State v Ngaufu [2011] PGNC 222; N4554 (23 September 2011)

N4554

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1239 OF 2010

THE STATE

V

PHILIP NGAUFU

Lihir: Batari J
2011: 19, 23 September

CRIMINAL LAW – Sentence – Murder – Plea - Accused attacked deceased with bush knife causing injuries resulting in death – Unsuspecting victim - Murder killings - Seriousness of – Factors in mitigation - Motivation - Indirect provocation –Factor of – Accused acted on indirect incitement from third party - Whether factor mitigation – considerations of – Sentence of 25 years imprisonment appropriate.

CRIMINAL LAW – Practice and Procedure - Sentencing discretion – Exercise of – Guiding principles discussed and applied

Cases Cited

Lawrence Simbe v The State [1994] PNGLR 38. See also, Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.2) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
John Elipa Kalabus v the State [1988] PNGLR 193
Manu Kovi v The State (2005) SC789
Simon Kama v The State (2004) SC740

Counsel

Mr. R. Lukara, for the State
Mr. M. Yawip, for the Accused

SENTENCE

23 September, 2011

1. BATARI J: CASE OVERVIEW: On 19 June 2010 the prisoner appeared before the court upon indictment charging him with one court of murder. He pleaded guilty and was convicted. He appears in Court again today for the purpose of completing the sentencing process.

BACKGROUND

2. The brief facts are that, on the evening of 19 June, 2010 at Balsa settlement, Lihir, Philip Ngaufu heard his other relations lamenting womenfolk from their Tanga Island being sexually harassed by male Sepik settlers. Incensed by what he was hearing, Philip decided to confront the alleged perpetrators alone when his fellow Tanga islanders resisted his urging for reprisal. He armed himself with a bush knife and followed a track towards a John Soma bottle shop where Sepik settlers were known to reside. Philip came upon the deceased, Felix Ipun of Sepik origin and attacked him in his sleep under a breadfruit tree.

3. The medical report compiled by Dr B Wau noted:-

• Slashed neck wound cutting through major vessels, throat, trachea and neck bones,
• Incised wound to right lower jaw,
• Incised wound to left upper arm laceration extending to muscles,
• Right hand chopped off at wrist joint.
  

4. Those injuries resulted in the death of the deceased.

The offence – Seriousness of

5. The extent of the injuries noted in the medical report highlights the degree of viciousness with which the prisoner carried out his callous and gruesome attack against a defenceless innocent victim. It was a cowardly and ghastly assault no reasonable thinking person can fully comprehend. The victim was attacked in his deep sleep without warning. He was unarmed and could not possibly defend himself let alone, know the identity of his attacker and the motive.

6. This unlawful killing involved an intention to cause the deceased grievous bodily harm, a crime of murder pursuant to s. 300 (1)(a) of the Criminal Code. The circumstances of the attack fall into the worst type. The maximum penalty for murder, subject to various discretionary sentencing options under s.19 of the Code, is life imprisonment. Section 19 primarily vests in the court, a discretionary power to mete out one or a number of sentencing options permitted by law.

7. In exercising its sentencing discretion, the sentencing authority is obliged to exercise proper restraints so that the punishment imposed is not inordinately low or manifestly excessive. The sentence ought to be just and appropriate, having proper regard to all the circumstances of the case. This necessarily entails apposite balancing of all relevant facts both apparent and latent from the circumstances of the offence, interests of the State and the public it represents, the personal circumstances of the individual offender and the relativity of the seriousness of offence with the other degrees of seriousness of that particular offence.

8. It is trite that, not every case should attract the maximum sentence prescribed by law. The maximum penalty may be called for in the worst case of its kind. In other cases a term of years may be warranted in all the circumstances of the case. The law in vesting that discretionary power in the court recognises the fact that each killing is different and hence, each case must sentenced on its own facts. See, Lawrence Simbe v The State [1994] PNGLR 38. See also, Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.2) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105; John Elipa Kalabus v the State [1988] PNGLR 193; Manu Kovi v The State (2005) SC789.

9. The task of this Court in sentencing the prisoner is made a lot easier by the sentencing guidelines in Manu Kovi v The State and Simon Kama v The State (2004) SC740. The latter suggested:

1. Where there is a guilty plea with no factors in aggravation, a sentence of 12 to 16 years;
   
2. 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 17 to 30 years;
   

100. 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 31years to life;
     

4. On a plea of not guilty, with no other aggravating factors a range of sentences from 17 to 21 years;
   
5. On a plea of not guilty, with aggravating factors other than use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from 22 to 40 years;
   
6. 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 41years to life imprisonment.
   

10. The Supreme Court in Kama v The state made it clear that, "these are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons." The rider, "for very good reasons" must necessarily connote the discretionary power to impose a term of years commensurate with exceptional mitigating factors or serious aggravating factors and the maximum punishment for the worst type of murder killing.

11. In Manu Kovi v The State it was suggested that, murder convictions may be placed in four categories of increasing seriousness, as follows:

1. In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors.
   
2. In a contested or uncontested case, with mitigating factors and aggravating factors, a sentence of 16-20 years imprisonment.
   

100. In contested or uncontested case, with mitigating factors and aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20-30 years.
     

