State v Hino [2002] PGNC 113; N2218 (18 April 2002)

N2218

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 484 OF 2002

THE STATE

-V-

STEVEN HINO

POPONDETTA : JALINA, J.
15TH & 18TH APRIL 2002

CRIMINAL LAW – Sentence –Murder – Death from stabbing with bush knife in the chest area – Plea of guilty – Need to deter violent deaths – Custodial Sentence appropriate - Criminal Code s.300.

Counsel:

Ms. M. Boni for the State
Mr. P. N’dranoh for the Prisoner

18th April 2002

JALINA, J. This is another case where the Court had no option but to use Counsel’s file to avoid the prisoner waiting in custody for a long time for his trial.

In this case the prisoner pleaded guilty to murdering one Lister Sika at Ebei Mountain, Kokoda in the Oro Province on 29th December 2001.

Brief facts put to the Court by the State Prosecutor for purposes of arraignment show that on the day in question the deceased had apparently left his Ebei Village and travelled to Amanda Village on his bicycle in search for pig meat. The prisoner and his friends were at Amanda Village which his own village.

Upon being told at Amanda Village that they did not have any pigs for sale, the deceased went on to another village called Sawaga. In the meantime the prisoner and his friends whilst armed with a knife went to the road leading to Ebei Village and laid in ambush for the deceased to return. When the deceased finally returned, the prisoner and his two friends attacked the deceased whereby one of them held him and one stabbed him on his chest. The knife penetrated the deceased’s body. They then took his money and fled. He died soon after from loss of blood.

The Post Mortem Report of Dr. Minal Marinki show, in addition to lacerations and blood clots in his facial area and nostrils, a penetrating wound measuring 2 cm x 2 cm to the left upper lobe of the lungs. The chest cavity was filled with massive blood clots. The deceased was found by the doctor to have died from massive hemopneumothorax from penetrating chest wounds.

The maximum penalty under s.300 (1) of the Criminal Code for murder is life imprisonment subject to the Court’s discretion to impose a less sentence under s.19 of the code.

As I have said during this circuit when sentencing others for this offence that such lesser sentence have been a term of years. For instance, in Simbe –v- The State [1994] PNGLR 38, my sentence of 14 years imprisonment was upheld by the Supreme Court where the appellant found the deceased trying to entice his wife into having sex with him and he attacked the deceased with a bush knife and killed him instantly when he virtually severed the deceased’s rib cage.

In that case the Supreme Court upheld my sentence of 14 years in spite of the appellant’s plea of guilty and the presence of de facto provocation. In the case now before me there is no element of de facto provocation let alone any fight with weapons between the deceased and the prisoner and his friends. It would seem that they attacked an innocent, unarmed, unsuspecting and happy man in cold blood.

In his statement on the allocutus the prisoner in seeking leniency through good behaviour bond or shorter term has expressed remorse not only to the Court and the community but also to the deceased’s family. His lawyer, Mr. N’dranoh has also sought a lenient sentence by putting to me for consideration mitigating factors such as his plea of guilty, his expression of remorse, this being his first time to commit crime and his young age at 16 years. Mr. N’dranoh submitted that because of his young age or because he is a juvenile he be sent to one of the Boys Towns if a custodial sentence was to be imposed.

With regard to his plea for a non-custodial sentence based on his age, let me state at the outset that murder being one of the most serious of homicide cases, releasing someone on good behaviour bond is out of the question. I consider that I would be doing injustice to the deceased’s relatives if I did. Furthermore, the prisoner does not appear to have considered himself to be too young when he set out and lay in ambush and took the life prematurely of this unarmed, peace loving and unsuspected young man.

In my view custodial sentence must be imposed as a deterrent to the prisoner as well as other young people that taking someone’s life in the way it has happened here is simply unacceptable and is condemned by peace loving members of our communities.

As I indicated above, submission has been made by Defence Counsel that any custodial sentence I imposed be ordered to be served in one of the rehabilitation centres like Wewak Boys Town.

To start with, Mr. N’dranoh has not told me if they have any vacancies. It was his duty in the interest of his client to have checked with the relevant authorities who run Wewak Boys Town or other rehabilitation centres in the country. That is if I accept that the prisoner is aged 16 years and is therefore a juvenile. But no clear proof has been put to me as to his age. In a very serious case as murder, I cannot just release someone to a juvenile centre just because Defence Counsel asserts him to be 16 years of age. There must be proper proof as I have said.

I have observed him to determine his age pursuant to the Court’s power to estimate a person’s age under s.63 of the Evidence Act Ch 48 in the absence of evidence. From his answer to Q.8 of the Record of Interview conducted with him by Constable Begola on 2nd March 2001, he said that he was 19 years old. I would estimate his age to be between 20 and 21 years now and is therefore an adult. Consequently, the need for him to be sent to a juvenile detention and rehabilitation centre does not arise.

In all the circumstances of this case and taking into account the mitigating factors put to me by Defence Counsel but bearing in mind that the attack was unprovoked and that the prisoner and his colleagues have prematurely taken the life of this unarmed and unsuspecting man as to his premature death and manner of death, I consider a sentence of 15 years imprisonment which I hope serves as a deterrent to himself and others in future be imposed. I order that that sentence be served at Biru Corrective Institution in hard labour.

I deduct from that sentence the 1 year, 2 months, 2 weeks and 5 days he has spent in custody. That leaves a sentence of 13 years, 9 months, 1 week and 2 days in hard labour.

____________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Prisoner: Public Solicitor