State v Parao [2009] PGNC 38; N3625 (9 May 2009)

N3625

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 151 OF 2008

THE STATE

V

ISSAU PARAO

Minj & Mt Hagen: Makail, J
2009: 20th April & 9th May

CRIMINAL LAW - Murder - Guilty plea - Sentence - Prisoner’s version of events on allocutus different from or conflicts with brief allegations of fact - Defence of provocation raised but not pursued - Sentence based on version of events most favourable to prisoner - Criminal Code - Sections 19 & 300(1)(a).

Cases Cited:

Papua New Guinea Cases:
Koniel Alar & Hosea Biu -v- The State [1979] PNGLR 300
Imiyo Wamela -v- The State [1982] PNGLR 269
Roger Jumbo & Aidan Awatan -v- The State (1997) SC516
John Baipu -v- The State (2005) SC796
Manu Kovi -v- The State (2005) SC789
Simon Kama -v- The State (2004) SC740
The State -v- Soeto Wembu: CR No 229 of 2008 (Unreported & Unnumbered Judgment of 16th May 2008)
The State -v- Laura (No 2) [1988-89] PNGLR 98
The State -v- Nande Gairepa: CR No 227 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)
The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008)
Joseph Enn -v- The State (2004) SC738
Lawrence Simbe -v- The State [1994] PNGLR 38

Overseas Cases Cited:
Law -v- Deed [1970] SASR 374

Counsel:
Mr. J Waine, for the State
Mr. P Kumo, for the Prisoner

SENTENCE

9 May, 2009

1. MAKAIL J: On 17th April 2009, I convicted the prisoner on one count of murder of one Andiat Toaps, who was then the Deputy Headmaster of Kandep Secondary School at Avi along the Okuk Highway in the Western Highlands Province on 25th September 2007 contrary to section 300(1)(a) of the Criminal Code on his guilty plea.

BRIEF ALLEGATIONS OF FACT

2. The brief allegations of fact upon which the prisoner pleaded guilty are these; on 25th September 2007 at about 11 o’clock in the morning, the prisoner with his co accuseds drove in 2 motor vehicles and staged a road block at Avi along the Okuk Highway. They held up a driver and passengers of Kandep High School truck. They accused the Deputy Headmaster of Kandep High School, being the deceased in this case of misusing the school truck.

3. At that time, the deceased and other teachers and their family members were on their way to Lae when they were confronted by the prisoner and his accomplices. The prisoner and his accomplices were armed with bush knives and homemade knives and threatened and robbed the passengers off their personal items, valuables and cash of K10,000.00. The accused and his accomplices turned on the deceased and tried to rob him but the deceased resisted their attempt by putting up a fight with them. The prisoner stabbed the deceased on his upper right chest with the homemade knife. Then, he stabbed the deceased on the left side of his back. The deceased died from the stabbed wounds as the homemade knife had penetrated the right lung.

3. The State alleges that when the prisoner did that, he intended to cause grievous bodily harm to the deceased and is a principal offender by virtue of section 7(1)(a)&(b) of the Criminal Code.

ALLOCUTUS

4. On his allocutus, he told the Court the following and I quote what he said in full hereunder:

"Yes your Honour. This problem when it wanted to start, I was at Avi Block at Western Highlands Province. In the morning at 10 o’clock, I got my clothes and went to the river. At that time, I did not bring bush knife with me. I was not armed with any weapons. I went and swam in the river called ‘Purn’. I went to the river and I saw a lot of people there. They too were washing there so I too went and wash there. I washed my clothes and also myself and later sat on the sand.

Later, some boys from Hagen and Chimbu came and sat down with me and told stories. At that time, it was 12 o’clock. A mother gave me a small knife and pineapple and told me to sharpen (peel) it and I did. After that, we ate the pineapple and I heard there was a noise on the road. We went up and saw that one Kandep High School truck was parked there. I stood there at the side of the road and saw Ismael Kunia calling my name. His my cousin. He asked me to fix the tyre. It was punctured.

I went and saw this group of people and they were drinking beer and shook their hands. They gave me wheel spanner, jerk and jerk handle and asked me to do the tyre. The tyre that got punctured was on the front left hand side. I went and jerk it and threw out the jerk handle. At this time, the deceased who died was sitting on the opposite side in the front. He also got drunk and as he wanted to go outside, he fell on the jerk handle.

At this point in time, he sustained injuries to his arm from the jerk handle. At this time, I came out and apologized to him. At that time, I was wearing a yellow ‘T’ Shirt, it was a yellow Trukai ‘T ’Shirt. At this time, he held me on my ‘T’ Shirt and punched me many times. I said sorry to him but he did not listen to me. He kept on punching me. I too felt pain so took out my small knife and poked him. It was unfortunate or mistakenly, the knife went through his heart. At this time, the deceased died. After this incident, I was afraid and I ran away. Next morning, I myself I surrendered to the police in Mt Hagen. I was in custody, my people paid compensation to the relatives of the deceased - K80,000.00. That is all. I say sorry".

THE LAW

5. Section 300(1)(a) of the Criminal Code provides as follows:

"300. Murder.

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

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

(b) ........;

(c) ........;

(d) ........;

(e) .......;

Penalty: Subject to Section 19, imprisonment for life."

6. I note the maximum penalty under section 300(1)(a) of the Criminal Code for the crime of murder is life imprisonment.

PARTIES’ SUBMISSIONS

7. It is clear from the prisoner’s allocutus that the prisoner’s version of events is different from or conflicts with the allegations of fact on which he had pleaded guilty and convicted by the Court. It is also clear that the prisoner has raised a possible defence of provocation and I did raise it with the prisoner’s counsel who informed the Court that the prisoner’s guilty plea was consistent with his instructions and that provocation would be raised in mitigation on sentence.

8. That being the prisoner’s position, I proceeded to hear submissions on sentence. That immediately raised another issue and that is, which version of events should the Court accept when sentencing the prisoner? Is it the State’s version as per the brief allegations of fact or is it the prisoner’s version based on his allocutus?

9. The prisoner’s counsel urges me to accept the prisoner’s version as it is the most favourable version to him. If the Court is to accept the prisoner’s version, this would mean that the Court should reject the State’s version that the prisoner was involved in the armed robbery which led to the killing of the deceased. On the other hand, counsel for the State submits that the Court should accept the brief allegations of fact as presented by the State against the prisoner and which the prisoner pleaded guilty as the true events of 25th September 2007.

10. The law on this issue is quite settled in this jurisdiction. The Court shall accept the version most favourable to the prisoner. The Supreme Court in Koniel Alar & Hosea Biu -v- The State [1979] PNGLR 300 affirmed this and provided some guideline as to acceptance of facts in guilty plea cases particularly when there is a conflict in the version of facts for and against an accused. The Supreme Court cited with approval amongst others the following passage by Bray CJ, in Law -v- Deed [1970] SASR 374:

"The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the defendant alone. ... [I]f a defendant disputes circumstances of aggravation alleged in sworn evidence from the prosecution, he must do so by sworn evidence from himself or someone else: if on the other hand the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then ‘it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused’................

The court can reject the explanation if it passes the bounds of reasonable possibility, but I do not think it ought to take this course without giving that defendant an opportunity to support his story by his oath and that of any other witnesses he desires to call. Some stories which might appear incredible when related in oratio obliqua by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination."

11. Subsequent decisions of the Supreme Court such as the one in Imiyo Wamela -v- The State [1982] PNGLR 269 and Roger Jumbo & Aidan Awatan -v- The State (1997) SC516, endorsed and applied the above passage.

12. Further, it has been said that a sentencing judge should not take into account facts and circumstances which constitute a different or more serious offence from that with which the offender has been charged. In John Baipu -v- The State (2005) SC796, the Supreme Court (Sevua, Sawong & Lay JJ), held that a sentencing judge should not take into account an act, omission, matter or circumstance if the circumstances would then establish:

(a) a separate offence which consisted of, or included, conduct which do not form part of the offence of which the person to be sentenced has been convicted; or

(b) a more serious offence than the offence of which the person to be sentenced has been convicted.

13. Given this position in law, I accept the version of events given by the prisoner on his allocutus and will proceed to sentence him on that basis but subject to appropriate findings where the account of the prisoner is unreasonable, incredible or unbelievable in the circumstances.

Prisoner’s personal details

14. Counsel for the prisoner gives the following personal details of the prisoner:

* He is 20 years old;

* He is from Windjer village, Kandep of the Enga Province;

* He is single;

* He has no formal education;

* He was a resident of Avi Block at the time of the crime; and

* He has been in custody since 28th September 2007.

Mitigating Factors

15. The prisoner’s counsel points out the following mitigating factors operating in his favour:

* He has no prior convictions. This is his first offence;

* He surrendered voluntarily to the police in Mt Hagen;

* He has expressed remorse;

* His relatives paid compensation consisting of cash and kind (pigs) valued at K80,000.00 to the relatives of the deceased;

* There was de facto provocation in that, the prisoner was repeatedly assaulted by the deceased even though he pleaded with the deceased to stop. As the deceased did not stop his assaults on the prisoner, the prisoner retaliated; and

* There was no preplanning or the killing was not premeditated.

16. Counsel for the prisoner submits that given the mitigating factors and the version of events given by the prisoner on allocutus, an appropriate sentence would fall in the second category of murder cases in the Manu Kovi -v- The State (2005) SC789, which would be between 16 to 20 years imprisonment.

Aggravating Factors

17. Counsel for the State points out that there are aggravating factors present in this case and they are:

* The prisoner committed the crime of murder in the course of committing another crime, namely armed robbery. The prisoner did not deny this aspect in his record of interview with the police;

* The prisoner had used a homemade knife to stab the deceased;

* The stab was at the chest of the deceased, which is an indication of the prisoner’s intention to cause serious grievous bodily harm to the deceased; and

* The crime of murder is prevalent in the country, especially in the Highlands region.

18. Counsel for the State cites the Supreme Court case of Simon Kama -v- The State (2004) SC740 and submits that this case would fall in the sentencing range of 17 and 25 years imprisonment. He asks for 25 years imprisonment.

REASONS FOR DECISION

19. As I have said above, since there are two different versions of the events on the day of the murder, I have accepted the version most favourable to the prisoner and will sentence him on those facts. Proceeding on this premise, a quick review of some of the murder cases that I had dealt with last year would be of some assistance and guidance to determine an appropriate sentence here.

20. On 16th May last year, I sentenced a prisoner on his guilty plea to 15 years in prison for murdering his son in law. That was in the case of The State -v- Soeto Wembu: CR No 229 of 2008 (Unreported & Unnumbered Judgment of 16th May 2008) which fell into the second category of murder cases. There, the prisoner chopped his son in law on his neck during a fight with a bush knife and he died. I found that the mitigating factors far outweighed the aggravating factors. Two special mitigating factors which persuaded me to sentence the prisoner to 15 years, two years less then the starting point of 17 years were, first the prisoner and his relatives paid a substantial compensation of K40,000.00 and 48 pigs to the deceased’s relatives and secondly, the prisoner was an old man of 60 years.

21. I imposed that sentence after I had considered the sentencing tariff set by the Supreme Court in The State -v- Laura (No 2) [1988-89] PNGLR 98 and the Supreme Court case of Simon Kama (supra). I had also followed the sentencing tariff in the Supreme Court case of Manu Kovi (supra) by applying the sentencing range of 16 to 20 years imprisonment in a contested or uncontested case, with mitigating factors and aggravating factors.

22. The second case of murder is The State -v- Nande Gairepa: CR No 227 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008) where the prisoner pleaded guilty to murder and was sentenced to 17 years imprisonment during my first court circuit to Mendi in May last year. There, one of the things that struck me was that the prisoner who hailed from Rata village in Kagua took the deceased and the deceased’s family who hailed from Banz in the Western Highlands Province on a very long journey to a place or location in Poroma. It was a long distance away from the prisoner’s village of Rata in Kagua. I was unable to precisely ascertain the reason for him to take the deceased and his family to that part of the province. Whatever was the reason, there was one thing clear in my mind and that was, the prisoner and the deceased and his family did not end up in Rata village as initially planned. A stone was the medium of attack. That is, the prisoner struck the deceased right on his head with a stone and it cracked the skull and the deceased died.

The last case of murder I wish to refer to is The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008), which was one of those cases arising from a domestic setting where the prisoner suspected her husband of having an extra marital affair, followed her husband and his lover, the deceased to their own house in the night and confronted them. An argument erupted between the prisoner and the deceased followed by the prisoner attacking the deceased by stabbing her on the chest once with a kitchen knife and she died. She was sentenced to 16 years imprisonment.

23. Whilst the factual circumstances surrounding the murder of the deceaseds in the three cases I have referred to above are not the same as the present case, they nonetheless give us an idea of the sentencing range the Court has imposed in murder cases and I see nothing wrong in comparing the sentences in past cases with each other. Hence, the sentences range between 15 and 17 years.

24. A closer one to the present case is the Supreme Court case of Joseph Enn -v- The State (2004) SC738. The Appellant entered a guilty plea to a charge of murder. Before the National Court, the following facts were these; on the morning of 17th June 2000, the Appellant left his village for Togel village to attend a reconciliation meeting with the aim to resolve an outstanding dispute. In the course of that meeting, the victim, Mathew Wamina and Margaret Daka had an argument and they then fought. Thomas Gend, one of their clansmen stopped the two from fighting.

25. After they were stopped, the deceased walked back to where he was, to sit down. The Appellant armed with a long bush knife walked up behind the deceased and struck the deceased with the bush knife on the left side of the neck. The impact of the knife blow was such that, the head was totally severed from the body. He was sentenced to 20 years imprisonment and appealed on the basis that the sentence was too high and that the National Court had not considered his personal antecedents. The Supreme Court dismissed his appeal.

26. I should also mention here that, whilst in Simon Kama’s case (supra), the Supreme Court accepted the guidelines set by Laura (No. 2)’s case (supra) and Lawrence Simbe -v- The State [1994] PNGLR 38 for murder cases as being relevant, they added the following variations based on the sentences imposed by the Courts to date and the prevalence of the offence as follows:

"(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 range 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 committed 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 committed another offence, a sentence of forty one (41) years to life imprisonment".

