State v Kove [2010] PGNC 52; N4063 (15 July 2010)

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CRIMINAL LAW – sentence – murder – deceased having extra marital affair with prisoner’s mother - affair lasting twenty five years – prisoner using shotgun to shoot the deceased – deceased shot on chest – death instant - death resulted from gunshot wound – total of fourteen pellets penetrated lungs - guilty plea – no prior conviction – cooperation with police - events leading to commission of crime treated as extenuating circumstance – prisoner lacking sophistication – no pre-planning – prevalence of offence - strong intention to cause grievous bodily harm - sentence of twenty four years imprisonment imposed – ss. 300 (1)(a) and 19 Criminal Code.

Cases cited:
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
The State v Laura (No.2) [1988-89] PNGLR 98
Lawrence Simbe v The State [1994] PNGLR 38
Triga Kakarabo v The State, SC Review No.23 of 2001, Unreported & Unnumbered Judgment of the Supreme Court (Jalina, Injia & Sawong) delivered on 3 October 2002 at Mt. Hagen
Max Java v The State (2002) SC701
Joseph Enn v The State (2004) SC738
Sakarowa Koe v The State (2004) SC739
Simon Kama v The State (2004) SC740
Kepa Wanege v The State (2004) SC742
Manu Kovi v The State (2005) SC789

Counsel:
Mr. Ravunama Auka, for the State
Mr. Frederick Kirriwom, for the Prisoner

1. DAVID, J: INTRODUCTION: On 9 July 2010, the State presented an indictment charging the Prisoner that he on 24 June 2008 at Wasuma in Papua New Guinea murdered one Koro Gunina (the deceased) contravening s.300 (1)(a) of the Criminal Code. Upon arraignment, the Prisoner entered a guilty plea which the Court accepted and therefore convicted him of the charge.

2. For purposes of arraignment, the following brief facts were put to the Prisoner.

3. On 24 June 2008 at around 01:30 pm at Wasuma village, Rigo District in the Central Province, the Prisoner went to his garden with his mother and daughter. Whilst in the garden, the deceased was seen hiding in the bushes staring at his mother and daughter. The Prisoner took his gun, aimed at the deceased and fired a shot at him. He shot the deceased on the chest. The deceased ran into the bushes and died later as a result of the gun shot wound he sustained. When the Prisoner shot the deceased, he intended to cause grievous bodily harm to him.

5. In the Record of Interview dated 26 June 2008, the Prisoner admits shooting the deceased with his shotgun on Tuesday, 24 June 2008.

6. The deceased is from Wasuma village, Rigo District in the Central Province aged fifty five years.

7. According to the Autopsy Report authored by Dr. Philip Golpak of the Port Moresby General Hospital dated 4 July 2008, he conducted a post mortem examination of the deceased at the Port Moresby General Hospital on 4 July 2008 at about 10:00 am.

8. The Autopsy Report confirms that the deceased died from a gunshot wound to the chest. This is consistent with the Prisoner’s answers to Questions 25 and 26 of the Record of Interview that he shot the deceased once with his shotgun. External examination revealed that the deceased received fourteen pellet wounds centered on the anterior chest mainly on the right side. Internal examination revealed twelve pellet wounds on the right lung anterior aspect on both the upper and the lower lobes. The left lung had two pellet wounds on the lower lobe of the anterior aspect. Two litres of free blood and blood clots was found in the right thoracic cavity.

9. The Prisoner is from Wasuma village, Rigo District in the Central Province and is a subsistence farmer. He is aged about thirty eight years. He is married and has six young children. He claims to have received no formal education. He is a Christian and is a baptised member of the Seventh Day Adventist Church. His parents are alive.

11. The Prisoner said that whilst he admitted committing the crime for which he is sorry, he asked the Court to exercise mercy on him by placing him on probation or on a good behaviour bond taking into account the circumstances in which the offence was committed. He said his mother had been involved in an extra marital affair for twenty five years with the deceased beginning from the time of his childhood and when his father became aware of that relationship, he laid a complaint in the District Court, but that action did not deter the deceased. He personally took up the matter with the village court as well, but nothing was achieved there. Therefore, when he saw the deceased at the garden stalking his mother to do "something bad", he was angry and shot him.

