The State v Richard Samban (2007) N4998

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 11 May 2007
• Citation: (2007) N4998
• Docket Number: CR NO 881 of 2004
• Court: National Court
• Year: 2007
• Judgement Number: N4998

Full Title: CR NO 881 of 2004; The State v Richard Samban (2007) N4998

National Court: Cannings J

Judgment Delivered: 11 May 2007

N4998

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 881 0F 2004

THE STATE

V

RICHARD SAMBAN

Kimbe: Cannings J

2007: 26 March, 8, 11 May

CRIMINAL LAW – sentence – two counts of malicious damage to property plus two counts of arson – guilty plea.

The offender went on a drunken rampage, destroying household properties belonging to his neighbours and burning down two semi-permanent homes in an oil palm settlement where he lived. He pleaded guilty to two counts of malicious damage to property and two counts of arson.

Held:

(1) When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle.

(2) The following notional sentences were passed:

(a) count 1 (malicious damage to property): 2 years;

(b) count 2 (malicious damage to property): 1 year;

(c) count 3 (arson): 4 years;

(d) count 4 (arson): 3 years;

resulting on a total potential sentence of 10 years.

(3) Though the offences were all committed as part of a single incident, there were four distinct victims, which means the sentences should be served cumulatively.

(4) However, the totality principle requires that the total sentence be reduced, to avoid imposition of a crushing sentence. Accordingly the court imposed a total head sentence of 6 years. The pre-sentence period in custody was deducted, and all of the sentence was suspended subject to conditions, including that the offender compensate and reconcile with the victims within three months.

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890

The State v Alfred Awesa CR 1587/2005, 06.04.06

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 Jacob Patore CR 32/2005, 27.03.07

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 Wesley Vireru, Ian Avusi, Jerry Mesmin & John Lalu CR 469, 470, 472 & 473/ 2002, 20.12.05

PLEA

An accused pleaded guilty to malicious damage to property (two counts) and arson (two counts) and the following reasons for sentence were given.

Counsel

F Popeu, for the State

O Oiveka, for the accused

11 May, 2007

1. CANNINGS J: This is a decision on the sentence for a young man who pleaded guilty to two counts of malicious damage to property and two counts of arson, arising from the following facts:

· On Thursday 15 April 2004 he was at Dagi oil palm settlement, near Kimbe, between 7.00 and 11.00 pm. He was under the influence of liquor, walking along the road near the oil palm blocks, in the company of others.

· He went into one of the blocks and became annoyed when someone flashed a torch in his face.

· He then went on a rampage, first going into Henry Tiotam’s block and destroying properties, including cooking utensils, a car windscreen and other personal property, worth K1,460.00. Then he went into Elias Lotu’s block and did the same thing, destroying property worth K209.00.

· He went into Henry Ruben’s block, and intentionally burned down his semi-permanent dwelling house and its contents; the damage bill being K4,761.00.

· Finally he went into Westly Papala’s block and intentionally burned down his semi-permanent dwelling house, the value of which is unknown.

ANTECEDENTS

2. He has one prior conviction, for unlawful carnal knowledge committed when he was a juvenile in 1999. Sakora J gave him a two year suspended sentence in July 2004.

ALLOCUTUS

3. I administered the allocutus, ie I gave him the opportunity to say what matters the court should take into account when deciding on punishment. He said:

There was a reason for what happened. I was drunk, yes, but I was not cross or shouting or causing trouble. Then someone flashed a torch in my face. I went into where there were a lot of people playing cards. I said sorry to them and all I wanted to know was who shone the torch at me. They did not answer me, instead they all came rushing at me and to defend myself I started destroying the property. If they had replied in a proper manner, this trouble would not have happened.

I admitted everything to the police and co-operated from the beginning with the arresting officer. I ask for mercy and a good behaviour bond. I promise to faithfully follow any conditions imposed by the court.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty, he is entitled to benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). Giving the benefit of the doubt provides an incentive for accused persons to plead guilty. This saves the State extra resources that would have been committed to the case if a trial were necessary. As for the allocutus, the version of events given by the offender far-fetched. Someone shone a torch in his face – he asked who – they rushed at him – so he destroyed property and burned down two houses to defend himself. That is a gross over-reaction, to say the least. However the prosecutor did not take issue with it, so I will take account of the de facto provocation as a mitigating factor. The prosecutor also pointed out that no-one was in the two houses when they were set on fire. This is another mitigating factor. I accept what the offender says about co-operating with the police. He signed a confessional statement three weeks after the incident.

PRE-SENTENCE REPORT

5. I received a favourable pre-sentence report from the Kimbe office of the Community Corrections and Rehabilitation Service. This has helped me set the head sentence and decide whether any of it should be suspended.

RICHARD SAMBAN

Age: 24-year-old male (aged 21 at time of offences).

Residence: Dagi VOP, 4 km from Kimbe.

Family background: parents are from Maprik, East Sepik Province – raised in WNB – last-born in family of eight – father deceased; mother alive – offender lives with his mother and two sisters at Dagi; his brothers live elsewhere.

Marital status: Single – engaged to a New Ireland lady – intends to marry her upon release from jail.

Education: grade 8.

Employment: never been employed in formal sector.

Health: excellent.

Financial status: earns income from sale of oil palm and cocoa – has a modest deposit in BSP bank account.

Plans: get married; work the family’s oil palm block; look after his mother, who is frail.

Victims’ attitudes: nothing is reported about the first two victims, Henry Tiotam and Elias Lotu, both of whom had properties destroyed; the other two victims, whose houses the offender burned down, have to some extent forgiven him: Henry Ruben has already received K700.00 compensation from the offender and would prefer to see him ordered to pay compensation rather than sent to jail; the last victim, Westly Papala, says he has forgiven the offender and bears no grudges.

Family’s attitude: supportive; his mother regards him as a reliable worker – it is hard for her, without him on the block; his two sisters do not want to see their brother spend a long time in jail.

Attitude of community: no problems before this incident – well regarded in the community.

Assessment: although he has one prior offence, he committed it when he was young and has been a responsible member of the local community – not a troublemaker.

Recommendation: suitable for probation, with counselling, which can be arranged through the Dagi United Church.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Oiveka asked me to place a lot of weight on the guilty plea; the co-operation with the police; the fact that the incident was out of character; and that the offender had a behavioural problem. He has tried to reconcile with the victims. He deserves a chance to make good what he has done wrong.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that there were four different victims so the court should not impose concurrent sentences. Appropriate notional sentences would be two years for each of the malicious damage offences and eight years each for the arson offences, a total of 20 years. This could be reduced to ten years under the totality principle, Mr Popeu submitted.

DECISION MAKING PROCESS

8. 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 offence?

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

· step...