State v Ketu (No 2) [2007] PGNC 153; N3394 (17 October 2007)

N3394

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1511 OF 2006

THE STATE

V

JIMMY KETU (No.2)

Tabubil: Kandakasi, J.
2006: 17th November
2007: 2nd October

DECISION ON SENTENCE

CRIMINAL LAW- Sentence – Murder – Conviction after trial – Use of bush knife to wound head and hands resulting in death - Customary compensation paid – First time offender – Not worse case of murder - Sentence of 22 years imposed.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Appropriate sentencing guideline – Subsequent Supreme Court decision in obiter dictum varying earlier decision of the Supreme Court – Court obliged to follow guidelines set by decision of the Supreme Court directly on point and may take into account the obiter dictum observations but not bound to follow.

Cases Cited:
Joseph Enn v The State (2004) SC738.
Manu Kovi v. The State (2005) SC 789.
The State v. Vincent Simbago (26/09/05) N2954
The State v. Laura (No. 2) [1988-89] PNGLR 98.
Lawrence Simbe v. The State [1994] PNGLR 38.
Simon Kama v. The State, (2004) SC740.
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (2004) SC741.
Kepa Wanege v. The State (2004) SC742.
The State v. Kiri Kirihau Harisu (2006) N3168
The State v. Jimmy Morgan (2001) N2171

Counsel:
D. Mark, for the State.
P. Kapi, for the Prisoner.

17 October, 2007

1. KANDAKASI J: This Court found you guilty on one charge of murder contrary to s.300 (1) (a) of the Criminal Code after a two days trial in November of last year. The delay in coming to announce this Court’s decision is due mainly to circuit arrangements.

The Relevant Facts

2. The relevant facts are set out in the decision on your verdict handed down on 17th November 2006. For the purposes of sentencing, the facts briefly are that, on 8th November 2005, some time between 6:00 and 8:00 pm you were under your house at Menumgrup, Ningerum, in this Province, drinking beer with a brother of yours, Ivan. Ivan came with eight cans of beer. Out of the eight cans of beer, you drank four of them. That was in addition to four cans of beer you had earlier drank. At the time, there were a lot of other boys also consuming alcohol. While you were under your house drinking your beer, you heard your younger brother, Gordon, fighting with his two wives up in the house. You also heard him telling his wives to pack up and leave the house.

3. You went up to the house and tried to stop your brother from fighting his wives and force them to pack up and leave. Your brother did not accept your intervention. He became angry and threw a punch at you and you ended up in an argument and or a fight with your brother. Your brother chased you and you ran into your neighbour, Simon Hun’s house. While you were at your neighbour’s house, your brother challenged you to a fight and called you a woman. That made you angry. You therefore, armed yourself with a bush knife and returned to your house where Gordon was, with a view to cutting and causing harm to your brother. As you entered the house through the door, you saw Gordon and Ivan and swung the bush knife to cut Gordon. However, Ivan managed to get Gordon out of the house.

4. Soon after that, a Orowa Singu who had been living in your house for a short while with the deceased at your invitation for them to help build your house, came to where you were and you wildly swung the bush knife at him. Fortunately, he managed to jump onto the beam of the house and escaped any injuries. Not long and the deceased turned up and you cut him on his left arm and head. Soon thereafter, the people who were there, rushed the deceased to the hospital for appropriate treatment. Unfortunately, the next day, the hospital pronounced the death of the deceased.

5. The medical evidence states that, the deceased sustained serious bush knife wound injuries to his head, an injury to his left wrist and a relatively superficial injury to his shoulder and died from massive blunt head trauma. The injury to the head was the most serious, described as "massive right-sided frontal-temporal-parietal scalp laceration with underlying linear skull fracture measuring at least 15 cm in length" with "disrupted brain matter". There was bleeding into the brain. The medical doctors tried their very best to prevent the bleeding and save the deceased without much luck.

Allocutus

6. After having found you guilty on the charge of murder, the Court asked you to address it on sentence. You decided to leave it all to your lawyer. So the Court did not hear directly from you regarding your sentence.

7. Your lawyer informed the Court that, you were then thirty years old, now about thirty one. Education wise, you have reached grade ten high school education level. At the time of committing the offence, you were employed as a security guard. You are married with two children. You come from Menumgrup Village, Ningerum District of this Province. You are the seventh born in a family of eight brothers and four sisters. Your parents are still alive and live a subsistence style dwelling. Following your commission of the offence police arrested you and kept you in custody for ten months before being released on a cash bail of K1,000.00 and surety of K500.00.

8. Further, your lawyer informed the Court that you and your relatives paid customary compensation of K41,000.00 over to the deceased relatives. You personally contributed K10,000.00 of the K41,000.00 compensation.

Submissions

9. Your lawyer then proceeded to make submissions on your behalf. In your mitigation, he urged the Court to note that, you have no prior convictions. This means, you have not been in trouble with the law before. Hence, this is your first ever offence. Your lawyer also urged the Court to note that, this was not a pre-planned killing. He then drew to the Court’s attention to decisions of the Supreme Court in Joseph Enn v The State,[1] and Manu Kovi v. The State,[2] and submitted that your case falls in the third category under the Manu Kovi case. That category attracts a sentence between 20 and 30 years. Your lawyer submitted that the Court should impose a sentence that falls in that range.

10. The State pointed out that, your conviction came after a trial and that the sentence should reflect that fact. Otherwise, counsel for the State agreed with the submissions of your lawyer on the relevant case law and sentencing range.

11. Given these submissions, the Court now needs to determine an appropriate sentence for you. In order to properly do that, it is necessary to have regard to the offence you committed and the penalty prescribed by Parliament and what the Supreme Court has said about sentencing in murder cases. Accordingly, we turn to a consideration of the offence, sentencing guidelines, sentencing trend and tariffs.

The Offence, Sentencing Guidelines, Trends and Tariffs

12. Section 300 (1) of the Criminal Code prescribes the offence of murder and its penalty of life imprisonment, subject to s. 19 of the Code. In the exercise of the discretion vested in the Courts by s. 19, the Courts have been imposing sentences lower than life imprisonment in most cases. As I noted elsewhere,[3] the decision in The State v. Laura (No. 2),[4] initially outlined some guidelines for sentencing in murder cases. Later, the Supreme Court, in Lawrance Simbe v. The State,[5] endorsed and improved on those guidelines.

13. Recently, the Supreme Court in its judgment in Simon Kama v. The State,[6] reviewed those guidelines and sentencing trends in murder cases. It then made the point that, Parliament having considered all things, provided for three categories of homicide cases under the Code. Wilful murder under s.299 for a person killing with an intention to kill the deceased or another person, murder under s. 300 for a person killing another person out of an intention to do grievous bodily harm. Then finally, killings without either an intention to kill or an intention to do grievous bodily harm, as manslaughter under s. 302. As such, it was not right for the courts to further categorize homicide cases. It then proceeded to review the approach to sentencing and the suggested tariffs and said:

"... we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) and Simbe v The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the ranges of seventeen (17) to thirty (30) years;

(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d) On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence [that] may warrant a sentence lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons."

14. The Supreme Court endorsed these guidelines and views in its other decisions in Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State[7] and Kepa Wanege v. The State.[8]

15. In 2005, the Supreme Court yet again, in obiter dictum reviewed the sentencing guidelines in its decision in the Manu Kovi case. That decision agreed with the decision in the Simon Kama case that the time had come for an increase in the penalties and recommended that sentences in murder cases be increased as follows:

"1. In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a sentence of 16 – 20 years imprisonment.

3. In a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20 – 30 years.

4. In contested or uncontested cases, the maximum of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons substances; summary execution style killings; killings in full view of public without regard for the safety and lives of others, etc. These are cases where there are no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime."

16. As I observed in The State v. Kiri Kirihau Harisu (2006) N3168, it is obvious to me that, unlike the last category, the decision in the Manu Kovi case does not provide a clear guide as to the kind of "ordinary" or "special aggravating" and mitigation factors it is talking about in each of the other categories. The position was clear under the Laura (No. 2) and the Lawrance Simbe v The State[9] cases as modified by the Simon Kama decision. In the circumstances, I find that the Manu Kovi decision with respect fails to provide a clear guideline. Besides, it is only an obiter dictum because the case before the Supreme Court in that case was a case of manslaughter and not murder. I now note also that the Supreme Court decision in Manu Kovi was wrong in coming up with the fourth category because the words "unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons substances; summary execution style killings" speak of a case of wilful murder as oppose to a murder case. On careful reconsideration, I find that the case that is directly on point, relevant and applicable is the decision in the Simon Kama case and I should allow myself to be guided by the decision in that case. However, to be consistent with what I did in the Kiri Kirihau Harisu case, I will use both the Manu Kovi and the Simon Kama decisions but more so the decision in Simon Kama’s case to try and identify the category under which your case falls and approach your sentence accordingly.

Your Sentence

17. As already noted, your learned counsel submitted that, your case falls under the third category under Manu Kovi case which attracts a sentence between, 20 – 30 years. Counsel then submitted that a sentence of 23 years would be appropriate in the particular circumstances of your case.

18. Into which category your case falls under is dependant on the particular factors in your aggravation and mitigation. In order to determine under which category your case falls, it is necessary to take into account your family background as outlined by your lawyer in his submission, which I do. I then need to take into account the factors both for and against you. I do so, starting with the factors in aggravation first.

19. First, I note that, you were under the influence of alcohol at the time of committing the offence. As I said in The State v. Jimmy Morgan (2001) N2171:

"Drunk and disorderly in public places and more particularly in residential areas both in the cities and towns or villages is on the increase and more prevalent. The law does not provide that being drunk is an excuse for any crime. In the past, the Courts have made it clear that people who get drunk and commit criminal offences can not escape being appropriately dealt with:
see for example John Elipa Kalabus v. The State [1988] PNGLR 193."

20. You chose to consume alcohol and consequently, be under the influence of alcohol. Once under the influence of alcohol, you acted under its influence so much so that, you failed to see that, you could easily injure or kill your brother, Gordon or any of the persons that were there at the time.

21. Secondly, you got yourself armed with a bush knife from your neighbour’s house. Your brother, Gordon, who you wanted to attack with the bush knife was not armed. Yet, you went and got yourself armed with the bush knife.

22. Thirdly, you armed yourself with the bush knife with an intent to cause your brother, Gordon grievous bodily harm if not kill him. The Courts have repeatedly said that, bush knives are fast becoming dangerous murder weapons. As such, those who are found guilty of using such a weapon to commit an offence must be dealt with appropriately to help deter the offenders and others from using such weapons. In your case, you attacked the deceased first with a bush knife. You allowed your anger to overtake you instead of cooling it off and come to your sense that, there was nothing for you to fight over and more so, use a bush knife against your own blood brother. You started to attack him with the bush knife. Fortunately for your brother, he successfully escaped being cut by you. After your brother had escaped, you continue to swing the bush knife at another person who also managed to escape any injuries. Finally, you attacked the deceased with the bush knife causing serious injuries to his body. The deceased died the next day despite desperate efforts by doctors to save him.

23. Fourthly, I note that, you committed an offence that is prevalent. The senseless taking away of human life is on the increase throughout the country and there is a need for a strong and deterrent sentence to stop you as the offender and other like minded persons from committing these kinds of offences. I sincerely hope that, the kind of sentences the Supreme Court has suggested and are being imposed by the Courts now, will go toward a deterrence of you and other like minded persons from taking away the lives of other people regardless of whatever the reason. Calling ourselves a Christian nation seem to be only a claim in name, when there is far to many unnecessary and uncalled for killings all around us.

24. Further, you denied the charge against you. That forced the State to call witnesses and the Court to take much more time than necessary to come to your conviction. This obviously meant more costs to the State. You had no good basis to put the State to that task. Whilst it is a right under our Constitution for an accused to put the State to the task of establishing a charge against him or her, it does not help them to do that merely for the sake of taking the State to that task because, it does matter when it comes to determining sentence, whether conviction was on a guilty plea or after a trial.

25. Finally, I note that, you have not expressed any remorse over the untimely ending and taking away of the life of an innocent man. This is despite having paid K10,000.00 to the deceased relatives in addition to your relatives contribution. So it seems you remain unrepentant.

26. Now turning to the factors in your favour, I note that, this is your first ever criminal offence. That means you have not been in trouble with the law before. Usually, the law allows for leniency in sentencing first time offenders like you.

27. The only other factor that might operate in your favour is the fact that, you paid compensation in the sum of K41,000.00. Of that, you contributed K10,000.00. That is over and above the maximum provided for under the Criminal Law (Compensation) Act 1991. The payment of compensation only mitigates the sentence you should receive. It does not exonerate you from your full criminal responsibility for the offence you committed.

45. Weighing the factors for and against you, I note that the factors in aggravation far outweigh those in your mitigation. Your lawyer submitted that, your case falls in the third category under the Manu Kovi case. Again as I note in the Kiri Kirihau Harisu case, the Supreme Court has not provided any specific guideline as it did under the fourth category to determine what kinds of cases falls under the third category. However, the decision in Simon Kama provides a clear guideline, which is a carryover from past authorities. As I note, it is the authority on point and most relevant and applicable in murder cases. Accordingly, applying those guidelines I find that, your case falls in category (e) of those guidelines, which has a sentencing range of 22 – 40 years. I accept your lawyer’s submission with the endorsement of the State that, your sentence should be somewhere in the range of 20 – 30 years imprisonment. Considering the particular circumstances of your case, I consider a sentence of 22 years appropriate and I impose that sentence against you.

46. Of the head sentence of twenty two years, I order a deduction of the ten months you have already spent in custody awaiting your trial. I also order a deduction of the period of ten months and fifteen days you have already spent in custody whilst awaiting your sentence. That should leave you with the balance of twenty years, three months, one week and six days yet to serve. I order that you serve that sentence in hard labour at the Ningerum Correction Services. A warrant of commitment in those terms shall issue forthwith.

___________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyer for the Prisoner

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^[1] (01/04/04) SC738.
^[2] (31/05/05) SC789.
^[3] As in The State v. Vincent Simbago (26/09/05) N2954, per Kandakasi J.
^[4] [1988-89] PNGLR 98.
^[5] [1994] PNGLR 38.
^[6] (01/04/04) SC740.
^[7] (01/04/04) SC741, per Sevua, Kandakasi and Lenalia JJ.
^[8] (01/04/04) SC742, per Sevua, Kandakasi and Lenalia JJ.
^[9] [1994] PNGLR 38.