The State v Joseph Kalal (2019) N7797

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 10 April 2019
• Citation: (2019) N7797
• Docket Number: CR NO. 179 OF 1997
• Court: National Court
• Year: 2019
• Judgement Number: N7797

Full Title: CR NO. 179 OF 1997; The State v Joseph Kalal (2019) N7797

National Court: Anis J

Judgment Delivered: 10 April 2019

N7797

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 179 OF 1997

THE STATE

V

JOSEPH KALAL

Kokopo: Anis J

2019: 15 March, 4, 5 & 10 April

CRIMINAL LAW – Admission to the offence - arson – section 436(a) of the Criminal Code Chapter No. 262 – bush material house burnt down in retaliation – discussion on mitigating and aggravating factors – whether extenuating circumstances present - appropriate sentence – whether partial or full suspended sentence appropriate

Facts

The prisoner and people from his village had a dispute with the people from their neighbouring village. In the end, the neighbouring village burnt down houses from the prisoner’s village including the prisoner’s house. The prisoner and some village people from his village retaliated on the same day. The prisoner set fire to one of the houses of the rival village. The prisoner voluntarily surrendered 2 days later when police arrived at his village to investigate. He was granted bail. He later absconded bail, returned to his village and had lived there for about 23 years. He was re-arrested and put in custody. He has pleaded guilty to the charge of arson.

Held

1. A prison term of four (4) years was considered appropriate as a starting point for the prisoner.

2. The mitigating and aggravating factors were equal and so equal discounts had to be applied, and as a result, this neither increased nor reduced the starting point sentence of four (4) years imprisonment.

3. When considering the extenuating circumstances, it reduced the severity of the committed offence, and the new starting point was assessed at two (2) years imprisonment.

4. No deductions were allowed for the time that had been spent in custody.

5. The prisoner’s Court bail of K200 was forfeited to the State.

6. A non-custodial sentence of two (2) years with imposed probationary conditions were imposed on the prisoner.

Cases cited

Steven Loko Ume v. The State (2006) SC836

State v. Kuru Bisok (2007) N5483

State v. Bart Kiohim Mais (2005) N2811

State v. Peni Bilak (2005) N2866

State v. Isaiah Iona (2018) N7480

State v. Joe Ngotngot & Eremas Matiul (2016) N6364

Counsel

Mr G. Tugah, for the State

Mr N. Katosingkalara, for the Prisoner

SENTENCE

10th April, 2019

1. ANIS J: On 15 March 2019, the prisoner pleaded guilty to the offence, arson, under section 436(a) (offence) of the Criminal Code Act Chapter No. 262 (Criminal Code). This was his sentence hearing. It was heard on 5 April 2019. I reserved my ruling to today at 9:30am.

2. This is my ruling.

BACKGROUND

3. The prisoner comes from a village called Hoia which is situated in the East Pomio Local Level Government (LLG) in East New Britain Province. At that time, a dispute arose between two (2) clans, the Tomoiep Clan and the Suluka Clan. Members of the Suluka Clan were said to have burnt down houses that belonged to the Tomoiep Clan. So, on 28 October 1996, at around 3pm, the prisoner, with members of the Tomoiep Clan, retaliated by launching an attack at a village called Long village that belonged to the Suluka Clan. Over there, the prisoner set alight a house that was made of bush material. The house caught fire and was burnt to ashes.

4. Two (2) days later, police arrived at the prisoner’s village to investigate. The prisoner voluntarily surrendered. He was arrested and charged with the offence. On 29 January 1997, the prisoner was granted a Court bail of K200 to await prosecution. The prisoner absconded bail shortly after. A bench warrant was issued for his arrest. After 23 years, the prisoner was arrested in March of this year. The prisoner is in custody.

ARSON

5. The offence arson is prescribed under section 436 of the Criminal Code. The prisoner has pleaded guilty to section 436(a). It states, and I quote in part, A person who wilfully and unlawfully sets fire to — (a) a building or structure, whether completed or not….. is guilty of a crime…… Penalty: Subject to Section 19, imprisonment for life.

