The State v Francis Kawai Kauke

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 04 April 2013
• Citation: (2013) N5131
• Court: National Court
• Year: 2013
• Judgement Number: N5131

Full : CR NO 640 of 2012; The State v Francis Kawai Kauke (2013) N5131

National Court: Cannings J

Judgment Delivered: 4 April 2013

N5131

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 640 0F 2012

THE STATE

V

FRANCIS KAWAI KAUKE

Madang: Cannings J

2012: 14 November, 12 December,

2013: 4 March, 4 April

CRIMINAL LAW – sentence – arson – Criminal Code, Section 436(f) – offender acted alone – set fire to and destroyed two 15-seater buses – motivated by anger towards owner of buses for having affair with offender’s wife – guilty plea – appropriate length of head sentence – whether all or part of sentence should be suspended

The offender entered his neighbour’s yard without permission late at night, drunk and armed with a spade, shouting obscenities about his neighbour, the victim, (who was not present) and threatening those present with violence if they attempted to stop him from setting fire to the victim’s two 15-seater buses, which he proceeded to do. The offender was angry with the victim for having an affair with the offender’s wife. The buses were licensed public motor vehicles with a value of K45,000.00 each, used to generate income for the victim and his family. The offender pleaded guilty to a charge of arson. This is the judgment on sentence.

Held:

(1) The maximum penalty is life imprisonment and it is useful to apply a starting point of ten years imprisonment.

(2) Mitigating factors are: lives not put at risk; there was a clear and identifiable reason for doing what he did: a genuine belief that the victim had committed adultery with the offender’s wife in the offender’s home; it was an isolated incident; the offender acted alone; surrendered to police; pleaded guilty; remorse; first-time offender.

(3) Aggravating factors are: it was a violent and frightening incident, especially for one of the victim’s children; the incident disturbed the peace in the local community; the act of arson was accompanied by threats of personal violence; the offender took the law into his own hands; the offender caused damage of substantial value (K90,000.00); the deliberate object of the attack was to destroy the victim’s income-earning assets; the offender caused great distress and suffering to the victim and his family.

(4) A sentence of five years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended as there was insufficient evidence that the offender had the means available to make compensation a realistic option and the victim was no longer interested in compensation.

Cases cited

The following cases are cited in the judgment:

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

Saperus Yalibakut v The State (2006) SC890

The State v Alfred Awesa CR 1587/2005, 06.04.06

The State v Anton Towakra, John Towakra & Carl Mathew (2009) N3845

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 David Kondave CR 1450/2006, 11.10.07

The State v Jacob Patore CR 32/2005, 27.03.07

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

The State v Mondo Baundo (2007) N5045

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

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

SENTENCE

This is a judgment on sentence for arson.

Counsel

M Pil, for the State

E Valakvi, for the offender

4th April, 2013

1. CANNINGS J: Francis Kawai Kauke pleaded guilty and he has been convicted of one count of arson under Section 436(f) of the Criminal Code. He is now before the court to be sentenced. The incident occurred at 11.00 pm on Monday 7 May 2012 at Malabor Street, Newtown, Madang town, where the offender lives. He unlawfully entered the yard of his neighbour, Lawrence Bandi. The offender was heavily intoxicated and armed with a spade which he used to smash the front windscreens of two 15-seater buses, owned by Mr Bandi, as well as the fibro walls of Mr Bandi’s house. Inside the house were Mr Bandi’s 11-year-old daughter and other relatives who were traumatised but not directly physically harmed by the offender.

2. The offender then lit a piece of cardboard which he used to set fire to the two buses. As a consequence the buses, worth K45,000.00 each, were gutted by fire and destroyed. They were licensed public motor vehicles, used by Mr Bandi as the primary source of his family’s income.

3. While he was doing all that the offender shouted obscenities about Mr Bandi, who was not present, and he threatened physical violence and hurled abuse against neighbours and onlookers who were attracted to the scene by the commotion if they tried to put out the fires. The police and fire brigade arrived on the scene later, by which time the buses were destroyed.

ANTECEDENTS

4. The offender has no prior conviction.

ALLOCUTUS

5. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment:

I apologise to the court for what I have done. I took the law into my own hands and I know that is wrong. I have until recently lived a happy life with my wife and children in Madang. I have worked as a ship’s captain for many years and I have enjoyed my career. I have never faced a situation like the one I faced on 1 May 2012, which was a very sad day for me, when I returned from a business trip to Port Moresby to be told that my wife had entered an affair with Lawrence Bandi. It was a sexual relationship and things were happening in my own home while I was away. This was a shocking situation, which I found very difficult to deal with. I was in such a disturbed state of mind that I wanted Lawrence to feel the same amount of pain that I felt. I deliberately intended to do something that would hurt Lawrence. I did try to talk to him from 1 to 6 May 2012 but he refused to talk to me. We had lived as good neighbours and friends for many years before this. After I was arrested and placed in the cell Lawrence visited me and I again tried to sort out the problem with him but it has been difficult to do so. My marriage has been ruined by the adultery that occurred.

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty he will be given the benefit of reasonable 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 (2006) SC890). He had a genuine belief that his wife had committed adultery with the victim. He felt angry and betrayed. He committed the offence when he was drunk and out of control. He made some attempt to talk to the victim before committing the offence. These facts do not excuse what he did but as he pleaded guilty they will be taken into account as mitigating factors: there was an identifiable reason for the offender’s actions and an element of de facto provocation. It will also be taken into account that the offender surrendered to the police when they arrived on the scene.

PRE-SENTENCE REPORT

7. A report on the offender was prepared by the Community Based Corrections Service. He is of mixed East Sepik (Wewak) and Madang (Bogia) parentage. He is 46 years old and has one wife, and they have four children. He has two brothers and one sister and they get on reasonably well, however family relationships have been strained due to his involvement in this offence. He has a grade 10 school education but then matriculated through the College of Distance Education and gained entry to the PNG Maritime College that resulted in his gaining qualifications as a ship’s captain. He has for some years been self-employed, his major source of income being a small business in the shipping industry based in Port Moresby which he has been endeavouring to move to Madang. His health is sound. His financial position is not presently strong but he is confident that he can compensate the victim if given sufficient time. A character reference was provided by Pastor Francis Wawur of PNG Faith Ministries Madang, attesting that the offender is a well respected person in the local community and honest, reliable, decisive and of sober habits. Pastor Wawur states that he is counselling the offender and his wife and encouraging them to place trust in God and continue with their life together.

8. As the initial report did not contain the views of the victim the court requested a supplementary report, which shows clearly the victim’s attitude: he is disgusted by the offender’s actions, which have had a severe and debilitating effect on him and his family as the two buses that the offender destroyed represented his only source of income. He was prepared to negotiate with the offender before the matter came to court and he was willing to accept some assistance from the offender so that he could restart his PMV business....