12. Section 300 (1)(a) of the Code creates the offence and prescribes the penalty. The maximum penalty, subject to s.19 of the Code is life imprisonment. I set out the relevant provision as follows:-

(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; or ...........................................

13. It is trite law that the maximum penalty should be imposed on cases of the worst category: see Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] PNGLR 92 and Ure Hane v The State [1984] PNGLR 105. It is also settled law that each case must be decided on its merits as highlighted in Lawrence Simbe v The State [1994] PNGLR 38.

14. The sentencing tariff for murder cases was initially proposed by the late Chief Justice Kidu in The State v Laura (No.2) [1988-89] PNGLR 98. That was a case where the prisoner who was charged for murder was found guilty after a trial and sentenced to eight (8) years. His Honour suggested that:-

"(a) on a plea of guilty where there are no special aggravating factors, a sentence of six years;

(b) a sentence of less than six years may be imposed only where there are special mitigating factors, such as the youthfulness or very advanced age of the accused;

15. The tariff suggested in Laura (No.2) which was adopted and applied in Lawrence Simbe has been subjected to review by several Supreme Court cases with a view to adjusting it upwards. Simon Kama v The State (2004) SC 740 and Manu Kovi v The State (2005) SC 789 are recent judgments of the Supreme Court on point.

16. In Simon Kama, the appellant was sentenced to imprisonment for a term of twenty five years on a guilty plea to a charge of murder. The crime was committed in the course of conducting a planned armed robbery with the use of three firearms, a 303 rifle and two home made guns on a highway. The deceased was the driver of a Toyota Land Cruiser motor vehicle with about five passengers on board. The deceased slowed the vehicle down to stop upon seeing the appellant and his co-offenders step out on to the road from their hiding place with their guns pointed at the deceased and the other passengers. The appellant then shot the deceased on the head killing him instantly. The appellant appealed on the grounds of excessiveness of sentence and the failure by the National Court to take into account the appellant’s guilty plea and not allowing him to address the court on sentence. The appeal was dismissed.

17. The Supreme Court there held that the guidelines set by Laura (No.2) and Lawrence Simbe for murder cases are relevant with certain variations based on the review of sentences imposed up to the time of judgment and the prevalence of the offence. The Supreme Court suggested the following tariff:-

"(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 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".

18. The Supreme Court also said that where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence, it should or may warrant a sentence lower than any of the tariffs suggested. The Supreme Court went on to say that the suggested tariffs were to be used as guides only and not a rigid set of rules requiring strict adherence in every case and that a judge could depart from them in appropriate cases for very good reasons such as the presence of very serious aggravating factors and even where special mitigating circumstances exist.

19. In Manu Kovi, the Supreme Court revisited the cases which set the tariff or range of sentences for the offences of wilful murder, murder and manslaughter because it considered that the tariffs for those offences should be consistent. That was a case where the Supreme Court was dealing with an appeal in person against a sentence of life imprisonment for the wilful murder of his wife which the appellant considered was excessive. The Supreme Court using the categories suggested in Laura (No.2) as a guide, suggested the following tariff ranging from; twelve to fifteen years on a guilty plea with ordinary mitigating factors and no aggravating factors for the first category; sixteen to twenty years on a trial or plea with mitigating factors and aggravating factors for the second category; twenty to thirty years on a trial or plea with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence for the third category; and life imprisonment on a trial or plea for the worst cases of the offence where there are no mitigating factors or mitigating factors are rendered totally insignificant by the gravity of the crime as the final category.

CATEGORY 1	12 – 15 years
Plea Ordinary cases. Mitigating factors with no aggravating factors.	No weapons used. Little or no pre-planning. Minimum force used. Absence of strong intent to do GBH
CATEGORY 2	16 – 20 years
Trial or Plea Mitigating factors with aggravating factors.	No strong intent to do GBH. Weapons used. Some pre-planning. Some element of viciousness.
CATEGORY 3	20 – 30 years
Trial or Plea Special aggravating factors. Mitigating factors reduced in weight or rendered in- significant by gravity of offence.	Pre-planned. Vicious attack. Strong desire to do GBH. Dangerous or offensive weapons used eg. gun or axe. Other offences of violence committed.
CATEGORY 4	LIFE IMPRISONMENT
Worst Case – Trial or Plea Special aggravating factors. No extenuating circumstances. No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	Pre-meditated 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.

21. Mr. Kirriwom of counsel for the Prisoner submitted that the present case falls in the second category under the Manu Kovi guidelines notwithstanding that there was a strong intention to cause grievous bodily harm, an element of the third category.

22. Counsel further submitted that mitigating factors operating in the Prisoner’s favour are; his guilty plea; he has no prior convictions; he cooperated with the police from the beginning by voluntarily surrendering himself to the police and making admissions in the Record of Interview; there was the presence of extreme de-facto provocation brought about by his mother’s extra marital affair with the deceased for about twenty five years causing much pain to his father and which he had to bear witness to over those years leading him to lose self control when he saw the deceased in the garden and commit the crime, a relevant extenuating circumstance; and there was no pre-planning.

23. As to factors operating against the Prisoner, counsel submitted that these were; he committed a very serious and prevalent crime resulting in a loss of life; he committed the crime using a dangerous weapon; and there was a strong intention to cause grievous bodily harm.

24. Counsel therefore submitted that in the particular circumstances of this case taking into account the factors operating against the Prisoner and those in mitigation, a sentence between fourteen and eighteen years would be appropriate.

25. Mr. Auka of counsel for the State submitted that the present case would appear to fall between the second and third categories of the Manu Kovi guidelines.

26. He urged the Court to impose an appropriate sentence that best befits the crime particularly in the light of the presence of circumstances of aggravation such as the prevalence of the offence, the use of a shotgun and there was a strong intention to cause grievous bodily harm.

27. Counsel further submitted that in considering an appropriate sentence in the present case, I should allow myself to be guided by the decisions in; Triga Kakarabo v The State, SC Review No.23 of 2001, Unreported & Unnumbered Judgment of the Supreme Court (Jalina, Injia & Sawong) delivered on 3 October 2002 at Mt. Hagen; Sakarowa Koe v The State (2004) SC739; Simon Kama; Joseph Enn v The State (2004) SC738; Max Java v The State (2002) SC701; Kepa Wanege v The State (2004) SC742; and Joseph Enn v The State (2004) SC738. Apart from Simon Kama which I have already discussed, I briefly discuss the other cases below.

28. In Triga Kakarabo, the appellant, a long-serving policeman was convicted and sentenced to eighteen years after a trial on a charge of murdering a young high school male student with a gun in a tribal fighting area. The appeal against both conviction and sentence was dismissed as having no merit.

29. In Sakarowa Koe, the appellant appealed against a sentence of twenty years imposed on a manslaughter charge on a guilty plea, arguing that it was too excessive. The Supreme Court said it was not. The brief background to that case is that the appellant had an argument with the deceased relatives at the village market over payment of charges which the appellant and another person were collecting from those who were selling their produce. The argument developed into a fight. In the course of the fight, the appellant ran to his house which was nearby, returned with his homemade shotgun and shot the deceased on his chest. The deceased died sometime later from the shotgun wound. The Supreme Court said the sentence was very lenient given the seriousness of the offence and dismissed the appeal.

30. In Max Java, on a guilty plea to a charge of murder, the applicant was sentenced to twenty years. He then made application for his sentence to be reviewed. The brief background to that case is that on the afternoon of that fateful day, the applicant had returned home when he was informed by his wife that the deceased had destroyed their food garden. He grabbed a grass knife and went looking for the deceased. Upon seeing the applicant, the deceased tried to run away, but the deceased caught up with him and cut him several times causing severe injuries. The deceased died of massive blood loss as a result of those injuries. The application was dismissed as having no merit.

