State v Koma [1987] PGNC 42; [1987] PNGLR 262; N603 (24 July 1987)

N603

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

MOROBET AWUI KOMA AND PETER KEVIN

Waigani
Wilson J

24 July 1987

CRIMINAL LAW - Sentence - Manslaughter - Plea of guilty at close of prosecution case - Accused not main perpetrators - Degree of culpability - Relevance of - Suspended sentence - Appropriateness of - Sentences of three years with 18 months suspended on entering into five year good behaviour bond.

At the close of the prosecution case on charges of wilful murder, two accused changed their plea of not guilty to that of guilty of manslaughter. The evidence revealed that the two accused were willing participants in a planned robbery and when it became apparent that the third participant had gone into the dwelling and stabbed the inhabitant they ceased their role as watchmen and fled the scene. Both accused were young men of 18 and 20 years with no criminal records.

Held:

In all the circumstances the accused should each be sentenced to three years in hard labour, with 18 months to be suspended on their entering into a good behaviour bond for five years.

The following matters were taken into account in determining the appropriate sentence:

(a) that whilst the accused were not entitled to any discount on the basis that the pleas of guilty had contributed to the saving of State resources, they were nevertheless entitled to have the pleas of guilty taken into account as indicating remorse;

(b) that whilst the culpability and blameworthiness of the accused were substantially less than that of the main perpetrator, their roles were ones of assistance and their presence assumed encouragement and their culpability should be fixed accordingly;

(c) that part of the sentences should be suspended, not as indicating leniency but as appropriate to the community interest generally and the encouragement of rehabilitation.

R v Davey [1980] FCA 134; (1980) 2 A Crim R 254, considered.

Cases Cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Clement Maki and Tom Kasen (unreported, Supreme Court, SC No 205, 7 August 1981).
R v Anderson; R v Morris [1966] 2 QB 110; [1966] 2 All ER 644.
R v Davey [1980] FCA 134; (1980) 50 FLR 57; (1980) 2 A Crim R 254.
R v Penfold and Penfold (1979) 71 Cr App R 4.

Sentence

On a plea of guilty to charges of manslaughter by two accused the following reasons for sentence were delivered.

Counsel:

P Boyce, for the State.
R Koaru, for the accused.

24 July 1987

WILSON J.: The two prisoners were arraigned on a charge of wilful murder of one Bolin Kei and at the end of the State’s case, following the request of defence counsel and the State Prosecutor, were re-arraigned and pleaded guilty to manslaughter.

FACTS

On the evening of Friday, 7 November 1986, the prisoners with three others went to the house of the victim in Waigani. It appears that the two prisoners joined in this enterprise thinking that the plan was to rob the victim. It was about 11 pm at night when they arrived. One of the group, and it is clear, the main perpetrator, through threats of violence directed a young girl who was an acquaintance of the victim, to have the victim open the door to her house, go inside and then come out again leaving the way clear to enter. She did this and immediately ran from the scene.

The main perpetrator then entered the house and stabbed the victim twice and fled. The victim managed to stagger to the front gate where she collapsed after crying out. She died soon after.

At the time the girl awoke the victim and when she was stabbed, the two prisoners and two others remained outside the house in close proximity. They were watchmen. They fled as soon as it was apparent what had happened.

While there exists another probable motive for the murder, that is the assertion, that the victim was a police informant, I am prepared to accept as indeed does the State accept that, so far as these two prisoners are concerned, they were intending participants in a robbery. While they would have been aware that the main perpetrator carried a large knife, and thereby the possibility of violence was present, they never foresaw violence and murder as part of their joint illegal enterprise. As to the law on the appropriateness of a conviction for manslaughter in these circumstances: see R v Anderson; R v Morris [1966] 2 All ER 644 and R v Penfold and Penfold (1979) 71 Cr App R 4.

CIRCUMSTANCES OF THE PRISONERS

The prisoner, Morobet Awui Koma, is 20 years of age. He has no criminal history. He lives in Port Moresby with his family. He was educated to grade six and has been unemployed since finishing his schooling.

The prisoner, Peter Kevin, is 18 years of age. He has no criminal history. He lives in Port Moresby with his family, his mother has been in court. He also was educated to grade six and has been unemployed since finishing his schooling.

Morobet Awui Koma has been in custody for seven months, three weeks since his arrest.

Peter Kevin has been in custody for seven months, one week since his arrest.

CULPABILITY

The essential starting point in determining punishment is to fix the culpability or blameworthiness of the prisoner. In this case, the culpability of the prisoners is clearly substantially less than that of the main perpetrator. By stating that proposition, it does not follow that the prisoners have little culpability. They willingly participated by their presence and through their role as "watchmen" in what they perceived as a serious and dangerous offence, that is, robbery of a private dwelling house at night by a person who was armed.

Their culpability can be fixed on two considerations. Their role was of assistance and their presence assumed encouragement.

The severe consequences of the enterprise were not, however, willed by them.

FURTHER SENTENCING CONSIDERATIONS

(1) Plea of guilty — as I indicated, both prisoners changed their plea at the end of the State’s case. Considerable evidence had been called for the State and the prisoners are not entitled any discount on the basis that by their plea, they have saved the resources of the justice administration. Their pleas, however, can be considered as an indicator of remorse.

(2) Public deterrence — it is an unfortunate observation to make that there are many examples of cases of similar features as this where there are groups committing crimes and where the culpability as between those in the group is differing.

It is also a fact that sentencers have often observed that punishment should be greater for group activity. This is no doubt based on the acceptance of the proposition that there is always strength in numbers and sentences should be aimed at deterring such group activities.

I am not convinced, however, that a loading of sentence on such a premise is always apposite and in a case such as this where somewhat complex, legal elements pertain is not conducive to such an uncomplicated approach. The very fact that detection has occurred and that punishment will follow serves the concept of deterrence in this case, and I would suggest, many similar cases.