27. In Simon Kama’s case (supra), the prisoner killed the deceased with a shotgun in the course of committing an armed robbery whereas in this case, a homemade knife was used and as I have accepted the version of events put forward by the prisoner on allocutus, that means that, there is no armed robbery here. That being the case, I do not think it would be wrong for me not to consider a sentence of 25 years imprisonment as was imposed by the National Court and confirmed by the Supreme Court in the Simon Kama’s case (supra). Rather I can consider a sentence lesser than 25 years hence, I ask the question here; which category of murder case does this case fall under?

28. I must agree with the submissions of the counsel for the prisoner that an appropriate sentence would be between 16 and 20 years imprisonment which is the sentencing range in the second category of murder cases suggested in Manu Kovi’s case (supra). As I have accepted the prisoner’s version of the events on that day of the murder, I do not find that the murder was committed in the course of another crime, namely armed robbery, hence there is no circumstances of aggravation in this respect. But I do find that first, the prisoner attacked the deceased with a homemade knife. The use of knives whether bush knife or kitchen knife in murder cases is prevalent in this country. To my mind, that is a serious aggravating factor which I will hold against the prisoner.

29. Secondly, I find that the prisoner stabbed the deceased with a homemade knife on his chest during the fight. To my mind, that is an indication that the prisoner intended to cause grievous bodily harm to the deceased. The stab was directed at a vulnerable part of the deceased’s body which where the lung is and it is no wonder the knife penetrated the lung. That means that I reject his story that he did not mean to stab the deceased and that it was a mistake on his part. I will hold this factor against him. Thirdly, notwithstanding the prisoner’s account that he stabbed the deceased once with the homemade knife, I do not believe him. On the other hand, I find he stabbed the deceased four times. The finding I make is consistent with the Medical Report of Dr Jeffrey Tore of Mt Hagen General Hospital dated 29th September 2007 where he stated in part and I quote:

"GENERAL PHYSICAL EXAMINATION

Adult Melanesian male lying supine. Well built. Sustain x 4 knife wounds to his chest, arm and back.

EXTERNAL EXAMINATION

Head: Blood from the nostrils and mouth.

Chest: Right - knife wound close to the sternum measuring about 3cm x 2cm. Depth involving the lung tissue.

Back - x 2 knife wounds. However, not involving the chest cavity.

Limbs: Left - knife wound measuring about 6cm x 2cm. Humerus (bone) clipped off.

Others: NAD".

30. In the circumstances, I find that the deceased sustained multiple wounds to his body. The fatal wound from the stab was on his chest which penetrated his right lung leading to his demise. I will hold this factor against the prisoner. Finally but not the least, the prevalence of the crime of murder in the country is a serious matter which I will hold against the prisoner because this case is another one added to the long list that this Court has been confronted with from time to time.

31. But the mitigating factors in the present case seem to outweigh the aggravating factors when they are considered in more detail like for examples, first, the prisoner is a first offender. Secondly, he voluntarily surrendered to the police in Mt Hagen after escaping from the scene of the crime for want of fear of his life. To my mind, this is an indication that he is genuine and has accepted full criminal responsibility for what he has done. Thirdly, he had expressed remorse for committing the crime and fourthly, his relatives had paid a hefty price for his actions by paying the relatives of the deceased, compensation in the total value of K80,000.00 which comprised of cash and kind (pigs).

32. Fifthly, there was presence of de facto provocation in that, the prisoner was repeatedly assaulted by the deceased even though he pleaded with the deceased to stop. As the deceased did not stop his assaults on the prisoner, the prisoner retaliated by stabbing him on his chest with the homemade knife. Finally, I find that there was no preplanning or the killing was not premeditated. As I said above, the killing occurred as a result of the deceased’s persistent assault of the prisoner when the prisoner retaliated.

33. I take into account the prisoner’s personal details, he being 20 years old, single and has no formal education and when balancing the aggravating factors and the mitigating factors, I am of the view that the mitigating factors out weigh the aggravating factors. That means that, this case is not as serious as that of Nande Gairepa (supra) and Tausang Bange (supra) where sentences of 17 years and 16 years imprisonment had been imposed in each case. In my view, a sentence of less than those should be imposed in this case. In the end, I have made up my mind that a sentence of 15 years imprisonment is called for in this case.

CONCLUSION

34. Accordingly, the prisoner is sentenced to 15 years imprisonment in hard labour less 1 year and 7 months and 11 days for time spent in pretrial custody since 28th September 2007, leaving a balance of 13 years 4 months and 19 days to serve at Baisu Corrective Institute. A warrant of commitment will be issued in those terms shortly.

Sentence accordingly.

__________________________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner