The State v Wai Kikob & Galau Hagui (2008) N3944

• Jurisdiction: Papua New Guinea
• Judge: Cannings, J
• Judgment Date: 15 February 2008
• Court: National Court
• Citation: (2008) N3944
• Docket Number: CR NO 286 OF 2007
• Year: 2008
• Judgement Number: N3944

Full Title: CR NO 286 OF 2007; The State v Wai Kikob & Galau Hagui (2008) N3944

National Court: Cannings, J

Judgment Delivered: 15 February 2008

N3944

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 286 OF 2007

THE STATE

V

WAI KIKOB & GALAU HAGUI

Madang: Cannings J

2007: 16 October;

2008: 15 February

SENTENCE

CRIMINAL LAW – sentence – arson – Criminal Code, Section 436 – offenders acted with others – set fire to and destroyed bush material houses and contents – motivated by belief that homeowners used sorcery to make their sister sick – guilty pleas – sentences of 5 years and 8 years.

Two young men pleaded guilty to arson. They acted in concert to burn down a dwelling house and kitchen house belonging to a person they suspected of making their sister sick through sorcery. Then one of them burned down two other dwelling houses and another kitchen house, for the same reason.

Held:

(1) When sentencing multiple offenders for multiple offences, the court should arrive at a notional sentence for each offender, for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.

(2) The following notional sentences were passed:

· offender No 1: count 1, 5 years + count 2, 2 years = 7 years.

· offender No 2: count 1, 5 years + count 2, 2 years + count 3, 5 years + count 4, 2 years + count 5, 2 years = 19 years.

(3) For offender No 1, the offences were part of a single transaction and therefore the sentences will be served concurrently.

(4) For offender No 2, counts 1 and 2 will be served concurrently; counts 3 and 4 will be served concurrently with each other, and cumulatively to counts 1 and 2, and 5.

(5) The totality principle requires that the total sentence for offender No 2 be reduced, to avoid imposition of a sentence disproportionate to the totality of the criminal conduct.

(6) Accordingly the court imposed total head sentences of 5 years for offender No 1 and 8 years for offender No 2.

(7) The sentences were fully suspended subject to conditions including payment of compensation to all victims, within six months.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271

Kwayawako and Five Others v The State [1990] PNGLR 6

Mase v The State [1991] PNGLR 88

Public Prosecutor v Kerua [1985] PNGLR 85

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

The State v David Kondave CR 1450/2006, 11.10.07

The State v Kuru Bisok & Gahu Kuru CR 42 + 43/2007, 11.10.07

Tom Longman Yaul v The State (2005) SC803

SENTENCES

This was a judgment on sentence for two offenders convicted of arson.

Counsel

M Ruarri, for the State

B Tabai, for the offenders

15 February, 2008

1. CANNINGS J: This is a decision on sentence for two young men –Wai Kikob and Galau Hagui – from Garim village, Madang Province who pleaded guilty to arson. They acted in concert to burn down a dwelling house and kitchen house belonging to a person they suspected of making their sister sick through sorcery. In addition, Galau Hagui burned down two other dwelling houses and another kitchen house, for the same reason.

2. The incidents took place at their village between 2.00 and 3.00 pm on 2 March 2006. They joined with other villagers, armed with bushknives, axes and slingshots, and went first to a house belonging to Gilas Mamat. Gilas’s son, Michael, was there but they chased him away, then burned down Gilas’s dwelling house and kitchen house, causing damage and losses to the value of K4,100.00.

3. After that, Galau went to a house belonging to two brothers, Danny Abui and Mafeu Abui. He joined with others in burning down the brothers’ dwelling house and kitchen house, causing damage and losses to the value of K1,200.00. Then he went to the house belonging to Robert Abui Mamat, burned it down and caused damage and losses to the value of K2,700.00.

4. Wai Kikob has been convicted of and is to be sentenced for two counts of arson:

· count 1 – dwelling house of Gilas Mamat; and

· count 2 – kitchen house of Gilas Mamat.

5. Galau Hagui has been convicted of and is to be sentenced for five counts of arson:

· count 1 – dwelling house of Gilas Mamat;

· count 2 – kitchen house of Gilas Mamat;

· count 3 – dwelling house of Danny and Mafeu Abui;

· count 4 – kitchen house of Danny and Mafeu Abui;

· count 5 – dwelling house of Robert Abui Mamat.

ANTECEDENTS

6. Neither offender has any prior convictions.

ALLOCUTUS

7. 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.

Wai Kikob: I want to say sorry for what I have done. This is my first time to be in such trouble. I believed that they used sorcery to make our sister sick. That is why I did what I did. I ask the court for mercy.

Galai Hagui: I want to say sorry for what I have done. I believed that my sister became sick through sorcery, that’s why I did what I did. I ask the court for mercy.

OTHER MATTERS OF FACT

8. 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).

9. It is clear that both offenders co-operated with the police and made admissions when interviewed a few days after the incidents.

PERSONAL PARTICULARS

10. Wai Kikob is 19 years old, single and educated to grade 7. He left school in 2005 and has been a villager ever since.

11. Galau Hagui is 21 years old, single and educated to grade 8. He worked for two years with Bismarck Maritime and is now a villager.

SUBMISSIONS BY DEFENCE COUNSEL

12. Mr Tabai highlighted the guilty pleas and argued that the offences were not in the worst category as the houses were unoccupied at the time the offenders set fire to them and no one was in danger of being killed. The offenders had a genuine belief that the victims had used sorcery to make their sister sick. A total sentence in the range of four to six years imprisonment would be appropriate.

SUBMISSIONS BY THE STATE

13. Mr Ruarri submitted that this was a serious case of arson. The offenders took the law into their own hands and custodial sentences should be imposed. Several houses were burned down in the raid and personal belongings were lost.

DECISION MAKING PROCESS

14. 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 sentences have been imposed for equivalent offences?

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

· step 5: should the sentences be served concurrently or cumulatively?

· step 6: what is the effect of the totality principle?

· step 7: should the pre-sentence periods in custody be deducted?

· step 8: should all or part of the sentences be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

15. 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?

16. As I have said in a number of arson cases, the starting point for sentencing for the serious offence of burning down a dwelling house should be ten years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED?

17. Before I fix a sentence, I will consider sentences I have handed down recently in other arson cases in Madang Province. These cases are shown in the following table.

TABLE 1: NATIONAL COURT SENTENCES FOR ARSON,

MADANG PROVINCE, CANNINGS J

No Case Details Sentence

1 The State v Guilty plea – offender burned down the 6 years
David Kondave house of a person in his village he
CR 1450/2006, suspected of killing his brother through
11.10.07 sorcery – semi-permanent house –
properties inside house also destroyed
– total damage bill K8,000.00.

2 The State v Kuru Guilty pleas – offenders, a father and 6 years,
Bisok & Gahu Kuru son, joined with others in burning 4 years
down the bush material house of a
CR 42 + 43/2007, person whom they believed had built
11.10.07 his house on their land.

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

18. When sentencing multiple offenders for multiple offences, the court should arrive at a notional head sentence for each offender, for each offence, before determining whether the sentences should be served cumulatively or concurrently, then applying the totality principle and deciding whether to suspend any part of the sentences.

19. The offenders had an equal level of involvement in the offences of which they were both convicted (counts 1 and 2) and their personal circumstances are similar. Therefore it is appropriate to impose the same sentences for those offences. Galau Hagui will, in addition, be given notional sentences for counts 3, 4 and 5.

Count No 1: setting fire to Gilas Mamat’s dwelling house

20....