N2029

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1160 of 1998

THE STATE

v.

EDONI RAVU

LAE: GAVARA-NANU, J
2000 : November 6 & 7

Criminal Law – Sentence – Plea of Guilty to murder – Principal Offender under S.7 of the Criminal Code, Youth aged 15 years – First Offender – Sentence should not be crushing one – Good Behaviour Bond – Sentence partly suspended.

Cases cited:
Kalabus v The State [1988] PNGLR 193
Gimble v The State [1988-89] PNGLR 271
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Don Hale SCRA 33 of 1996
Passingan v Beaton [1971-72] PNGLR 206

Counsel:
N. Miviri for the State
J. Kaumi for the Accused

SENTENCE

GAVARA-NANU, J:	The prisoner is a young man of 15 years old. He has pleaded guilty to the charge of murder of one Daniel Luke on 22nd June 198 in Lae. The charge is laid under S. 300 (1) (b) of the Criminal Code.

Brief facts are, on 22nd June, 1998, at about 7.00 pm, a group of young boys decided to commit robbery in a school at Ampo in Lae. The prisoner was not with those boys when the plan was made to do the robbery. He was in another place when that group of boys went and told him to join them. He was not told why they wanted him to join them. He nonetheless followed the group.

When they arrived at the school in Ampo, the prisoner was told by others to stay outside of the fence and was to help carry the stolen things from the robbery that was when he realised that they were there to rob the school. The others went into the school to rob a house. Not long after, one of the boys that went to rob the house shot the deceased. When the prisoner heard the gun shot, he ran away. The prisoner was arrested by the police about a week later on 30th June 1998 and has been in custody since.

At the time of the offence, the prisoner was living with his brother, both of his parents having died. He has only Grade 2 education. In the record of interview, he said, it was difficult for him to find food and money, that is why he followed the others and got himself into trouble, when he was told of the plan to rob the school at Ampo.

The prisoner was not the person who shot the deceased but he is nonetheless a principal offender under Section 7 of the Criminal Code as an aider.

The prisoner has a prior conviction for stealing so this is not his first offence, albeit not of the same gravity as this offence.

Murder is a very serious crime. This is reflected by the maximum punishment prescribed for it by the Criminal Code which is imprisonment for life.

The court must however treat the case on its own merits and arrive at the appropriate punishment for the prisoner.

The prisoner as I said is young and is basically uneducated. He has pleaded guilty to the charge. This has saved a lot of time and expenses for the State in not having to produce 19 State witnesses. The prisoner has been honest about his role in the crime from the day he was interviewed by the police. He freely admitted his part. He was here because of his admission of the offence. None of the State witnesses identified him. This would have been a difficult case for the State to prove. He has also shown genuine remorse from the time of his interview with the police. These are relevant mitigating factors and in my view they justify leniency towards the prisoner. See Kalabus v The State [1988] PNGLR 193, where Kidu CJ, at p.197, said the earlier the expression of remorse, the more favourable it will be for the accused or (the prisoner).

In determining the appropriate punishment for the prisoner, I must also bear in mind that this offence was committed during robbery of a house at night where violence and terror were used on the victims. Firearms, flare gun and a bush knife were used as weapons. There is evidence that some of the people who were with the deceased were cut with the bush knife. The victim was unarmed and so were those with him. It was an unprovoked attack.

I find the case of the State v Laura (No.2) [1988-89] PNGLR 98 helpful in deciding what should be the appropriate punishment for the prisoner before me. In that case, Kidu CJ at p.99 said, "I consider that a murder case with no special aggravating factors where the accused pleads guilty should attract sentence of six years. Where a sentence of less than six years is imposed, I believe that it should only be in a case where there are special mitigating factors such as youthfulness of the accused (for example, 14 or 15 years old) or the very advanced age of the accused. In a contested case, it should be between 8 to 12 years and more in a case where aggravating factors are shown by the evidence. Such factors are too numerous to list here and must be determined on a case-to-case basis. .. In this case, there are no special mitigating factors. In fact, the prisoner has shown no remorse nor expressed regret for what he did. Although he cannot be regarded as cold-blooded person, his disregard for the life be ended does not help him favourably in considering what his sentence should be. Be that as it may he is fortunate that I find no special aggravating circumstances against him. He is a young man and at the time he committed this offence, he was 17. He is now over 17 and in my observation is 18 or nearly so. I take his youth into account, especially because he has not been in trouble previously for any violent crime". His Honour imposed a sentence of 8 years IHL.

It is now over 10 years since The State v Laura (No.2) was decided. Violent crimes such as arm robbery, rape, murder and so on are now very prevalent. However, principles relating to the duty of the court to show leniency in a case where mitigating factors are present, apply now as they did 10 years ago.

The prisoner is 15 years now. He was only 13 years old or less when this offence was committed. I have no doubt that this is the reason why he told the police during his interview with them that he was scared because the bigger boys who were involved in this crime threatened to kill him, if he talked out.

He was only a young boy who was led astray by his bigger companions. He was not a ringleader. He ran away as soon as he heard the gunshots. He had not received anything or benefited in anyway from the robbery.

He has one prior conviction for stealing in 1997. The circumstances in which that offence was committed are not known but his lawyer says it was simple stealing and was sent to jail for 6 weeks IHL by a Grade 5 Court. As I said, I do not know the circumstances of that case, I will therefore attach little weight to it.

There are special mitigating factors in this case and considering the age of the prisoner, the sentence must not be a ‘crushing’ one, see Passingan v Beatson [1971-72] PNGLR 206 at p.204.

Considering all the circumstances of this case and taking The State v Laura (No.2) as a guide, I consider sentence of 5 years as sufficient. He has been in custody since 30th June 1998. That is 2 years 4 months 1 week. I deduct that period. The balance of sentence is 2 years 7 months and 3 weeks. I suspend 12 months of that and order that he enter into his own recognizance without surety for K100-00 and is to keep peace and be of Good Behaviour for a period of 2 years.

He will only serve 1 year 7 months and 3 weeks IHL. His 2 years Good Behaviour Bond will start after he serves his sentence. I recommend that he serve his term of imprisonment in Erap Boy town.
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Lawyer for the State:		Public Prosecutor
Lawyer for the Accused:	Public Solicitor