The State v Sylvester Heai Evore (2006) N3236

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 23 October 2006
• Citation: (2006) N3236
• Docket Number: CR No. 657 OF 2004
• Court: National Court
• Year: 2006
• Judgement Number: N3236

Full Title: CR No. 657 OF 2004; The State v Sylvester Heai Evore (2006) N3236

National Court: Kandakasi, J

Judgment Delivered: 23 October 2006

N3236

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 657 OF 2004

THE STATE

-V-

SYLVESTER HEAI EVORE

Kerema: Kandakasi, J.

2006: 5, 13 and 23 October

DECISION ON SENTENCE

CRIMINAL LAW – PRACTICE & PROCEDURE – Prisoner asking for restitution orders and non custodial sentence - Means assessment and pre-sentence report required – Request and consideration of – Parents in-law prepared to assist accused with meeting restitution orders – Contribution from relatives a debt to the prisoner which he must repay - Victims not opposed to restitution – Appropriate to make restitution orders - Sections 19 and 436 of the Criminal Code.

CRIMINAL LAW - Sentence - Arson - Partial burning of bulldozer seat – Fellow villagers rescuing the bulldozer - - Guilty plea –Prior conviction - Relatives prepared to assist in restitution – Assistance by relatives is debt to the prisoner which he must repay - Victims not opposed to restitution orders – Three years part custodial and part suspended on conditions imposed – Sections 19 and 436 of the Criminal Code.

Cases cited:

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

The State v Prodie Akoi and Steven Akoi (25/03/04) N2584.

The State v. Bart Kiohin Mais And Henry Kevi (23/03/05) N2811.

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

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

The State v. Dobi Ao (N0.2) (01/05/02) N2247.

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

The State v. Ennie Mathew & Ors (No. 2) (29/10/03) N2563,

The State v Henny Wamahau Ilomo (01/05/03) N2420.

The State v Bart Kiohin Mais And Henry Kevi(223/03/05) N2811

The State v. Peni Bilak (21/07/05) N2866.

Counsels:

Mr. D. Mark, for the State.

Mr. M. Lunga, for the Prisoner.

23 October, 2006

1. KANDAKASI J: You pleaded guilty to a charge of arson for the partial burning of a bulldozer seat on the Lakoro village road, in the Vailala area of the Ihu District of this Province on 1 January 2004, contrary to s.436 (a) of the Criminal Code. On being satisfied of the evidentiary basis for the charge and guilty plea as per the District Court depositions, I confirmed your guilty plea and had you convicted on the charge presented against you.

Address on Sentence

2. I then invited you to address the Court before sentence and before your lawyer could make submissions on your behalf. In response to that, you said sorry for what you have done and said you would not repeat it. Thereafter you requested through your lawyer for a pre-sentence report to be provided by the probation service and for a deferral of further submissions pending that report. I granted that application. A report was eventually furnished.

3. Based on the pre-sentence report, your lawyer made submissions on your behalf, essentially arguing for a non-custodial sentence with an order for you to pay to the owner of the bulldozer, which seat you burnt and for community base sentence as an alternative to spending time in prison. In so submitting, your lawyer urged the Court to take into account your guilty plea and your personal and family backgrounds. Your personal background is that, both of your parents are alive. You have been up to grade 9 formal education and unemployed in the formal sector. You live a village life and that you are married with one 3 year old child. By way of religion, you follow the United Church. Finally, you have a prior conviction for being in possession of drugs.

4. Your lawyer then proceeded to make submissions for a fully suspended sentence of 2 years on conditions of restitution and community based sentence or alternative you be sentence up to the rising of the Court given the time you have already spent in custody. In making that submission, your lawyer drew the Court’s attention to my own decisions in The State v. Robin Warren and Others (No 2)

1 (2003) N2418.

1 and The State v Prodie Akoi and Steven Akoi.

2 (25/03/04) N2584.

