State v Kairu [2002] PGNC 104; N2242 (28 June 2002)

N2242

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT KAVIENG]

THE STATE

-v-

BEN KAIRU

of Patapatagai village

Kavieng: DAVANI, J.
2002: 27, 28 June

CRIMINAL LAW – Sentence – Murder – Not guilty plea – conviction – Repeated assaults using hands and feet on 60 year old man – death as a result – No prior conviction – customary compensation considered and refused – Criminal Code ss. 300(1) a: Criminal Law (Compensation) Act of 1999 s.2

Cases cited;
Antap Yala v the State (unreported Supreme Court Judgment dated 3/5/96)
Maria Pelta Pung v the State (unreported Supreme Court Judgment dated 8/11/96)
Kaugral Kuri v the State (unreported Supreme Court Judgment dated 8/11/96)
Maxom Sumba v the State (unreported Supreme Court Judgment dated 31/5/96)
Nancy Paul Papeng v the State (unreported Supreme Court Judgment of 1996)
Opal Apili v the State (unreported Supreme Court Judgment dated 31/5/96)
Wampai Wampa v the State (unreported Supreme Court Judgment 31/5/96)

Counsel:
L. Rangan for State.
S. Madana for Accused.

DECISION

(Sentence)

28 June 2002

DAVANI, J.: On 27 June 2002, the court found the accused Ben Kairu (the ‘Prisoner’) guilty of the murder of one Robin Watlasai contrary to s. 300(1)(a) of the Criminal Code Act chapter 262 (the ‘Act’). The maximum punishment of this offence is life imprisonment.

This court in sentencing takes note of the fact that the incident that led to Robin Watlasai’s death was in relation to a land dispute and that the accused and the victim Robin are all related. The court was not told of the circumstances surrounding this dispute but it is apparent from the facts proven, that the Prisoner chose to exercise violence to resolve this dispute rather than resort to existing non-violent avenues. The Prisoner acted in concert with his now deceased brother.

Before I refer to the factors which mitigate or aggravate the offence, I will discuss the range of sentences for murder. In the State v Laura No. 2 [1988-89] PNGLR 98, Kidu CJ said that on a plea of guilty to murder with no special aggravating factors, a sentence of six years may be appropriate.

There, Sir Buri said that a sentence of more than 6 years may be appropriate in a case with special mitigating factors or a lesser sentence where there are special mitigating factors like youthfulness or advantage of the accused. On a plea of not guilty to murder, a sentence in the range of 8 – 10 years or more in a case where there are aggravating factors. It is also noted that a manslaughter sentence cannot be higher than a murder sentence unless a manslaughter case is more worse than murder case, and this has occurred as will be seen below.

There has been an increasing recognition of the need to increase the range of sentences for murder and manslaughter cases. The Supreme Court case of Antap Yala v the State Unreported Supreme Court Judgment of Amet CJ, Salika J and Injia J dated 31 May 1996 serves as a good example. In that case, the court upheld a sentence of 10 years for manslaughter imposed by the National Court. The brief facts were that, a man slashed his wife’s neck following a domestic argument. Similar manslaughter cases have attracted sentences in the range of 6 to 8 years; (see SCR 56/94 Maria Pelta Pung v the State, Unreported Supreme Court judgment dated 8 November 1996 (8 years). SCR No. 11/95 Kaugral Kuri v the State, Unreported Supreme Court Judgment dated 8 November 1996 (7 years)). In murder plea cases, sentences have ranged between 9 to 15 years; (see SCR 44/95 Maxom Sumba v the State Unreported Supreme Court Judgment dated 29/11/96 (9 years). SCR 22/94, Opal Apili v the State Unreported Supreme Court Judgment dated 31/5/96; CRA 61/94 Nancy Paul Papeng v the State Unreported Supreme Court Judgment handed down in 1996 (12 years), SCRA No. 41/94 Wampai Wampa v the State Unreported Supreme Court Judgment dated 31/5/96 (15 years)).

In contested murder cases, sentences have ranged between 12 years to life imprisonment; most common ranges being 15 to 18 years. In exceptional cases however, that is cases with special mitigating factors, sentences have ranged between 8 to 12 years; (see State v Jack Mek N1557 (1997); (8 years) CRA 61/94 Nancy Paul Papeng v the State Unreported Supreme Court Judgment handed down in 1996 (12 years) in the years following the State v Laura (No. 2)).

Prisoner’s counsel submitted as mitigating factors that the prisoner, a 40-year-old man has four grown children, he is running a successful business, and this is his first offence. The court considers, that being a first offender is a mitigating factor.

That is the only factor in his favour. The other factors submitted by counsel are not mitigating factors.

The aggravating features of this case are that this was an unprovoked attack upon a defenceless old man who was mercilessly attacked by those related to him in his own home. I note also State’s submission of the breach of the victim’s rights to privacy and constitutional rights and find these to be aggravating factors as well. This is because the Prisoner entered the victim’s home without his consent, then attacked him for no reason at all. The Prisoner paid no regard or refused or neglected to recognize the fact that this was the victim’s home and that he would have to respect that.

Another aggravating factor is that there were other means of resolving this dispute albeit customarily but the prisoner chose to assault the victim than settle or talk. The assaults involved kicking, punching a 60-year-old man and putting him through terrible agony and terrorizing his family.

The prisoner, on allocatus, suggested payment of customary compensation and asks the court to consider that. The court must consider this and now does so as s.2 of the Criminal Law (Compensation) Act of 1991 gives the court that alternative. There was no evidence from the prisoner that this aspect was progressed after the commission of the offence on 3 February 1998 and after the trial on 12th April 2002. It has been 4 years since.

The primary decision the court needs to make is "whether in the circumstances of this case, a compensation order should be ordered". (see pg 633 of Chalmers, Weisbrot, Injia and Andrew "Criminal Law and Practice of Papua New Guinea"; The State v Peter Kose Wena [1993] PNGLR 168).

The Prisoner, on requesting to pay compensation, submits, the victim’s son has considered this. However, I am informed by counsel for the State that the State has not received any instructions to this effect. Nor has the court received any evidence that customary compensation is a matter the parties have pursued. Defence has left this till the eve of sentencing, which is most unsatisfactory. Defence has also not requested the court for a Means Assessment Report which may imply that customary compensation was never a consideration.

The court will also not accept the prisoner’s contentions that the victim’s family have agreed to accept customary compensation as the prisoner may be misleading the court as he misled the court at trial. This was a trial putting the court through the task of having to hear evidence, the shifting of evidence then the later finding of guilt.

The court finds that by Defence Counsel and the Prisoner raising this on the eve of sentencing, is most unsatisfactory, considering the State is not aware of this. In fact, Defence Counsel was obtaining instructions from the Prisoner whilst he was in the dock. This therefore raises doubts as to whether the victim’s family is or will be amenable to this arrangement. In any event, the Prisoner may have been led to believe that compensation will result in penalty being reduced. That is an incorrect perception. In those circumstances, the court will not accept those submissions.

The Prisoner by his actions in meting cruel justice and punishment on the victim, must answer for his actions under the laws of this country.

The court will, based on the evidence and decided cases, order a term of imprisonment between 12 and 15 years.

The court will sentence the prisoner to 15 years imprisonment.

Bail monies of K200.00 will be refunded to the Prisoner.
_____________________________________________________________________
Lawyer for the Accused : Madana’s Lawyers
Lawyer for the State : Public Prosecutor