(3) Discretion — rehabilitation, deterrence, punishment and retribution — these are all matters, together with others which a sentencer will weigh in assessing punishment in a particular case. It is important to reflect on the objectives of the criminal justice system, its purposes and its goals. In the case of R v Davey [1980] FCA 134; [1980] 2 A Crim R 254, the Appeal Court of the Federal Court had before it, an appeal by the Crown, a sentence of three years for manslaughter which had been suspended on various conditions. The leading judgment is that of Muirhead J where among other matters, his Honour had this to say on the exercise of judicial discretion (although in the context of appeals on sentence by the Crown, what follows is entirely pertinent to the general issues I have referred to above).

At 260:

"One finds in the cases referred to, references to ‘moral sense of the community’, to ‘condign punishment’ and references which appear to draw a contrast between ‘rehabilitation’ of an offender and ‘deterrence’. There are references derived from R v Radich [1954] NZLR 86 to sentences which are ‘weakly merciful’. There has, of course, been much debate academic and judicial as to the purposes of punishment, the effectiveness or otherwise of deterrence, the necessity for punishment, the concept of retribution. One would glean from some sources that there are two conflicting responsibilities vested in a sentencing judge — one owed to the prisoner, to rehabilitate him, to treat him gently as it were — the other owned to society, to punish, to levy retribution, to deter. And the cases I have referred to suggest that error was demonstrated because of the emphasis on rehabilitation rather than punishment or deterrence. It is important that the law does not become confused in its objective. The purpose of the criminal law is to bring wrongdoers to justice for the protection of the community. First and foremost, it is the protection of the community a sentencing judge must bear in mind (R v Cuthbert (1967) 86 WN (Pt 1) NSW 272, per Herron CJ at 274). There are occasions when a judge determines he can only extend that protection by severe punishment; there are other situations when he will reach the view that probation, suspension of sentence or community work orders are appropriate, not because they will be less unpleasant for the prisoner but because they may be productive of reformation which offers the greatest protection to society. I am afraid, and I speak for myself, that the concept of the penitent prisoner emerging from the penitentiary has rare validity. A sentencing judge has to bear in mind the realities of prisons, of what is learned there, of the associations there formed, of the effect on many people. Nor should he lose sight of the fact that the main problem of the police and the community is the recidivist. If in the proper exercise of his discretion he can devise a sentence which will minimise the risk that an individual will re-offend then to that extent society is protected. And I would add that there is no person so likely to become, not only bewildered, but embittered, as a person who has been sent back to his work and his family under probation by the judge he has seen considering his case, only to find himself re-arrested to serve a custodial sentence imposed elsewhere, a sentence he will not regard as just. Respect for the law is very much at risk under such circumstances.

Where the issues are not only the protection of the community but the liberty of the subject it seems to me that the assessment of the trial judge who has seen and so often heard the prisoner, who has had the opportunity of determining his probable responses in the future should be set aside only when manifest error is well demonstrated. It must not be forgotten that in this area judicial views on the appropriate sentence are almost bound to be a variance in any event.

In R v Kear (1978) 2 Crim LJ 40, Wells J, a judge of considerable experience in criminal matters, dealt in detail with the principles of sentencing and his remarks were then obviously addressed to an anxious public. But he referred in so doing to the remarks of Napier CJ in Webb v O’Sullivan [1952] SASR 65 at 66 which he stated represented the true position in law:

‘The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.’"

I find myself in complete agreement with these observations and conclusions.

RANGE

At my request, both Mr Koaru for the prisoners and Mr Boyce for the State, made fair and thoughtful submissions on the range of sentences applicable in circumstances pertinent to this case. Any range of sentences is not the end of a sentencer’s consideration of punishment, but it is an undoubted aid to the proper exercise of discretion. It would be fair to both counsel to set that range in the vicinity of three to six years, with an allowance always being made for individual factors such as the age of the offenders, the seriousness of the crime and the degree of participation.

SENTENCE

In determining the sentence, I have been concerned with the age of the offenders and the fact that neither has previously been in trouble with the law. I am also concerned with the seriousness of the offence they were involved in and the need to punish them and deter them from progressing towards a life of crime in the future.

I believe that my joint aims can be met in the sentence I impose. The appropriate sentence and the sentence which I now pass on them is three years in hard labour. Eighteen months of that sentence is suspended on the condition that they agree to enter into a bond to be of good behaviour for five years.

My suspension of part of their sentence is designed primarily with the dual interest of the community and their rehabilitation in mind. In R v Davey (at 262) Muirhead J encapsulates in a far better way than I can, my own thinking in this regard and I respectfully adopt what his Honour says:

"In my view it is erroneous to treat the suspension of a sentence of imprisonment as merely an exercise in leniency. Such an order is made in the community interest and is generally designed to prevent re-offending — which a prison sentence, standing alone, seldom does."

As to the punitive element of the suspended sentence, see also the judgment of Miles J (as he then was) in Acting Public Prosecutor v Clement Maki and Tom Kasen (unreported, Supreme Court, SC No 205, 7 August 1981).

My formal order, taking into account the time already spent in custody is:

1. Three years in hard labour.

2. Eighteen months suspended on the prisoners entering into a bond to be of good behaviour for five years.

3. Of the 18 months to serve, in respect to Morobet Awui Koma — seven months, three weeks deducted leaving 11 months, one week to serve and in respect of Peter Kevin — seven months, one week deducted leaving 11 months, three weeks left to serve.

Orders accordingly

_______________________

Lawyer for the State: V Noka, Acting Public Prosecutor.
Lawyer for the accused: E Kariko, Public Solicitor.