2 He also drew the Court’s attention to the decision of Cannings J. in the case of The State v. Bart Kiohin Mais And Henry Kevi.

3 (23/03/05) N2811.

3

5. The State is not opposed to the submissions of your lawyer, provided such a sentence is on conditions. The victims prefer you replacing the seat of the bulldozer you partially burnt and have obtained a quotation for a replacement seat at K2,801.83

6. It is within the discretion of the Court to determine an appropriate sentence in every case that comes before it. A number of factors play an important part in the exercise of that discretion. These include the particular facts and or the circumstances in which an offence was committed, the antecedents of the offender, whether conviction is on a guilty plea or after a trial and the nature of the offence itself. I will thus turn to a consideration of these aspects starting with a consideration of the relevant facts.

Facts

7. On Sunday 1 January 2004, between 7:00 and 8:00 am at Lakoro village road, you climbed into the cabin of a bulldozer owned by a logging company operating in your area. Once inside the cabin, you poured diesel fuel on the seat of the bulldozer and then set it on fire. A witness raised alarm in the village about what you did. The village people came over and saw smoke and flame from the burning seat. Fortunately, the village people managed to put the fire off. The fire partially damaged the seat, which could not be repaired partially but the whole seat required replacement. Meanwhile, you ran away into the bush trying to hide. However, the village people managed to find you and apprehended you and took you to the village. Thereafter the village people went and reported you to the logging company officials and in the meantime, you managed to run away again. Unfortunately, you could not hide forever, the police came to you and arrested you following formal complaints and investigations.

8. In your record of interview with the police, you claimed that, you burnt the bulldozer over disputes concerning royalties for logging and damage to the environment. However, there is no evidence of that dispute. Indeed, the evidence is that, the village people apprehended you and reported your unlawful conduct to the owners of the bulldozer. If there was a royalty dispute and there were damages to the environment, the village people could have supported you and refrained from rescuing the bulldozer and could not have apprehended you and handed you over to the police. I therefore find that you had no good reason to burn the bulldozer. I further find that, you meant to burn the whole of the bulldozer but for the swift actions of the village people.

Appropriate Sentence

9. I maintain the view that imposing a suspended sentence is not an exercise in leniency. However, it is a form of punishment aimed at achieving one of the purposes of criminal sentencing which is rehabilitation. I also maintain the view that a community-based sentence is far more effective in appropriate cases, not only in terms of rehabilitation but also in terms of serving both as a personal and general deterrence against other would be offenders.

10. Persuaded by these considerations, I imposed wholly suspended sentences in The State v. Micky John Lausi,

4 (27/03/01) N2073.

4 The State v. Abel Airi

5 (28/11/00) N2007.

5 and The State v. Dobi Ao (N0.2)

6 (01/05/02) N2247.

6 and others. I have done that only in cases where there is a well balanced pre-sentence report representative and reflective of the community’s view on the kind of penalty that an offender should receive and where the victims were receptive to restitution and a non-custodial sentence.

11. In your case, the pre-sentencing and means assessment reports confirm that, you do not have any means to restitute in terms of meeting the costs of replacing the half burnt bulldozer seat in the sum of K2801.83. Only your parents in-law are prepared to assist you with an initial payment of K300.00 and the balance over a period of time. A further K500 is likely to come from your wife. There is no evidence of any of these persons, your wife and her parents causing you to commit the offence and how you are going to repay them of what they are prepared to do for you. Further, the pre-sentence does not have any input from the owners of the bulldozer. It is the victims of a crime that directly and immediately feel and face the effects of a crime against them. Unless the victims indicate a preparedness to accept restitution in terms of the full costs of replacing the seat that you partially destroyed, there can be no order for restitution and therefore suspension of either a part of or the whole of your sentence. This is consistent with the position I took in The State v Prodie Akoi and Steven Akoi (supra) and a couple of other decisions too. In these circumstances, I do not consider it appropriate that restitution and a wholly suspended sentence is an option for you at this stage.

12. Having arrived at that...