The State v Henny Wamahau Ilomo (2003) N2420

• Jurisdiction: Papua New Guinea
• Citation: [2003] PNGLR 41
• Date: 01 May 2003
• Court: National Court
• Year: 2003

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

National Court: Kandakasi J

Judgment Delivered: 1 May 2003

1 CRIMINAL LAW—PRACTICE AND 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—s2, s3, s4, and s5 of Criminal Law (Compensation) Act 1991—s19 and s436 of the Criminal Code.

2 CRIMINAL LAW—SENTENCE—PRACTICE AND PROCEDURE—Arson—guidelines recently suggested—Inappropriate to adopt and apply them as they have not yet been sufficiently published—s436 of the Criminal Code.

3 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—s2, s3, s4 and s5 Criminal Law (Compensation) Act 1991.

4 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—s19 and s436 of the Criminal Code.

5 Public Prosecutor v Don Hale (1998) SC564, The State v Micky John Lausi (2001) N2073, The State v Abel Airi (2000) N2007, The State v Dobi Ao (No 2) [2002] PNGLR 55, The State v Otom Masa (2000) N2021, The State v Andrew Yeskulu [2003] PNGLR 27, The State v Ipu Samuel Yomb [1992] PNGLR 261 and Roger Jumbo v The State [1998] PNGLR 197 referred to

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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 29 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) SC564. 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 (2001) N2073. In so doing, I noted and I...