4. In contested or uncontested cases, life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons, substances, execution style killings, killings in full view of the public in that for the safety and lives of others etc.
   

12. This case would fall into the second category of Kama v The State where a sentencing range of 17 to 30 years is suggested for a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence. Manu Kovi v The State in the third category, suggested 20 to 30 years for a contested or uncontested case where special mitigating factors are present.

13. I prefer the wider sentencing range in Kama v The State bearing in mind that, this case may also fall into the category of cases with mitigating factors and aggravating factors and special mitigating factors which weight is reduced or rendered insignificant by the gravity of the offence as suggested in Manu Kovi v The State.

14. The intention here was to cause the deceased serious grievous bodily harm. The resultant death meant the prisoner literally chopped him to death.

15. Every death, whether intentional, accidental or due to other causes is always a very serious matter whenever it occurs. It is particularly repulsive and despicable when death resulted from unlawful killing. The right to life and the protection of the sanctity of life by the Constitution are amongst the many considerations that make murder a very serious crime.

16. The Constitution preserves the essence and sanctity of a God-given life by guaranteeing each man, woman and child the right to full life universally enjoyed by humankind. That guarantee is protected by law in the Criminal Code. No-one has the right to eliminate, exterminate or deprive another person of his right to live. It is also relevant to observe that, once lost; life can never be regained, replaced or substituted.

17. I have expressed these sentiments to underline the seriousness of Philip's conduct. He deliberately set out armed with a bush knife, in search of anyone from Sepik to attack and it did not matter to him, who. It was the least of all considerations whether the victim is innocent or not. The only "wrong" the deceased committed was him being from Sepik. Such indiscriminate choice of victim bespeaks of someone with deluded and deranged mind. Such person is dangerous to the community as he has clearly shown propensity towards violence.

18. I am inclined to conclude that this case calls for a term of imprisonment from 17 to 30 years. This is because in my view, it is not the worst type of killing when all the facts for and against the prisoner are considered and taken into account.

19. I must now consider whether there are matters from the offence and the prisoner's personal circumstances that should weigh in his favour.

20. First, the prisoner's plea of guilty and his conduct subsequent to the commission of the offence are of relevance. Accepting that a plea of guilty in such a serious case as murder and offences committed in circumstances of aggravation will generally have no or little impact on sentence, other factors may add to and give it some effect as a mitigating factor.

21. The first factor I have considered and taken into account is the prisoner's expression of remorse in open court. His expression of remorse does not fall into a routine idiom for want of anything else to say, on allocutus. Philip's conduct immediately following the killing showed him coming to grips with the enormity of his crime. He expressed shock and wept as he related to relatives, the crime he had just committed. Such conduct is tantamount to realisation and acceptance of responsibly.

22. The prisoner then became prayerful. Shortly before or about the time of his arrest he had in his possession a pocket size bible and a personally written prayer of forgiveness and commitment of his life based on the Book of Romans 10:9. His prayer note placed as a page marker in Mark Chapter 11 indicates his possible meditation on verse 24 in which Jesus gives the assurance that, what is asked for in prayer will be given.

23. Furthermore, in his initial confessional statement, the prisoner told a story which shifted some blame to the deceased and a possible defence of provocation. In a subsequent record of interview, he told the police the facts which placed all the responsibility on him. His admissions are significant because no one saw or knew of the attack and the identity of the attacker.

24. In the light of all that, I accept that the prisoner's expression of remorse and contrition is genuine. I believe he has done some soul searching and that he is genuinely repentant. His co-operation with the police and plea of guilty have saved the State time and expenses on a trial that may have proven difficult to run.

25. The prisoner will be given some credit for admitting the killing. His plea itself is also indicative of remorse. Peter has no prior conviction and at the age of 19 years at the time of the killing, he is a first young offender.

26. The attack was impulsive and unplanned. Peter's violent behaviour was precipitated, if not fuelled by stories of harassment and mistreatment of womenfolk from his Tanga Island by settlers of Sepik origin. The complaint of sexual harassment, whether factual or assumed, real or imagined, must have to him, sounded extremely serious to compel his reaction. It was an instinctive reaction to defend his womenfolk. He acted under external influences in what may be termed as provocation by a third party. In the light of concerns of harassment against his Tanga island womenfolk and the victim being from Sepik, his degree of culpability is reduced.

27. Putting all these factors for and against the prisoner together, the prisoner has sufficient mitigating factors in his:

• Plea of guilty.
• Cooperation with police with early admissions
• Expression of remorse
• Background with no prior conviction
• Youthful offender
• External influences amounting to provocation by third party
  

27. These are weighed against the aggravated factors of:

• Direct brutal killing
• Use of weapon
• Sustained attack
• Killing in nature of public execution.
• Killing of unsuspecting sleeping (helpless) victim.
  

28. This case falls within the range of 17 to 30 years. A sentence of 25 years is appropriate allowing for circumstances of aggravation and mitigating factors that are both apparent and latent in all the circumstances of the killing.

29. Philip Ngaufu is convicted and sentenced to 25 years IHL. This term is reduced by the pre-trial period of 1 year and 3 months. The effective sentence to serve is 23 years and 9 months IHL.

Sentenced accordingly.

____________________________________________________________

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