31. In Kepa Wanege, the Supreme Court confirmed a sentence of twenty years on a guilty plea to a charge of murder. The evidence in the National Court was that the deceased had taken some tree branches for firewood from a disputed land after an argument with the appellant and his father. The appellant and his father then followed him and attacked him from behind. He did not know that they had been following him. They cut him on his head twice with an axe using the sharpened part of the axe and also hit him all over his body with sticks resulting in serious injuries to his body. He eventually died from the injuries he sustained. The Supreme Court held that the sentence of twenty years was very lenient given the seriousness of the offence and dismissed the appeal.

32. In Joseph Enn, the appellant was sentenced to twenty years on a guilty plea to a charge of murder. The brief background to that case is that the appellant was at a reconciliation meeting when an argument arose between the deceased, a male and a woman which developed into a fight. The fight was stopped when another person intervened. When the deceased walked back to where he initially was to sit down, the appellant armed with a long bush knife walked up from behind him and struck him with the bush knife on the left side of the neck. The impact of the blow was such that the deceased’s head was totally severed from his body. The appellant appealed on the basis that the sentence was excessive and that the trial judge had not considered his personal antecedents. The Supreme Court dismissed the appeal.

33. I accept that the present case falls between the second and third categories of the Manu Kovi guidelines and it is not a case of the worst type for this offence for the maximum penalty for the offence to be imposed. I will have to consider a sentence between the recommended ranges for the two categories subject to the exercise of my discretion under s.19 of the Code. I note in this regard that the second category attracts a sentence between sixteen and twenty years while the third category attracts a sentence between twenty and thirty years.

34. Subject to my further remarks below, I accept in the Prisoner’s favour all the mitigating factors advanced in his favour by the defence.

35. I will treat the events leading up to the commission of the offence concerning the extra marital affair of the Prisoner’s mother and the deceased as described by the Prisoner and his counsel as an extenuating circumstance. This view is consistent with the definition of the phrase "extenuating circumstances" ascribed to it by the Supreme Court empanelled by five judges in Steven Loke Ume v The State (2006) SC836 where it stated at paragraph 42 as follows:

"As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself – factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of and extent the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did."

36. I will also treat in the Prisoner’s favour that his lack of sophistication being an illiterate ordinary villager from an inland village in the Rigo District of Central Province influenced him to take the law into his own hands.

37. Factors I consider operating against the Prisoner in the present case are that the offence is prevalent, it was a vicious attack using a shotgun, there was a strong intention to cause grievous bodily harm and whilst the Prisoner said sorry to the Court and relatives of the deceased on allocatus, it was to my mind meaningless without him taking any tangible step say for example, offering a direct apology to the victim’s family or making a reconciliation feast according to his custom.

38. The fact that the Prisoner was in full view of the deceased when he was hiding in the bushes of his garden "spying on my mother and daughter" and he had to get closer to the deceased before he shot the deceased makes it quite apparent that the attack was vicious and the Prisoner intended to cause grievous bodily harm to the deceased: see questions and answers 21 to 29 of the Record of Interview. Whilst he stated in the Record of Interview that he did not recognise the deceased because he covered his face with leaves, there is no doubt in my mind that what he saw was a human being and not an animal. Any doubt as to what he shot at is removed by the fact that he had to go closer to the target, have a clear view before firing the shot which would ordinarily have endangered the life of a human being or an animal for that matter. The target unfortunately was the deceased.

39. I have not been able to find a case authority similar to the present case although Sakarowa Koe, a case involving manslaughter, is the closest. However, having considered all the circumstances of this case, the Prisoner’s antecedents and his address on allocatus, the law including case precedents that have been referred to me by counsel and others that I have cited myself and for reasons given above, I consider that a custodial sentence of twenty four years imprisonment in hard labour is appropriate. Incarceration will be at the Bomana Correctional Institution. It appears from the depositions that the Prisoner has been in custody since 26 June 2008. This means that he has been remanded in custody for two years and three weeks as at the date of sentence. That period is deducted from the head sentence leaving twenty one years, eleven months and one week to be served.

________________________________________
Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

National Court of Papua New Guinea

State v Kove [2010] PGNC 52; N4063 (15 July 2010)