The State v Ronald Toura

• Jurisdiction: Papua New Guinea
• Judge: Anis AJ
• Judgment Date: 01 November 2016
• Citation: (2016) N6506
• Court: National Court
• Year: 2016
• Judgement Number: N6506

Full : CR No 1269 of 2015; The State v Ronald Toura (2016) N6506

National Court: Anis AJ

Judgment Delivered: 1 November 2016

N6506

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1269 OF 2015

THE STATE

V

RONALD TOURA

Kokopo: Anis AJ

2016: 21 July, 19 October & 1st November

CRIMINAL LAW – Sentencing - prisoner pleaded guilty to offence of arson under section 436(f) of the Criminal Code Act Chapter No. 262 - evidence of possible psychological impairment to the brain due to drug use - whether imprisonment better option for the prisoner as an alternative for rehabilitation against drug use - whether releasing the prisoner may be detrimental in terms of his drug habits - suitable punishment considered

Cases Cited:

State v. Clarence Tema (2007) N3259

State v. Francis Kawai Kauke (2013) N5131

State v. Jack Binde (No. 2) (2015) N6146

State v. Kianu Kikimbe (2016) N6180

Thress Kumbamong v. The State (2008) SC1017

Counsel:

M r L. Rangan, for the State

Ms J. Ainui, for the Prisoner

SENTENCE

1st November 2016

1. ANIS AJ: This prisoner has admitted to the charge of arson under section 436(f) of the Criminal Code Act Chapter No. 262 (Criminal Code Act).

2. On 19 October 2016, the Court administered his allocatus. His lawyer and the prosecution presented written submissions on sentences shortly after. The Court reserved its ruling to a date to be advised.

3. This is my ruling.

FACTS

4. The facts, which the prisoner has pleaded guilty to, are these: On 8 December 2014 at 1pm the prisoner went inside the premises of Soi Soi Investment Ltd at Kereba village in Kerevat, East New Britain Province. He approached an Isuzu Truck, which was parked inside the premises with the registration number ROA 621. The prisoner picked up a piece of cloth, lit it, and placed the burning cloth on the Isuzu Truck and set the truck on fire. Another person saw the burning truck and pushed the prisoner away, and he put out the fire from spreading onto other parts of the truck. The estimated damage caused by the fire to the truck was K5, 000.

ISSUE

5. The issues are:

(i) Whether the prisoner has a fit or sound mental capacity;

(ii) If so, what would be the fitting punishment to impose upon him?

(iii) Whether the prisoner should be granted probation and if so what type of probationary conditions should be set?

DETAILS, ANTECEDENT REPORT & ALLOCATUS

6. The prisoner is 28 years old. He is single. He is from Iavakaka village in Rabaul, East New Britain Province. He did not complete his primary education after he completed grade 2 at the Pilapila Primary School in East New Britain in 1996. He has never been employed. His parents separated in 1987 and he and his three (3) siblings have lived all their lives with their mother. He is the second born. His elder sister Lavinia is 31 years old. She is in the village and has two (2) children. His younger brother Joe is 16 years old. He is not educated and is in the village. His youngest brother Tokau is 14 years old and attends Kereba Primary School in East New Britain Province.

7. The prisoner has no prior convictions.

8. During administration of allocatus, the prisoner said and I quote:

"I would like to say sorry to the Court for what I have done."

MITIGATING & AGGRAVATING FACTORS

9. Both parties presented their submissions on mitigating and aggravating factors. I have considered them. Let me firstly start with the mitigating factors. I list them herein:

• admission

• co-operated fully with the police

• first time offender

• part-payment of K450 made to the victim for repair costs

• expression of remorse

10. I note that the defence has submitted use of marijuana that had affected his mental abilities as a mitigating factor. I reject that. I do not think that is a valid mitigating factor at all [see cases: State v. Clarence Tema (2007) N3259; State v. Jack Binde (No. 2) (2015) N6146]. There is no evidence or suggestion that he was forced into smoke marijuana. The only suggestion I note is from the prisoner's mother. She has stated in the pre-sentence report that the prisoner may have been influenced by other men at their block to smoke the drug. However, that, in my opinion, is not a valid reason given the fact that the prisoner is already a grown man of 28 years old. He is an adult who should or ought to be capable of being responsible for his own actions.

