The State v Henny Wamahau Ilomo (2003) N2420

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 01 May 2003
• Citation: [2003] PNGLR 41
• Court: National Court
• Year: 2003
• Judgement Number: N2420

Full Title: The State v Henny Wamahau Ilomo (2003) N2420

National Court: Kandakasi J

Judgment Delivered: 1 May 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 546 of 2003

THE STATE

-V-

HENNY WAMAHAU ILOMO

WEWAK: KANDAKASI, J.

2003: 24th April

1st May

CRIMINAL LAW – PRACTICE & PROCEDURE – Guilty to plea to charge of arson – Pre-sentence report recommending rebuilding of the houses destroyed and replacing contents lost – Sentence deferred to enable prisoner to commence taking the steps necessary toward rebuilding the buildings and contents destroyed in the fire – Subsequent report confirm steps taken to rebuild buildings and replace contents – Probation service and members of the Community willing to assist in supervision of rebuilding work and other terms and conditions of a sentence outside the prison system - Prisoner given suspended sentence on terms to rebuilding the buildings he destroyed and replace their contents and community work order for balance of suspended sentence - ss. 2, 3, 4, and 5 of Criminal Law (Compensation) Act – ss. 19 and 436 of the Criminal Code.

CRIMINAL LAW - SENTENCE – PRACTICE & PROCEDURE – Arson – guidelines recently suggested – Inappropriate to adopt and apply them as they have not yet been sufficiently published - s. 436 of the Criminal Code.

CRIMINAL LAW – Compensation – Compensation only relevant for mitigation purposes and does not excuse criminal liability or penalty – No compensation order can be made unless a means assessment report is requested and it confirms prisoner having means to replace property lost or destroyed by the criminal conduct in question - Compensation ordered in terms of rebuilding and replacing contents lost as a consequence of the offence ordered – Sentence to be suspended on condition that the orders for rebuilding and replacement orders being met – ss.2, 3, 4 and 5 Criminal Law (Compensation) Act.

CRIMINAL LAW - Sentence – Arson – Burning down of bush material dwelling house, kitchen and firewood shed - Offence committed in retaliation for suspected sorcery death caused to sister – No evidence to establish basis for suspecting sorcery - Guilty plea – Prisoner taking and prepared to take further steps to rebuild the buildings lost and replace contents lost in the fire – Means assessment and pre-sentence report support prisoner’s position and recommend non custodial sentence – First time offender – Expression of genuine remorse – 7 years suspended sentence on terms – ss.19 and 436 of the Criminal Code.

Cases Cited:

Public Prosecutor v. Don Hale (1998) SC 564.

The State v. Micky John Lausi (27/03/01) N2073.

The State v. Abel Airi (28/11/00) N2007.

The State v. Dobi Ao (No.2) (01/05/02) N2247.

The State v Otom Masa (20/12/00) N2021.

The State v. Andrew Yeskulu CR 1431 of 2002

The State v. Ipu Samuel Yomb [1992] PNGLR 261

Roger Jumbo and Aidan Awatan v. The State (26/03/97) SC516

Counsels:

Mr. M. Ruari for the State

Mr. G. Korei for the Prisoner

1st May 2003

KANDAKASI J: You pleaded guilty to one charge of arson in that you burnt down a dwelling house and a kitchen and firewood shed on the 29th of July 2002, at Ambukanja, in the Yangoru District of this Province.

Following on from the first is the second reason.

Upon reading the depositions, which were admitted into evidence without any objection from you, I accepted your guilty plea and convicted you of the charge. I did that because, I found that there was sufficient evidence to support the charge and your guilty plea. Thereafter, I asked you to address me on sentence. In response to that, you expressed remorse for what you had done and asked for a suspended sentence or be placed on probation. You then informed me that you would be prepared to rebuild the buildings you had burnt down and replace their contents. You also informed the Court that you have 4 gardens of vanilla plants, 2 gardens of coffee and 6 gardens of cocoa.

The State did not oppose a suspended sentence to enable you to rebuild the building providing all the building material required and replace the items that were in the buildings at the time of the offence and lost with the buildings.

Given these, I considered it appropriate that I should call for a means assessment report as to what means you have to do all that you said you are prepared to do based on the assets or properties you claim to have. I also considered it necessary to call for a pre-sentence report to determine whether it is appropriate to impose upon you the kind of sentence you asked for. Accordingly, I asked for these two reports from the probation services in accordance with authorities such as Public Prosecutor v. Don Hale (1998) SC 564. This is particularly necessary to consider the appropriateness of a punishment outside the prison system.

I have in fact imposed a good number of suspended sentences on terms based on the recommendations of pre-sentence reports: See for example The State v. Micky John Lausi (27/03/01) N2073. In so doing, I noted and I maintain the view that imposing a suspended sentence is not an exercise in leniency. But it is a form of punishment that has the ability to achieve rehabilitation, which is one of the aims of criminal sentencing. It also has the potential in appropriate cases, to serve, as a personal and general deterrence against other would be offenders. Persuaded by these considerations, I imposed wholly suspended sentences in The State v. Micky John Lausi (supra), The State v. Abel Airi (28/11/00) N2007 and The State v. Dobi Ao (N0.2) (01/05/02) N2247. I have done this only on the basis of well balance pre-sentence reports, representing and reflecting the views of the community on the kind of penalty that the respective offenders should receive.

In your case, I have before me the reports I have requested from the Probation Service. I sincerely express my gratitude to the Probation Service Officer here, Mr. Moses Galus, who has been able to furnish the report within the short time period he has been given.

The means assessment report confirms that you have in fact taken steps toward a reconstruction of the buildings you had burnt down. It also confirms that you have some cash crop, which you could sell and get some money. Then from the proceeds of any such sale, it is possible that you will purchase and replace the other properties or the contents of the buildings that the victims of your offence have lost. The report concludes with a recommendation that you be given a suspended sentence and be order to rebuild the buildings you burnt down within 3 to 6 months.

It is settled law that the Court is not bound to accept and or follow the recommendations of a pre-sentence report. An example of an authority on this is The State v Otom Masa (20/12/00) N2021. This case also sets out some of the circumstances in which a Court can reject the recommendations of a pre-sentence report.

A decision whether or not the recommendations of a pre-sentence should be accepted is dependent on a number of factor, which play an important part in the whole criminal sentencing system. One such important factor is the particular facts and the circumstances in which the offence under consideration was committed. The nature and or the type of offence involved as well as the community’s response to the offence are also important considerations. The offender’s own personal background, his response to the consequence of the offence and his preparedness to rehabilitate is another relevant factor. A sentencing Court is duty bound to strike a balance between rehabilitating an offender and penalizing him for having committed the offence. I will consider each of these factors in the order in which they appear.

I start that process with a look at the particular facts and the circumstances in which you committed the offence. The relevant facts emerge from the District Court committal deposition, which was admitted into evidence with your consent. They are straightforward. They disclose that, between 8:00 pm and 10:00 pm on 29th December 2002, you went to a Anton Pandui Huanjowara’s house and went to his family’s dwelling house and banged on the door. At that time, Mr. Huanjowara’s wife, Maria and their 4 children were asleep in the house. Upon hearing you, Maria woke up and heard you say “my sister has died and in retaliation you (Maria and her children) will be burnt down”. By that time, you had already set fire to one of their houses already which was already up in flames. Maria and her children managed to get out of the house. Soon...