ISSUES

6. The issues in my view are, (i), whether the Court should consider and impose the maximum sentence of life imprisonment, and if not, what would be the suitable sentence for the prisoner, and (ii), whether the sentence imposed should be wholly or partially suspended with imposed conditions.

RELEVANT INFORMATION

7. The prisoner is 46 years old. His parents and all his seven (7) siblings have passed on. He is the last surviving sibling of the family. He is illiterate. He completed grade two (2) in his primary education. He never excelled further after that in his education. He has never been formally employed. He is a subsistence farmer. He also operates a small trade store in his village.

8. The prisoner has no prior convictions.

ALLOCATUS

9. This is what the prisoner had to say at allocatus. He said he was sorry for what he had done to the government and to the eyes of the Court. He said he was wrong. He said he would like to also say sorry to the community for the wrongs he did to his brothers. He asked the Court to have mercy on him and give him a suspended sentence.

MITIGATING FACTORS

10. I note the submissions of both counsel regarding the mitigating factors. In my view, they are, (i), first time offender, (ii), co-operated with police and admitted to committing the offence, and (iii), expressed remorse.

11. I reject other mitigation factors submitted by both counsel. Let me comment on the following. Firstly, in relation to the claim defacto provocation, I reject that as a mitigating factor because I will address that separately below. I also note that de facto provocation cannot be regarded as a mitigating factor in the strict sense because its effect is to reduce or diminish the gravity of a committed offence. See the case Steven Loko Ume v. The State (2006) SC836. Secondly, I also reject the claim that because the prisoner had observed good behaviour and peace for the past 23 years, that that should be noted down as a mitigating factor. With respect, I find this claim not only baseless but quite bizarre. The prisoner had absconded bail and an arrest warrant had been issued for his arrest; he had been an outlaw for 23 years before he was apprehended. In my view, if the prisoner was a good law-abiding person then he should never have absconded his bail in the first place. The defence also submits that no lives had been put at risk for the committed offence, as such, it claims that this should also be put down as a mitigating factor. I, however, reject this as a mitigating factor because there is insufficient evidence on this point before me. It is not known whether there was anyone inside the house when it was set alight by the prisoner. Without that and in my view, it would be speculative and unjust to base my findings on unfounded facts.

AGGREVATING FACTORS

12. I note the submissions of both counsel regarding the aggravating factors. In my view, they are, (i), group attack, (ii), deliberate attack, (iii), endangering lives of the people.

13. I reject the claim that I should include absconding bail for 23 years, as an aggravating factor. In my view, this fact is separate and has nothing to do with the facts that surrounded the offence to which the prisoner has pleaded guilty. It may however be relevant when the Court is considering the type of punishment that may be imposed on the prisoner. I also reject the claim that the offence is prevalent. Despite making the claim, the prosecution has not drawn my attention to facts or case law, to substantiate the claim. I also reject as an aggravating factor, the claim that a total of nine (9) houses had been burnt down by the prisoner. I make this ruling because the prisoner was indicted for burning down a single house, and he has pleaded guilty to that. The prisoner did not plead guilty to burning down more than one (1) house. In my view, it is therefore unfounded for the defence to include that (i.e., burning down of 9 houses) as an aggravating factor.

EXTENUATING CIRCUMSTANCES

14. I find two (2) extenuating circumstances in this case. Firstly, I find that there was provocation in the non-legal sense. Earlier that day on 28 October 1996, people from the rival clan, Suluka, entered the village of the prisoner and set fire to many houses there including the prisoner’s house. Several pigs and chickens were killed as well. Not long after, the prisoner got a burning piece of wood from his burnt down house, and he carried that with him over to the neighbouring village where he used that to set fire onto the bush material house concerned.

15. The second extenuating factor is this. In the record of interview, the prisoner was asked whether he knew that he had broken a law of the country when he burnt down the house. The prisoner responded, and I quote, “No”. I find his response significant. I take into account the fact that, at the material time, the prisoner was a young youth who was 20 years old and who was illiterate with no proper educational background. And I also take into account the fact that...