charged that he on the 1st day of July 2004 at Kimbe … wilfully and unlawfully set fire to a permanent building serving as a dwelling house valued at K36,162.79 and situated at Section 12, Allotment 7, Kimbe, the property of the West New Britain Provincial Government.

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

FACTS

Allegations

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

At 3.00 pm on 1 July 2004 the accused had an argument with his wife at their home in Kimbe. At 10.00 pm he returned under the influence of liquor. He gathered his wife’s clothes, threw them on the floor, poured kerosene over them, then set fire to them with a lighted match. The fire spread and burned down their house, valued at approximately K36,000.00. The house was owned by the WNB Provincial Government. He acted intentionally and his actions are not excused by law.

Conviction

The accused 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 him. He is now referred to as the offender.

ANTECEDENTS

The offender has no prior convictions.

ALLOCUTUS

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

I apologise to the court and to the government and the people of this province for what I have done. It is my first time to be in trouble with the law. I am married with three children, aged 12, 7 and 2 years old respectively. My wife is not formally employed. My mother is deceased and my father is very old and living in the village. I am number seven in a family of nine. I am the only one employed. Since the house was burned down I have continued to pay rent and I am happy to pay compensation. My wife and I have sorted out our problems. Our relationship has become stronger and we regularly attend church activities. I ask for the court’s mercy and leniency.

OTHER MATTERS OF FACT

I have considered the matters of fact raised in the depositions and in the allocutus to check whether there is anything favourable to the offender that has not been raised that may be relevant to the sentence.
I have done this because he pleaded guilty. I note the following:

· On 6 July 2004, five days after the incident, he apologised in writing to the Provincial Administrator of WNB Province.

· On 18 October 2005 he was arrested and charged. He has co-operated with the police.

RELEVANT LAW

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.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Oiveka highlighted the following mitigating factors: he pleaded guilty; he expressed remorse; he is not a hard-core criminal; there was not a high degree of intention; it was a stupid thing to do and he has already suffered a lot as he lost all his family’s belongings in the fire.

SUBMISSIONS BY THE STATE

Mr Popeu did not press for a heavy sentence. He submitted that the offender should be dealt with in a similar way that I sentenced the offenders in a recent Kimbe case, The State v Pelly Vireru and Others, CR Nos 468-473 of 2002, 08.09.05, unreported. In that case the offenders were convicted of arson and malicious damage to property. They had destroyed a house worth K30,000.00 in Gavuvu village in the Hoskins District. I sentenced them to prison terms of two to five years depending on their level of involvement but suspended execution of the sentences for three months to allow for restitution. Likewise in The State v Leo Koligen and Patrick Michael, CR Nos 281 and 283 of 2004, 08.09.05, unreported, I sentenced two arsonists to three years imprisonment for burning down two bush material houses at Kavui. I suspended execution of the sentences for three months to allow for restitution. The sequel to Vireru is that restitution was not effected and all the offenders are now in prison. In Koligen and Michael, restitution was effected and both offenders are serving suspending sentences and subject to community work orders.

PRE-SENTENCE REPORT

To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the report follows.

Residence: lives temporarily with mother-in-law near Kimbe, who is prepared to contribute to any order for compensation imposed by the court.

Family: from Bali Island, WNB – has no problems with them.

Marital status: married for 13 years – three children – had a marital problem developed in 2004 when the offender was in Port Moresby for nine months doing a course at the Institute of Public Administration – his wife, Edna, allegedly had an affair – Edna was interviewed and confirmed that the marriage is again stable – does not want her husband sent to gaol.

Education: grade 10 at Kimbe Secondary School (1985) – grade 12 at Kerevat National High School (1987) – Business Diploma, Unitech (1989).

Work: has been employed by WNB Provincial Government as a business development officer since 1991.

Financial status: fortnightly salary from WNB Provincial Government.

Plans: wants to make restitution – can afford to pay K300.00 per fortnight until the sum of K36,162.79 is paid off.

Community history: highly regarded by – Pastor Paul Ronnie of the Kumbango AOG Church; Bernard Penga, Adviser, Commerce and Industry Division, WNB Provincial Government; Willie Waluka, Adviser, Finance Administration, WNB Provincial Government.

Health: OK – the offender says that he did not drink alcohol from 1996 to the date of the incident in 2004 when he got angry with his wife.

Recommended for non-custodial sentence.

DECISION MAKING PROCESS

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

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what are the considerations that should be taken into account in determining the head sentence, in terms of years?

· step 4: what is the head sentence?

· step 5: should all or part of the sentence be suspended?

· step 6: if all or part of the sentence is suspended, what conditions should be imposed?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

The offender has...