11. I note that both parties did not submit any aggravating factors for this case. I cannot find any valid aggravating factors. But there is suggestion that the prisoner consumes the drug marijuana so let me consider whether that can be regarded as an aggravating factor. My simple answer is "no". It is not a pleaded allegation to which the prisoner has admitted to in his plea. The suggestion or issue was raised during the course of and at the hearing of submissions on sentence by the defence counsel. And as I have stated above, the prisoner's mother only mentioned that as a point in her interview with the probation officer which was captured in his report. But these, in my opinion, were mere suggestions that had no real evidence from experts to confirm. I note that final report from the mental health officer Mr Raymond Atam of the Nonga General Hospital dated 5 October 2016 has cleared the prisoner of any permanent mental illness.

PENALTY

12. The prisoner has admitted to committing the offence of arson under section 436(f) of the Criminal Code Act. I read the said section herein:

436. Arson.

A person who wilfully and unlawfully sets fire to—

(a) a building or structure, whether completed or not; or

(b) a vessel, whether completed or not; or

(c) a stack of cultivated vegetable produce; or

(d) a stack of mineral or vegetable fuel; or

(e) a mine, or the workings, fittings or appliances of a mine; or

(f) an aircraft or motor vehicle,

is guilty of a crime.

Penalty: Subject to Section 19, imprisonment for life.

13. The maximum sentence for the offence of arson is life imprisonment. The section also acknowledges the National Court's discretionary power under section 19 of the Criminal Code Act in sentencing.

14. For the present case, it is obvious that the arson committed by the prisoner is less serious and as such, in my opinion, it should not attract the maximum sentence of life imprisonment. This Court will not exercise its power and award the maximum penalty of life imprisonment.

SUBMISSONS

15. The defence submits the prisoner should receive a sentence of six (6) years. It submits that the Court should exercise its discretion and fully suspend the sentence of six (6) year with imposed conditions. It also submits that imposed conditions should include making an order for the prisoner to repay the value of the damage caused to the vehicle with set timeframe for compliance.

16. The defence concludes by submitting that the Court should be lenient on the prisoner.

17. The prosecution on the other hand submits the prisoner should be imprisoned. The prosecution submits that this is consistent with the victim's wish. The victim has stated in the pre-sentence report that the prisoner does have the capacity to repay the K5, 000 so he should fully serve his custodial sentence. The victim also said that custodial sentence, if imposed by the Court, would provide some form of rehabilitation for the prisoner given his conduct and habit. Let me quote the probation officer's summary of what the victim had said because, in my opinion, her suggestion appears to be a sensible one. It reads:

She advised the author that seeing that the compensation monies was not being paid or that the family was not in a position to pay, it would be best for all that the offender remain in custody and that he should serve out court ordered custodial sentence, to assist in the rehabilitation of Mr Ronal ToUra.

18. The victim said in the report that the prisoner had been stalking her daughter for sometime before the incident happened. The report also revealed that the prisoner has a habit of stalking young girls and making up stories to other people.

19. The prosecution did not submit a prison time to be imposed on the prisoner. It submits however that the prisoner should be imprisoned for some time for his own good. The submission seems to be based on the pre-sentence report particularly concerning the prisoner's possible drug use and his stalking habits. The prosecution, in line with the victim's plea, submits that the prisoner should be imprisoned because in that way, he would be kept away from taking drugs that are harmful to him and that being in prison, the prisoner could continue to undergo or receive treating to improve his mental condition.

COMPARATIVE CASES

20. I have considered various similar reported cases on arson. I have identified two (2) cases which I believe are relevant or that can reasonably be compared the present case.

21. The first case is State v. Francis Kawai Kauke (2013) N5131. The prisoner was a ship's captain. He suspected his wife of having an affair with his neighbour. One time, he got drunk and went over to his...