State v Poro [2007] PGNC 247; N5491 (16 October 2007)

N5491

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1023 0F 2007

THE STATE

V

JONA PORO

Madang: Cannings J
2007: 10, 16 October

CRIMINAL LAW – sentence – murder – Criminal Code, Section 300(1)(a) – guilty plea – killing in course of marital dispute – death of baby daughter – sentence of 12 years; suspension of 4 years.

A man pleaded guilty to murder. He got angry with his wife, threw a stick at her, intending to do her grievous bodily harm. The stick missed his wife but struck their baby daughter, killing her.

Held:

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

(2) Mitigating factors are: sole offender; deceased was susceptible to injury; non-vicious attack; death an unforeseeable consequence; co-operated with police; pleaded guilty; remorse; first offence; a tragic accident.

(3) Aggravating factors are: directly killed the deceased; no intervening cause of death; intended to harm his wife; no provocation; offender's role not minor; did not give himself up; no reconciliation.

(4) A sentence of 12 years was imposed. The pre-sentence period in custody was deducted and four years of the sentence was suspended on conditions.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
Simon Kama v The State (2004) SC740
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
Tom Longman Yaul v The State (2005) SC803

SENTENCE

This was a judgment on sentence for murder.

Counsel

M Ruarri, for the State
A Turi, for the offender

16th October, 2007

1. CANNINGS J: This is a decision on sentence for a man, Jona Poro, who pleaded guilty to one count of murder arising from the following facts. On 14 June 2006 he had an argument with his wife while they were working in their garden. She left the scene of their argument and got into a canoe with their daughter, Leonie, aged one year, eight months, and was paddling towards their village, Kuanda, in the Middle Ramu district of Madang Province. The offender picked up a stick (a tree branch) that was lying on the road, went to the riverbank, and, looking down on the canoe, aimed and threw the branch at the back of his wife, intending to cause her grievous bodily harm. The branch missed his wife and struck his daughter in the forehead. She was rushed to the Kuanda health centre, suffering a deep laceration but died an hour after admission due to excessive blood loss and a brain injury causing internal bleeding.

2. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction for murder under Section 300(1)(a) of the Criminal Code, which states:

Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:

if the offender intended to do grievous bodily harm to the person killed or to some other person.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. 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. He said:

I say sorry to the court for taking my daughter's life and breaking the community's law. I say sorry to God for breaking the church's law. I ask the court for a good behaviour bond so I can go back to the village and look after my family. There is no one else to look after them and my garden is overgrown. Thank you for listening.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). He co-operated with the police and made full admissions in his police interview.

PERSONAL PARTICULARS

6. Jona Poro is about 30 years old, married with three children not including the deceased child.

SUBMISSIONS BY DEFENCE COUNSEL

7. Ms Turi submitted that this was far from falling within the worst category of murder and is a case that does not call for a heavy sentence. The offender has a strong belief that the death of his daughter was caused by sanguma (sorcery), which should be taken into account as a mitigating factor.

SUBMISSIONS BY THE STATE

8. Mr Ruarri submitted that a sentence in the range of 16 to 20 years imprisonment is warranted, in view of the strong intention to do grievous bodily harm. The offender's belief in sorcery is not relevant as his belief had nothing to do with his actions on the day of the incident.

DECISION MAKING PROCESS

9. 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?

10. 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?

11. The Supreme Court has in recent times laid down sentencing guidelines for murder in two cases: Simon Kama v The State (2004) SC740 and Manu Kovi v The State (2005) SC789. As Manu Kovi's case is the more recent decision, I will follow it. Its starting point ranges are summarised in the table below.

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

12. I consider that there was no strong desire to do grievous bodily harm but a weapon (the stick) was used. 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?

13. 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?

14. 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. 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. 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 and almost instantly.
   
2. Was just one offender involved? Yes.
   
3. Was there some intervening cause of death? No.
   
4. Did the offender not set out to hurt anyone? No. He intended to harm his wife.
   
5. Did the deceased or any other person provoke the offender in 'the non-legal sense'? No.
   
6. Did the deceased have a pre-existing condition making her susceptible to serious or fatal injury by a moderate blow? Yes, she was a baby.
   
7. Can the attack on the deceased be classed as 'not vicious'? Yes.
   
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. She was not the target of the offender's actions.
   
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. He made admissions.
    
12. Has the offender done anything tangible towards repairing his wrong? No.
    
13. Did the offender plead guilty? Yes.
    
14. Has the offender genuinely expressed remorse? Yes.
    
15. Is this his first offence? Yes.
    
16. Can the offender be regarded as youthful or are his personal circumstances such that they should mitigate the sentence? Neutral. I agree with Mr Ruarri's submission that the offender's belief in sorcery is irrelevant in this case.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes, in many respects this was a tragic accident. The offender had no intention of killing or doing any harm to his daughter.
    

15. To recap, the mitigating factors are:

• No 2 – sole offender;
• No 6 – deceased was susceptible to injury;
• No 7 – non-vicious attack;
• No 8 – death an unforeseeable consequence;
• No 11 – cooperated with police;
• No 13 – pleaded guilty;
• No 14 – remorse;
• No 15 – first offender;
• No 17 – a tragic accident.
  

16. Aggravating factors are:

• No 1 – directly killed the deceased;
• No 3 – no intervening cause of death;
• No 4 – intended to harm his wife;
• No 5 – no provocation;
• No 9 – offender's role not minor;
• No 10 – did not give himself up;
• No 12 – no reconciliation.
  

17. The other factor (No 16) is neutral. After weighing all those factors (nine mitigating factors compared to seven aggravating factors), I place great weight on the guilty plea, the full co-operation the offender gave the police and the unusual circumstances in which the death occurred. These factors pull the head sentence below the starting point range. 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 six months.

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

19. Yes. Given all the circumstances in which this tragic event took place and especially considering that the offender's family is likely to be suffering in his absence, I will suspend four years of the sentence on the following conditions:

(a) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(b) must not leave Madang Province without the written approval of the National Court;
(c) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;
(d) must attend his local Church every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office at Madang on the first Monday of each month between 9.00 am and 3.00 pm;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;
(h) must have a satisfactory probation report submitted to the National Court Registry at Madang every three months after the date of sentence;
(i) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

20. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

21. Jona Poro, having been convicted of one count of murder, is sentenced as follows:

Length of sentence imposed	12 years
Pre-sentence period to be deducted	6 months
Resultant length of sentence to be served	11 years, 6 months
Amount of sentence suspended	4 years
Time to be served in custody	7 years, 6 months

Sentenced accordingly.
_____________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender