The State v Tony Kamotau

• Jurisdiction: Papua New Guinea
• Judge: Toliken, J.
• Judgment Date: 19 July 2016
• Citation: (2016) N6412
• Court: National Court
• Year: 2016
• Judgement Number: N6412

Full : CR Nos 976 & 977 of 2015; The State v Tony Kamotau (2016) N6412

National Court: Toliken, J.

Judgment Delivered: 19 July 2016

N6412

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR Nos.976 & 977 OF 2015

THE STATE

V

TONY KAMOTAU

Alotau : Toliken, J.

2016: 14th June, 19th July

CRIMINAL LAW – Sentence – Arson – Plea – Offender sets fire to stack of mineral fuel (zoom) and shed – First time offender – No remorse shown – some non-legal provocation – Not a prevalent offence in the Province but prevalent nationwide – Need for deterrence – Starting Point - Starting points for dwelling house, public institutional building and garden houses considered - Starting Point of 7 years for economic and commercial building suggested – Head sentence - 6 years – Criminal Code Ch. 262, s 436 (d).

SENTENCE – Grievous bodily harm – Two counts – Unprovoked assault on two innocent victims – Some permanent disability by one victim – Prevalent offence – Need for deterrence – Staring point 3 ½ years – Head sentences 4 years for each count – Criminal Code Ch. 262, s 319.

SENTENCE – Whether cumulative or concurrent – Though different victims, part of same transaction – Sentences to run currently – Suspension Inappropriate.

Cases Cited:

Avia Aihi v The State (No.3) [1982] PNGLR 92)

Goli Golu v The State [1979] PNGLR 653

Kongian v The State (2007) SC928

Mase v The State [1991] PNGLR 88

Public Prosecutor v Kerua [1985] PNGLR 85

Saperus Yalibakut v The State (2006) SC 890

The State v Bart Kiohin Mais & Anor (2005) N2811

The State v Benny Makeu; CR No. 564 of 2012(Unnumbered judgment dated 13th August 2015)

The State v Charlie Dinou; CR No. 729 of 2014 (Unnumbered judgment dated 6th May 2016)

The State v Emmanuel Dos; CR No. 644 of 2013 (Unnumbered judgment dated 15th April 2016),

The State v Konos (2010) N4157

The State v Lawasi (2015) N5964

The State v Mapi Mack (2010) N4100

The State v Sengi (2015) N6087

The State v Sheekiot (2011) N4454

The State v Tokenaki (2015) N5960

The State v Yeskulu (2003) N2241

The State v Yomb (1992) PNGLR 261

Counsel:

H Roalakona, for the State

C Kambua, for the Prisoner

SENTENCE

19th July, 2016

1. TOLIKEN J: On 14th June 2016, the accused pleaded guilty to an indictment charging him with one count of arson and two counts of unlawfully causing grievous bodily harm, offences under Sections 436 (d) and 319 of the Criminal Code Ch. 262 (the Code) respectively.

2. He was charged that on 22nd day of February 2015 at Vidia village, Rabaraba , Milne Bay Province he –

Count One: “… wilfully and unlawfully set fire to a stake of mineral fuel belonging to Sisiwa co-operative society.”

Count Two: “… unlawfully did grievous bodily harm to one Chrisenda Kadiewa.”

Count Three: “… unlawfully did grievous bodily harm to one Barten Didigewa.”

3. The brief supporting facts are as follows; on 22nd February 2015, the prisoner armed himself with a bush knife and walked to Tipara Hamlet at Vidia Village. He walked to the house of one Lima Didirebona where there was a bush material shed where zoom belonging to the Sisiwa Co-operative society was stored. He cut the door down and when he entered he cut open a 20 litre container of zoom. He then walked over to Lima Didirebona’s house and picked up a burning piece of wood and dry coconut leaves. He returned to the shed and set fire to the fuel (zoom) and the shed.

4. The prisoner then confronted Chrisenda Kadiewa and Barton Didigewa who were returning to Tipara Hamlet from a church service. He attacked Chrisenda Kadiewa with a bush knife, cutting her on left arm, and when Barten Didigewa tried to stop him from further attacking Chrisenda, he cut him on his head. He then ran away. The victims were taken to the Dogura Health Centre and later transferred to the Alotau General Hospital for treatment.

