State v Wakore [2007] PGNC 61; N3222 (16 August 2007)

N3222

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 378 0F 2003

THE STATE

v

KEVIN WAKORE

Kimbe: Cannings J

2007: 6, 20, 25 July,
16 August

CRIMINAL LAW – sentence – murder – victim killed in village setting, clan dispute over alleged adultery, offender in a group fight – guilty plea – sentence of 12 years.

A man pleaded guilty to murder. There was a dispute 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.

Held:

(1) The starting point for sentencing for this sort of murder is 16 to 20 years imprisonment.

(2) Mitigating factors are: de facto provocation; co-operated with police; compensation, peace and reconciliation; pleaded guilty; first-time offender; taking the rap.

(3) Aggravating factors are: no intervening cause of death; deceased had no pre-existing, susceptible condition; death was a foreseeable consequence of the assault; offender’s role in the killing was not minor.

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

Cases Cited:

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 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
The State v Sebastian Justin Kelly CR 75/2001, 20.05.05

SENTENCE

This was a judgment on sentence for murder.

Counsel

F Popeu, for the State
B Tanewan, for the offender

16 August, 2007

SENTENCE

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of murder arising from the following facts.

2. The offender and the victim are from Pangalu village in the Talasea area of West New Britain Province. Late in the afternoon of 5 October 2002 the offender, Kevin Wakore, in company with a number of his relatives went to the premises of the deceased’s brother, Andrew Waluka. They were demanding compensation as it was alleged that Andrew Waluka had committed adultery with the wife of one of the offender’s clansmen, Ben Gala. The offender’s group was armed with bushknives and a homemade gun. There was a confrontation between Ben and Robin. Ben pulled a gun from Robin and while they were struggling a member of Kevin’s group cut Robin on the hand. Robin fell and he was cut again on the legs. Kevin got the gun and shot Robin in the chest. Kevin’s group then ran away. Robin was rushed to the Bitokara Health Centre but died on the way. A post-mortem shows that he died due to a gunshot wound to the chest, which caused the collapse of his right lung. When shooting Robin, Kevin intended to do him grievous bodily harm.

3. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted Kevin Wakore of murder.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. 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:

It is true that I committed this offence and I am the only one who caused the deceased’s death. The others [several other men have been charged over the same death] were not involved. However, this trouble did not occur for no reason. Andrew committed adultery and that was the cause of the whole problem. When we went to the deceased’s premises I was not armed. The gun that the deceased was shot with was his own. I only got the gun when another person cut Robin on the hand. I did not check whether it was loaded. I only wanted to threaten him. I don’t know how the gun fired.

OTHER MATTERS OF FACT

6. 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).

7. He co-operated with the police, made admissions in his police interview and signed a confessional statement. All of those things happened within a week after the incident.

8. His claim that he was not armed when he went to make the compensation demand is borne out by the records of interview of the others involved. It was indeed the deceased’s own gun that the offender shot him with. It also appears that the people that the offender’s group was fighting with were armed more heavily than his own group.

PRE-SENTENCE REPORT

9. To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the report follows:

KEVIN WAKORE: male, aged about 30 years.

Residence: Pangalu.

Family background: mother and father from Talasea – father is deceased; mother alive – Kevin is the third-born in a family of six.

Marital status: married with five children – stable marriage.

Education: Grade 6, Pangalu Primary School.

Employment: worked for a short time with Lotogam Plantation as a harvester, while he was on bail; lost the job when he went back into custody.

Health: OK.

Financial status: earns income from sale of copra.

Plans: look after his family and his blocks.

Victim’s family’s attitude: the deceased’s father, Waluka Gare, has received K10,000.00 and is satisfied with that – another of his sons was shot dead by police when the fighting between the offender’s and deceased’s clans was still going on – there was a payback killing of one of the offender’s clan too – despite these problems there has been reconciliation between the clans.

Offender’s family’s attitude: supportive – his wife and other members of the family are concerned about the welfare of his five children if the offender spends a long time in jail.

Attitude of community: prior to the offence his behavioural record in the local community was good – there was a big reconciliation ceremony in 2004 – the two clans involved have made peace though some underlying tension remains – since the incident took place, the two clans – Pagonunu (deceased’s clan) and Tabekewavo (offender’s clan) – have intermarried, which is significant as the exchange of women in the Talasea area is a sign of peace.

Assessment: not a threat to the community – well regarded – low risk of re-offending.

Recommendation: suitable for probation, subject to strict conditions.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mr Tanewan urged the court to consider all the circumstances surrounding commission of the offence: the reason it was committed, how the death actually occurred and what has happened since. There are many mitigating factors in those circumstances, which warrant a sentence of around 15 years, he submitted.

SUBMISSIONS BY THE STATE

11. Mr Popeu agreed that there were a number of mitigating factors, particularly arising from the peace and reconciliation process that has occurred. Nonetheless it was a very serious killing and a firearm was involved, warranting a sentence in the range of 20 to 25 years imprisonment.

DECISION MAKING PROCESS

12. 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 other sentences have been imposed recently in West New Britain for equivalent offences?
  
• step 4: what are the considerations that should be taken into account in determining the head sentence, in terms of years; and what is the head sentence?
  
• step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. 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?

14. The Supreme Court has in recent times laid down sentencing guidelines for murder, in two cases, Simon Kama v The State (2004) SC740 (Sevua J, Kandakasi J, Lenalia J) and Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J, Lay J). 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 DERIVED 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

15. Mr Popeu submitted that the case falls within the upper range of category 2 and the lower range of category 3. The use of a firearm made it a serious case, he submitted, so the starting point range should be 18 to 25 years imprisonment.

16. I agree that the use of the firearm makes this a vicious killing, particularly as the deceased had been disarmed immediately before he was shot. However, I agree with Mr Tanewan that there was no pre-planning involved. The offender and his group went looking for trouble but I cannot conclude that they were planning to kill anyone. No other violent offences were committed. I will therefore treat this case as falling within category No 2, so the starting point range is 16 to 20 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?

17. Before I fix a sentence, I will consider other murder sentences I have handed down recently in West New Britain. These cases are shown in table 2 below.

TABLE 2: NATIONAL COURT SENTENCES FOR MURDER,
WEST NEW BRITAIN, 2005-2006, CANNINGS J

No	Case	Details	Sentence
1	The State v Sebastian Justin Kelly CR 75/2001, 20.05.05	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	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	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 prosecution of common purpose provisions of the Criminal Code Section 8.	15 years, 9 years
4	The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06	Trial – two men murdered a man they suspected had killed a friend of theirs by sorcery – mob attack – the victim was bashed to death.	25 years

STEP 4: WHAT IS THE HEAD SENTENCE?

18. 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.

19. 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.

20. 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? Neutral. On the one hand, he killed him directly by shooting him. The direct cause of death according to the post-mortem report was the gunshot wound. However, the offender said in his allocutus that he is still not sure how the gun fired.
   
2. Was just one person involved in the attack? Neutral. There were others who fought with the deceased but it was only the offender who shot him.
   
3. Was there some intervening cause of death? No.
   
4. Did the offender not set out to hurt anyone? Neutral.
   
5. Did the deceased or any other person provoke the offender in ‘the non-legal sense’, eg did the deceased abuse or assault them? Yes, the deceased had a firearm, which the offender took off him before shooting him. I accept that the victim and his group were more heavily armed than the offender’s group.
   
6. Did the deceased have a pre-existing condition making him susceptible to serious or fatal injury by a moderate blow? No.
   
7. Can the attack on the deceased be classed as ‘not vicious’? Neutral. I accept that the shooting was a spontaneous thing that happened in the course of an angry confrontation.
   
8. Can the death of the deceased be regarded as an unforeseeable consequence of the activity that the offenders were involved in? No.
   
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? Neutral.
    
11. Did the offender cooperate with the police in their investigations? Yes. He made admissions to the police and signed a confessional statement.
    
12. Has the offender done anything tangible towards repairing his wrong? Yes. There has been a concerted attempt at peace and reconciliation, as explained in the pre-sentence report.
    
13. Did the offender plead guilty? Yes.
    
14. Has the offender genuinely expressed remorse? Neutral. He did not actually say he was sorry in his allocutus but his remorse can be inferred from the payment of compensation.
    
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.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes. It seems that from the beginning of the extensive police investigation the offender has been willing to admit what he did and accept responsibility for it. In his allocutus he made the point that it was only him who should be punished for what happened. He is willing to take the rap.
    

21. To recap, the mitigating factors are:

• No 5 – de facto provocation;
• No 11 – co-operated with police;
• No 12 – compensation, peace and reconciliation;
• No 13 – pleaded guilty;
• No 15 – first-time offender;
• No 17 – taking the rap.
  

22. Aggravating factors are:

• No 3 – no intervening cause of death;
• No 6 – deceased had no pre-existing, susceptible condition;
• No 8 – death was a foreseeable consequence of the assault;
• No 9 – offender’s role in the killing was not minor.
  

23. The other factors (Nos 1, 2, 4, 7, 10, 14 and 16) are neutral.

24. After weighing all these factors and bearing in mind that there are six mitigating factors and four aggravating factors, the head sentence should be below the starting point range. The very strong mitigating factors are the reconciliation that has taken place, the guilty plea and the offender’s preparedness to accept responsibility for the death. I am therefore going to impose a sentence below the starting point range. In this way the punishment will fit the crime and reflect everything that has happened since the death. 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?

25. 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, as shown in the following table.

TABLE 3: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	12 years
Pre-sentence period to be deducted	1 year
Resultant length of sentence to be served	11 years

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

26. The offender has received a favourable pre-sentence report, which shows he is a good family man and well regarded in the community, despite the very serious offence he committed. Both his clan and the deceased’s clan have made a genuine attempt to bring peace back to the community. He is recommended for probation. Therefore I will suspend part of but not the entire sentence. Nobody should lose sight of the fact that a life was lost tragically and unnecessarily in a part of this province that has a bad reputation for these sorts of killings.

27. Four years of the sentence will be suspended on the following conditions:

(a) must reside at Pangalu and nowhere else except with the written approval of the National Court;

(b) must not leave WNB Province without the written approval of the National Court;

(c) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(d) must attend a church to be approved by the National Court every week for service and worship and assist the church in its community activities;

(e) must report to the senior Probation Officer at Kimbe 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’s family;

(h) must have a satisfactory probation report submitted to the National Court Registry at Kimbe 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.

SENTENCE

28. Kevin Wakore, having been convicted of one count of murder, is sentenced as follows:

Length of sentence imposed	12 years
Pre-sentence period to be deducted	1 year
Resultant length of sentence to be served	11 years
Amount of sentence suspended	4 years
Time to be served in custody	7 years

Sentenced accordingly.

___________________________
Public Prosecutor: Lawyer for the StatePaul Paraka
Lawyer: Lawyers for the offender