The State v Kuru Bisok & Gahu Kuru (2007) N5483

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 11 October 2007
• Court: National Court
• Citation: (2007) N5483
• Docket Number: CR NOS 42 & 43 OF 2007
• Year: 2007
• Judgement Number: N5483

Full Title: CR NOS 42 & 43 OF 2007; The State v Kuru Bisok & Gahu Kuru (2007) N5483

National Court: Cannings J

Judgment Delivered: 11 October 2007

N5483

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 42 & 43 OF 2007

THE STATE

V

KURU BISOK & GAHU KURU

Madang: Cannings J

2007: 8, 11 October

CRIMINAL LAW – sentence – arson – Criminal Code, Section 436 – offenders acted with others – set fire to and destroyed bush material house and contents – motivated by belief that homeowner built his house unlawfully on their land – guilty plea – sentences of six years and four years.

The offenders, a father and son, pleaded guilty to joining with others in burning down the bush material house of a person whom they believed had built his house on their land.

Held:

(1) The starting point for sentencing for arson regarding a dwelling house is ten years imprisonment.

(2) The father had a greater level of involvement in the arson as he was the ringleader and took the law into his own hands. He was sentenced to six years imprisonment. The son had a lesser degree of involvement and was sentenced to four years imprisonment.

(3) The pre-sentence periods in custody were deducted and all of the remaining period of each sentence was suspended on conditions including payment of compensation to the victim within four months.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

The State v Alfred Awesa CR 1587/2005, 06.04.06

The State v Bernard Bambai CR 1931/2005, 23.03.06

The State v Bonifas Bowa CR 1930/2005, 23.03.06

The State v Jacob Patore CR 32/2005, 27.03.07

The State v Mondo Baundo CR 1320/2006, 24.08.07

The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07

The State v Patrick Michael & Leo Koligen CR 281 & 283/2004, 10.10.05

The State v Pelly Vireru & Spelly Kaiwa CR 468 & 469/2002, 20.12.05

The State v Rex Hekawi Tami CR 1590/2005, 23.03.06

Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for arson.

Counsel

M Ruari, for the State

W Akuani, for the offenders

11th October, 2007

1. CANNINGS J: This is a decision on sentence for a father (Kuru Bisok) and his son (Gahu Kuru) who pleaded guilty to one count of arson, arising from the following facts. They joined with others in burning down the bush material house of the victim, Kumei Namur, at Siholum, near Bilbil village, close to Madang town. The house was set alight at 10.00 am on 5 September 2006.

ANTECEDENTS

2. Neither of the offenders has any prior convictions.

ALLOCUTUS

3. 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.

Kuru: The house that we burned down is on my land. We tried to have the matter sorted out in the Village Court, which ordered Kumei not to build his house there but he disobeyed the order. The land is not in the main village at Bilbil. It is in the bush. It is my land.

Gahu: I know I did wrong. It is my first time in court. I say sorry for what I have done.

OTHER MATTERS OF FACT

4. As the offenders have pleaded guilty they will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). They made admissions in their police interviews. The father, Kuru, admitted to being the ringleader. He was motivated by the strong belief that the victim, Kumei Namur, was a problem person in their community who does not show respect for other people and who needed to be taught a lesson. No one was in the house and they removed all the belongings before burning it down.

PERSONAL PARTICULARS

5. Kuru is 56 years old and self-employed. His son Gahu is aged 24 and was educated at St Benedict's Technical School.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Akuani pointed out that lives were not endangered and that they removed the contents of the house before setting fire to the house. He argued for a two year sentence.

SUBMISSIONS BY THE STATE

7. Mr Ruari argued for a 10-year sentence, with some time in custody.

DECISION MAKING PROCESS

8. 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 other sentences have been imposed for equivalent offences?

· step 4: what is the head sentence for each offender?

· step 5: should the pre-sentence periods in custody be deducted?

· step 6: should all or part of each sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The offenders have been convicted of arson under Section 436(a) of the Criminal Code. The maximum penalty is life imprisonment. The Court has discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. As I have said in recent arson cases, the starting point for sentencing for the serious offence of burning down a dwelling house is ten years imprisonment (The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07; The State v Jacob Patore CR 32/2005, 27.03.07).

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED?

11. I have recently imposed ten-year sentences in the two arson cases referred to above, both of which went to trial. On guilty pleas, the sentences have been lower, as shown in the following table.

TABLE 1: NATIONAL COURT SENTENCES FOR ARSON, 2005-2007

No	Case	Details	Sentence
1	The State v Patrick Michael & Leo Koligen CR 281 & 283/2004, 10.10.05, Kimbe	Guilty plea – victim of arson was alleged to have sexually penetrated the daughter of one of the offenders – offenders were demanding compensation from victim – went with a mob – offenders ordered others to burn down the victim’s bush material house.	3 years, 3 years
2	The State v Pelly Vireru & Spelly Kaiwa CR 468 & 469/2002, 20.12.05, Kimbe	Guilty plea – dispute between one of the offenders and brother of a young female – brother damages windscreen on a bus belonging to one of the offenders – offender comes back with co-accused and a fight ensued and a dwelling house valued at over K30,000.00 was burnt down.	5 years, 5 years
3	The State v Bernard Bambai CR 1931/2005, 23.03.06, Kimbe	Guilty plea – a husband-wife argument (between the offender and his wife) – offender, drunk, deliberately set a pile of clothes on fire in the living room, causing the house to burn down – government property, valued at K36,000.00.	3 years
4	The State v Rex Hekawi Tami CR 1590/2005, 23.03.06, Kimbe	Guilty plea – prisoner suspected victims of stealing his money – pours kerosene and burned a dwelling house whilst under the influence of alcohol – victim and family were asleep in the house at the time.	6 years
5	The State v Bonifas Bowa CR 1930/2005, 23.03.06, Kimbe	Guilty plea – alleged infidelity of wife and victim – prisoner went with an angry mob – dwelling house was burnt down and properties looted – also convicted of stealing.	5 years
6	The State v Alfred Awesa CR 1587/2005, 06.04.06, Kimbe	Guilty plea – victim had smashed a beer bottle over offender’s head – offender went to victim’s house armed with bush-knife – chased everyone away and burned down the house.	5 years
7	The State v Oscar Rebon, Alken Rebon and Nautim Benal CR 29-31/2005, 09.03.07, Kimbe	Trial – offenders were in a mob that attacked the victim’s house late in the afternoon – terrorised the victim and his family – burned down the house and assaulted the victim.	10 years
8	The State v Jacob Patore CR 32/2005, 27.03.07, Kimbe	Trial – offender burned down two bush material houses and associated structures on land that he owned – apparent motive was to remove occupants of the houses as they were members of an ethnic group involved in dispute with another ethnic group living on the land – offences committed late at night – owners of houses inside, asleep.	10 years
9	The State v Mondo Baundo CR 1320/2006, 24.08.07, Kimbe	Guilty plea – offender became angered by a report that his pig had been speared, confronted the people allegedly responsible and, still angry, burned down their bush-material house.	6 years

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENDER?

12. The father, Kuru, was the ringleader. He had a greater level of involvement in the crime than his son, Gahu. Therefore it is appropriate to impose different sentences.

Kuru Bisok

13. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of...