5. The Medical Reports of the victims dated 20th March 2015 by Dr. Pakop Titus revealed that Chrisenda Kadiewa sustained compound fractures to her left radius and ulna bones, while Barten Didigewa sustained a fracture to the skull and tear into his brain. Both victims were hospitalised and eventually discharged, but were to continue to attend regular reviews.

6. The offence of arson carries a maximum penalty of life imprisonment, while causing grievous bodily harm carries a maximum penalty of 7 years.

7. Whether the prisoner gets the maximum penalties for his offences will depend on the circumstances of his offences and whether they can be considered to be worst instances of these types of offences. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92)

8. The issues for the court to consider therefore are;

1. Are these offences the worst of their type so as to attract the prescribed maximum penalties?

2. If not what would be an appropriate sentence for each count?

3. Should suspension be considered?

9. The Prisoner comes from Vidia village, Rabaraba, in the Weraura LLG in the Alotau District of the Milne Bay province. He is 32 years old and is single. He comes from a family of 6 siblings of which he is the eldest. He was educated up to Grade 6 only and is a member of the Anglican Church. He was briefly employed for year by Milne Bay Estates as a casual labourer. He is a first time offender and had been in custody for 1 year and 4 months prior to his conviction on plea.

10. The prisoner chose not to say anything when asked why he should not be punished for his offences.

11. However, in his behalf Ms. Kambua submitted the two counts of causing grievous bodily harm are not the worst instances of the offence, and therefore they should attract head sentences of 3 years because the prisoner did not intend nor pre-plan to cause harm to the victims.

12. For the count of arson, counsel submitted that the prisoner was angry after he was attacked and chased my villagers who suspected him of destroying a cross in front of the village church. In his anger he set alight the fuel shed and the 840 litres of zoom (pre-mix petrol) worth K6510.00 that were in the shed in the process. Counsel said that the prisoner acted spontaneously and did not plan to set the shed on fire, and that he did not endanger anyone as no one was around or in the shed when he set it alight. For this count Counsel submitted that an appropriate sentence should 3 years also.

13. An oral pre-sentence report was filed in behalf of the prisoner. Whilst it describes the prisoner’s reasons for his action, the report recommends against probation supervision.

14. Ms. Roalakona, for the State on the other hand submitted that appropriate sentences for each of the three counts should be 3 years. Counsel said that the offences are aggravated by the facts that the attack on unarmed victims was unprovoked, they sustained injuries, substantial financial loss was incurred by the villagers through their society and that this offences are very prevalent.

15. So, what are the objective seriousness of the prisoner’s offences and his level of culpability? Taken in totality, given that these offences were committed almost simultaneously, the offences may not necessarily be the worst because of lack of pre-planning. Despite that, the harms done to the victims – the Sisiwa Co-operate Society and Chrisenda Kadiewa and Barten Didigewa were quite serious – to the Society, substantial financial loss, and serious injuries to Chrisenda and Barten. Setting fire to 840 litres of highly inflammable combustive fuel such as zoom carries with it the inherent danger of injury or even death and collateral damage to other buildings. I assess the seriousness of this offences and the prisoner’s culpability to moderately high.

16. What then should be the starting points here? For grievous bodily harm it has been held that the starting point should be 3 ½ years. (The State v Sheekiot (2011) N4454; The State v Konos (2010) N4157 per Cannings, J.) I have followed this in a number of my own cases (The State v Tokenaki (2015) N5960; The State v Lawasi (2015) N5964; The State v Emmanuel Dos; CR No. 644 of 2013 (Unnumbered judgment dated 15th April 2016), but perhaps I should now add that this starting point should apply equally to both pleas and convictions after trial. For the two counts of causing grievous bodily harm I therefore set starting points of 3 ½ years.

17. For arson, the Supreme Court in Kongian v The State (2007) SC928 held that the starting point for the burning down of a dwelling house, or a public institution building such as a school building or hospital should be 10 years and 5 years for a ...