The State v Oscar Rebon, Alken Rebon And Nautim Benal (2007) N4996

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 09 March 2007
• Court: National Court
• Citation: (2007) N4996
• Docket Number: CR NOS 29-31 of 2005
• Year: 2007
• Judgement Number: N4996

Full Title: CR NOS 29-31 of 2005; The State v Oscar Rebon, Alken Rebon And Nautim Benal (2007) N4996

National Court: Cannings J

Judgment Delivered: 9 March 2007

N4996

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 29-31 OF 2005

THE STATE

V

OSCAR REBON, ALKEN REBON AND NAUTIM BENAL

Kimbe: Cannings J

2007: 5, 9 March

CRIMINAL LAW – Criminal Code, Section 436 (arson) – burning down of dwelling house as a reprisal regarding a neighbourhood dispute – sentence after a trial at which offenders pleaded not guilty.

Three men were convicted after a trial of arson. They deliberately burned down a bush material house as they had a dispute with the owner. They were members of a large mob that attacked the house with an occupant inside. The incident happened in the late afternoon. Their level of involvement was equal. Their pre-sentence reports strongly favoured suspended sentences

Held:

(1) In the absence of Supreme Court sentencing guidelines the starting point for sentencing for arson regarding a dwelling house is ten years imprisonment.

(2) The mitigating factors were: offence not planned; de-facto provocation; isolated incident; no further trouble caused; first-offenders; favourable pre-sentence reports and they co-operated with the court.

(3) Aggravating factors were: damage of high value; a man and his family were directly affected; lives put at risk; mob attack; did not give themselves up; no reconciliation or compensation; no remorse; did not plead guilty.

(4) The head sentence is ten years imprisonment. Each sentence was fully suspended on conditions including that each offender pay K2,500.00 cash compensation to the victim within three months. If that or any other condition is breached the relevant offender will be required to show cause why he should not be immediately committed to custody to serve the balance of his sentence.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271

The State v Alfred Awesa CR 1587/2005, 06.04.06

The State v Bart Kiohin and Henry Kevi (2005) N2811

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 Brendan Oll and Nathan Saisai (2004) N2544

The State v Enni Matthew and Others (No 2) (2003) N2563

The State v Henny Wamahau Ilomo (2003) N2420

The State v Mathias Inabari (2004) N2587

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 Prodie Akoi (2004) N2584

The State v Rex Hekawi Tami CR 1590/2005, 23.03.06

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

SENTENCES

This is a judgment on sentences for arson.

Counsel

F Popeu, for the State

O Oiveka, for the offenders

9 March, 2007

1. CANNINGS J: This is a decision on sentences for three men convicted after trial of arson. On 21 December 2006 I convicted the three offenders – Oscar and Alken Rebon and Nautim Benal – of arson following a trial at which they pleaded not guilty. They committed the offence at Tamba oil palm settlement, near Kimbe, in October 2004. They burned down a bush-material dwelling house in which the complainant, Blakie Yalopi, and his family were living. The incident happened in the late afternoon, while the complainant was asleep in the house. The offenders joined with a number of others in raiding the complainant’s house, assaulting Blakie, terrorising him, his wife and children and setting fire to the house as a reprisal for an assault committed by Blakie and his relatives against a friend of the co-accused, Wain Latiti. The complainant escaped through the floorboards of his house.

2. The direct cause of the incident was that one of the complainant’s pigs had strayed into a nearby block belonging to the family of the third offender, Nautim Benal. Nautim’s mother speared the pig. Blakie demanded compensation but his demand was refused. Supporters of Blakie then assaulted Wain and Wain was taken to the hospital for treatment. Wain’s supporters – including the three offenders – then staged their attack on Blakie’s house, burning it down. There is a history of ill will between Blakie and his supporters and the families of the three offenders and their supporters. Wain Latiti, a Tolai man, died between the day of the incident and the time of the trial due to causes unknown. It was not suggested in the trial that he had died due to injuries caused by his being assaulted on the day of the incident. There was evidence at the trial that Wain had an ongoing problem with Blakie who he regarded as an illegal settler or squatter. Wain was trying to have Blakie evicted from the settlement as he was, is still not, a block-holder, and according to some people at Tamba was, and still is, a troublemaker. This was not a case where the court was left wondering about the motive for commission of the crime. The offenders were angered by the assault on their friend Wain and they and the people they acted in concert with were angry with a man who they regarded as a troublemaker and an outsider who did not belong in their community.

ANTECEDENTS

3. None of the offenders has any prior convictions.

ALLOCUTUS

4. 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. A paraphrased summary of their response follows:

Oscar Rebon: This is my first time to be convicted of any offence. I want to ask this court for mercy by giving me probation and a non-custodial sentence.

Alken Rebon: I ask the court to give me a second chance and show me mercy. I request a non-custodial sentence.

Nautim Benal: I ask for mercy from the court. If the court puts me on probation I will try to pay some compensation.

PRE-SENTENCE REPORTS

5. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received pre-sentence reports under Section 13(2) of the Probation Act. The reports, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, are summarised below.

OSCAR REBON

Age: 35-year-old male.

Family background: parents are from Kokopo, ENB Province – born and raised in WNB, at Tamba – parents settled in Tamba in 1968 – fifth born in family of eight – lives on the family block at Tamba, Section 5, with his wife and children, his father and other family members.

Marital status: Married with three children.

Education: grade 6, Tamba Primary School.

Employment: has worked as a carpenter intermittently, most recently in 2005-2006, but currently unemployed.

Health: some backache but otherwise OK.

Financial status: has a bank account with a balance of K200.00; earns income from the oil palm block but his father controls the oil palm money; also has a chainsaw, which he hires to others. Family members in other parts of the country will help him pay compensation if he is ordered to do so.

Plans: wants to build a separate house for his wife and family – may go back to carpentry.

Attitude of community to the offence: the complainant, Blakie Yalopi, is not highly regarded in the community – regarded as a troublemaker. The local community wants the offender to be given probation as he has already been engaged to build a new classroom at the Tamba Primary and Elementary School in 2007.

Community background: highly regarded in Tamba community – involved with both United and SDA Churches – United Church pastor and Village Court magistrate speak highly of him.

Victim’s attitude: the victim, Blakie Yalopi says the total value of properties destroyed was K47,000.00 but he would be willing to accept K15,000.00 and to give the offenders time to pay.

Recommendation: the offender is suitable for probation – should be ordered to build a new house for complainant and pay compensation.

ALKEN REBON

Age: 24-year-old male.

Family background: as per his brother Oscar, the first co-offender.

Marital status: Single.

Education: grade 10, Moramora Technical School.

Employment: no formal employment history other than working the family’s oil palm block.

Health: some backache but otherwise OK.

Financial status: has a bank account with a balance of K200.00; earns income from the oil palm block but his father controls the oil palm money; also has a chainsaw, which he hires to others. Father will help him pay compensation if he is ordered to do so.

Plans: wants to attend Hagen Technical School next year to do an electrical course.

Attitude of community to the offence: the complainant, Blakie Yalopi, is not highly regarded in the community – regarded as a troublemaker.

Community background: well regarded in Tamba community – involved with United Church – United Church pastor and Village Court magistrate speak highly of him – regarded as quiet and humble person.

Victim’s attitude: as per Oscar.

Recommendation: the offender is suitable for probation – should be ordered to build a new house...