The State v Scott Lalio (2006) N2967

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 January 2006
• Citation: (2006) N2967
• Docket Number: CR No 1606 of 2005
• Court: National Court
• Year: 2006
• Judgement Number: N2967

Full Title: CR No 1606 of 2005; The State v Scott Lalio (2006) N2967

National Court: Cannings J

Judgment Delivered: 27 January 2006

N2967

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1606 0F 2005

THE STATE

V

SCOTT LALIO

MADANG : CANNINGS J

14 DECEMBER 2005, 18, 27 JANUARY 2006

SENTENCE

Criminal law – indictable offence – Criminal Code, Subdivision VI.2B, offences relating to property and contracts, injuries to property, offences – Section 437, attempts to commit arson – sentence on plea of guilty.

A young man pleaded guilty to one count of attempted arson. He attempted to set fire to the Madang Policewomen’s Barracks. He acted alone. No major damage was done. He was drunk at the time. The maximum penalty for this sort of offence is 14 years.

Held:

(1) In the absence of Supreme Court sentencing guidelines the starting point for sentencing for attempted arson is in the middle of the available range: seven years.

(2) Strong mitigating factors identified were that: the offender did very little damage; the occupants were not directly affected; 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.

(4) The head sentence is three years imprisonment.

(5) A pre-sentence report from the Madang office of the Community Correction and Rehabilitation Service recommended a non-custodial sentence. But it is not appropriate in the circumstances of this case to consider immediate suspension of the entire sentence.

(6) The court, however, qualified the prison sentence by ordering that it can be suspended after the prisoner has served a minimum term of imprisonment of one year if the National Court approves a post-release parole period with strict conditions attached.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789

The State v Andrew Yeskulu (2003) N2410

The State v Bart Kiohin Mais 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 Prodie Akoi (2004) N2584

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

Abbreviations

The following abbreviations appear in the judgment:

BES – break, enter and steal

CJ – Chief Justice

CODE – College of Distance Education

DCJ – Deputy Chief Justice

eg – for example

J – Justice

LLG – Local-level Government

N – National Court judgments

OK – okay; all right

PSR – pre-sentence report

SC – Supreme Court judgments

WNB – West New Britain

PLEA

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

Counsel

M Ruari for the State

L Vava for the accused

CANNINGS J:

INTRODUCTION

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

BACKGROUND

Incident

The incident giving rise to the charge took place at Madang town in 2005.

Indictment

On 14 December 2005 the accused was brought before the National Court and faced the following indictment:

Scott Lalio of Apugi, Kandrian, West New Britain Province is charged that he on the 8th day of March 2005 at Madang … attempted to unlawfully set fire to the Madang Policewomen’s Barracks.

The indictment was presented under Section 437(a) (attempts to commit arson) of the Criminal Code.

FACTS

Allegations

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

At 4.30 am on 8 March 2005 the accused entered the premises of the Policewomen’s Barracks in Newtown, Madang town, by removing timber from the fence surrounding the Barracks. He then ripped off the flywire around the dining area and set fire to a curtain. That caused a cushioned chair to catch fire. Some policewomen woke up, put out the fire, saw the accused and gave chase. He escaped before being apprehended early the next day.

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 prisoner.

ANTECEDENTS

Mr Ruari for the State notified the court that the prisoner has no prior convictions, in the sense that when he committed the current offence he had not been previously convicted. However, he has three subsequent convictions. In June 2005 he was convicted and sentenced in the District Court as follows:

· possession of an offensive weapon – three months imprisonment;

· possession of live ammunition – nine months imprisonment;

· possession of dangerous drugs – six months imprisonment.

These sentences, totalling 18 months imprisonment, are all cumulative. He is currently serving them at Beon Gaol.

ALLOCUTUS

I administered the allocutus, ie the prisoner 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:

When I committed this offence I was under the influence of alcohol. There is no other reason that I did this thing. I have broken the laws of the country and I am sorry for that. I say sorry to the court and to everybody inside the courtroom. I ask please for a non-custodial sentence.

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 that has not been raised that may be relevant to the sentence. However, there is nothing.

RELEVANT LAW

Section 437 (attempts to commit arson) of the Criminal Code states:

A person who—

(a) attempts unlawfully to set fire to any thing referred to in Section 436; or

(b) wilfully and unlawfully sets fire to any thing that is so situated that any thing referred to in Section 436 is likely to catch fire from it,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

SUBMISSIONS BY DEFENCE COUNSEL

Mr Vava highlighted the following mitigating factors: he pleaded guilty; he expressed remorse; minimal damage done to the building; repair costs minimal; first offender; did not really put lives at risk; not a planned attack.

SUBMISSIONS BY THE STATE

Mr Ruari did not press for a heavy sentence. He pointed out that the main aggravating factor was that it was an unprovoked attack.

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 Madang office of the Community Correction and Rehabilitation Service. A summary of the report follows.

1 Residence – lives at Sisiak No 3, Madang town in family house.

2 Family – father is from Kandrian, WNB; mother from Madang – has good family support – parents still alive – they are supportive of their son.

3 Marital status – single – no marriage plans imminent.

4 Education – grade 9 – 1998 – can speak English.

5 Work – subsistence farmer.

6 Financial status – dependent on parents and family – mother is employed – family sells some copra, cocoa.

7 Health – OK.

8 Plans – want to return home, work and do CODE.

9 Community involvement – actively involved in community activities – verified by interviews with community leaders – Scott well known to volunteer community corrections officer, Anton Janget – does not have a perfect record in the community but will accept and supervise the court’s decision; John Bernard: ward No 9 member, Madang LLG: not a threat to the community. Victims’ views (ie policewomen residents of barracks): deserves to be penalised; was under influence of alcohol; has shown disrespect.

10 Prior criminal record – now serving 18 months for various offences; also convicted in 1998 for BES, sentenced to 18 months.

11 Prior probation record: OK.

Assessment

· Age 25.

· Gave an explanation of the circumstances of the incident: some elements of provocation. [But I cannot take much notice of this as it was not said in court and counsel did not bring it to my attention when the matter returned to court on 18 January 2006.]

· 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?

In the present case the maximum penalty is 14 years imprisonment.

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.

STEP 2 – WHAT IS A PROPER STARTING POINT?

From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a ‘starting point’ for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances....