State v Levin [2007] PGNC 206; N4973 (26 October 2007)

N4973

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 177 OF 2005

THE STATE

V

SIMON LEVIN

Buka: Cannings J
2007: 24, 26 October

CRIMINAL LAW – sentencing – murder – Criminal Code, Section 300(1)(a) – sentence after trial – killing of another person with intention to do grievous bodily harm – man assaulted his daughter in domestic dispute, causing her death – sentence of 12 years.

A man in his mid-50s was convicted after trial of murdering his 18-year-old daughter. He became angry and assaulted her in the family home, breaking her jaw and skull, causing an intracranial haemorrhage (bleeding into the brain), which led to her death. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for this sort of murder (no strong desire to do grievous bodily harm) is 16 to 20 years imprisonment.

(2) A sentence of 12 years was imposed. The pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
The State v Augustine Tup CR 1075/2004, 29.09.06
The State v Charles Rava Pake CR 315/2007, 24.08.07
The State v David Yakuye Daniel (2005) N2890
The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868
The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06
The State v Kevin Jeffo CR 1303/2006, 24.08.07
The State v Kevin Wakore CR 378/2003, 16.08.07
The State v Rudolf Reme Koki CR 1967/2005, 24.08.07
The State v Sebastian Justin Kelly CR 75/2001, 20.05.05

SENTENCE

A man was convicted after trial of murder and the following reasons for sentence were given.

Counsel

L Rangan, for the State
P Kaluwin, for the accused

26 October, 2007

1. CANNINGS J: This is a decision on the sentence for a man, Simon Levin, of Kulu Island, Buka, who was convicted after trial of murdering his 18-year-old daughter, Eileen Levin. The offender got angry with his daughter on the afternoon of 13 January 2005. They were at the family home on Kulu Island. He assaulted her badly. She pleaded with him to stop but he continued the assault, breaking her jaw and skull, causing an intracranial haemorrhage (bleeding into the brain), which led to her death. She died a few hours after the assault. The offender tried to pass off his daughter's death as suicide. He spread a story that after he smacked her she became upset and took a drug overdose. That story was not believed by everyone, especially by one of the deceased's cousin-brothers who became suspicious on seeing the extent of the injuries on her body at the haus krai. Her body was exhumed a few days after burial, a police investigation was started and the post-mortem report, admitted into evidence at the trial, showed that Eileen had died due to bleeding into the brain caused by being bashed by a blunt instrument.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows.

I feel that I am not guilty but I have been found guilty. This is my first time to be in court. I would like to ask for a good behaviour bond. I am worried about my family in the village. Only one of my children is at school. I have a lot of debt with the State as I have not paid school fees. These are major worries that I have.

PERSONAL PARTICULARS

4. Simon Levin is aged 55. Both parents deceased. He is the second born in a family of three; a member of the Seventh Day Adventist Church; educated to grade 5 in 1962; never formally employed; married with two wives and 12 children (excluding the deceased).

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Kaluwin submitted that there was an element of de facto provocation as the deceased had gone missing causing the offender to become angry as he did not know where she was. He is already suffering punishment as he has lost his daughter and he will carry the stigma of being the one who killed her for the rest of his life. A major mitigating factor is his advanced age. A sentence of 12 to 15 years would be appropriate.

SUBMISSIONS BY THE STATE

6. Mr Rangan agreed that the court can take into account the offender's age as a mitigating factor. But the court should impose a sentence that reflects the fact that a murder has been committed.

DECISION MAKING PROCESS

7. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

9. The Supreme Court has laid down sentencing guidelines for murder in Manu Kovi v The State (2005) SC789, as shown in the following table.

TABLE 1: SENTENCING GUIDELINES FOR MURDER
FROM SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life.	Life imprisonment

10. I consider that there was no strong desire to do grievous bodily harm but there was no guilty plea so category 1 is inapplicable. The case falls within category 2 so the starting point is 16 to 20 years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

11. Before I fix a sentence, I will consider other murder sentences I have handed down. These cases are shown in table 2.

TABLE 2: SENTENCES FOR MURDER, 2005-2007, CANNINGS J

No	Case	Details	Sentence
1	The State v Sebastian Justin Kelly CR 75/2001, 20.05.05, Kimbe	Guilty plea – vicious attack on a relative who was asleep and unarmed – Bialla – offender used a bushknife – suggestion that the offender was mentally unbalanced.	20 years
2	The State v David Yakuye Daniel (2005) N2890, Kimbe	Trial – husband attacked the deceased (his wife) over suspected infidelity on her part – Kandrian, WNBP – vicious attack, he stabbed her several times.	25 years
3	The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868, Kimbe	Trial (first offender) and guilty plea (second offender) – police officer shot dead in course of armed robbery committed by a gang of which the offenders were members – neither offender fired any shots – convicted under Criminal Code Section 8.	15 years, 9 years
4	The State v Augustine Tup CR 1075/2004, 29.09.06, Buka	Guilty plea – man murdered his wife by punching and kicking her, when he was drunk – offence committed late at night after offender came home from a party – offender a former Defence Force sergeant, involved in active duty during Bougainville Crisis.	20 years
5	The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06, Kimbe	Trial – two men murdered a man they suspected had killed a friend of theirs by sorcery – mob attack – the victim was bashed to death. [Conviction and sentence recently upheld by Supreme Court; offenders' appeal being dismissed.]	25 years
6	The State v Kevin Wakore CR 378/2003, 16.08.07, Kimbe	Guilty plea – dispute erupted between clans in a village after a man was alleged to have committed adultery with another man's wife – two clans had a confrontation and in the course of it the offender shot dead the victim – substantial reconciliation had occurred following the death.	12 years
7	The State v Rudolf Reme Koki CR 1967/2005, 24.08.07, Kimbe	Guilty plea – man came home drunk, argued with his wife, they fought and he beat her to death – no offensive weapons were used – beating continued over several hours, ample opportunity for the offender to stop and get medical assistance for the deceased – no remorse.	28 years

8	The State v Kevin Jeffo CR 1303/2006, 24.08.07, Kimbe	Guilty plea – offender was drunk and angered by stories that his brother-in-law had been assaulting his wife, the offender's sister – offender armed himself with a knife, went to brother-in-law's house, called for him from outside – when he came out, stabbed him with the knife, killing him.	18 years
9	The State v Charles Rava Pake CR 315/2007, 24.08.07, Kimbe	Guilty plea – offender approached a group of friends who were sitting down telling stories in a village setting – offender suddenly attacked one of his friends with a bushknife, inflicting a fatal wound to his neck – offender later claimed that the deceased had done bad things to his sister.	20 years

STEP 4: WHAT IS THE HEAD SENTENCE?

12. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

13. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be strongly mitigating. Others may be mildly mitigating. The same goes for aggravating factors.

14. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Did the offender not directly kill the deceased? No, he killed her directly.
   
2. Was just one offender involved? Yes.
   
3. Was there some intervening cause of death? No – the overdose theory was ruled out at the trial.
   
4. Did the offender not set out to hurt anyone? No. he intended to harm his daughter.
   
5. Did the deceased or any other person provoke the offender in 'the non-legal sense'? No. I reject the defence counsel's submission about de facto provocation.
   
6. Did the deceased have a pre-existing condition making her susceptible to serious or fatal injury by a moderate blow? No. There is no evidence that she had a thin skull.
   
7. Can the attack on the deceased be classed as 'not vicious'? No.
   
8. Can the death of the deceased be regarded as an unforeseeable consequence of the activity that the offender was involved in? Yes, in some respects the deceased's death was an accident.
   
9. Did the offender play a relatively minor role in the activity that led to the death? No.
   
10. Did the offender give himself up after the incident? No.
    
11. Did the offender cooperate with the police in their investigations? Yes.
    
12. Has the offender done anything tangible towards repairing his wrong? No.
    
13. Did the offender plead guilty? No.
    
14. Has the offender genuinely expressed remorse? No.
    
15. Is this his first offence? Yes.
    
16. Can the offender be regarded as youthful or an advanced age or are his personal circumstances such that they should mitigate the sentence? Yes, his advanced age is a significant mitigating factor.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral.
    

15. To recap, the mitigating factors are:

• No 2 – sole offender;
• No 8 – death an unforeseeable consequence;
• No 11 – co-operated with police;
• No 15 – first offender;
• No 16 – advanced age.
  

16. Aggravating factors are:

• No 1 – directly killed the deceased;
• No 3 – no intervening cause of death;
• No 4 – intended to harm his daughter;
• No 5 – no provocation;
• No 6 – no pre-existing condition;
• No 7 – vicious attack;
• No 9 – offender's role not minor;
• No 10 – did not give himself up;
• No 12 – no reconciliation;
• No 13 – pleaded guilty;
• No 14 – no remorse.
  

The other factor (No 17) is neutral.

17. If I were to disregard the offender's age, and weigh the aggravating factors (11) against the mitigating factors (4) the head sentence would be at least 18 years for this sort of offence. However, I feel obliged to give great weight to the offender's age. By PNG standards he is getting to the stage where he might be considered an old man. Lengthy sentences for people of an advanced age should be reserved for the worst sorts of homicides. I do not think this is such a case. I impose a head sentence of 12 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is two years.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. No. The court has not been informed of any moves towards reconciliation within the family. No submissions have been made from the chiefs in the offender's constituency that show that the death of the offender's daughter has been dealt with in any customary way. No material has been presented that warrants suspension of any part of the sentence.

SENTENCE

20. Simon Levin, having been convicted of one count of murder, is sentenced as follows:

Length of sentence imposed	12 years
Pre-sentence period to be deducted	2 years
Resultant length of sentence to be served	10 years
Amount of sentence suspended	Nil
Time to be served in custody	10 years

Sentenced accordingly.
_________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender