State v Laki (2) [2011] PGNC 238; N4905 (16 March 2011)

N4905

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 802 OF 2009

THE STATE

V

PONDROS LAKI (NO 2)

Bialla: Kawi J
2010: 10th November
2011: 16th March

CRIMINAL LAW – Practice and Procedure – Accused found guilty of Wilful murder – Sentencing in homicide cases – Sentencing guidelines set out in Manu Kovi –v– The State [2005] SC 789, and Simon Kama –v– The State (2004) SC 704, considered and applied. Aggravating factors – Use of a lethal weapon, a kitchen knife to commit the murder – Accused running away after committing murder is another significant aggravating factor – Weight of aggravating factors significantly reduced the weight of mitigating factors – Wife's behavior and attitude a major cause of instability in the marriage.

Facts

The accused was found guilty after a trial and convicted for wilfully murdering his wife contrary to Section 299(1) of the Criminal Code. The accused was then remanded in custody to be sentenced. In sentencing the prisoner;

Held;

(1) A strong deterrent custodial sentence is warranted here in the circumstances, a sentence of 25 years jail is appropriate.

(2) Expression of remorse and saying sorry is meaningless unless it is accompanied by some tangible expression of that in terms of saying sorry to the victims of the offence and making it right with them.

(3) A prisoner should rarely be given a suspended sentence in homicide cases. This is because by its very nature, homicide cases involve a premature and senseless termination of precious human life, when a prisoner is not the author of that life.

Cases cited

Allan Peter Utieng v The State [2000] SCR 15 of 2000
Aloises Peter Iboro v The State [2001] SC 67
Avia Aihi v The State (No. 3) [1982] PNGLR 96
Goli Golu v The State [1979] PNGLR 653
Wellington Belawa v The State [1988-89] PNGLR 496
Manu Kovi v The State [2005] SC 789
Simon Kama v The State [2004] SC 740
The State v Moses Michael – Unreported

Counsel

Mr F. Popeu, for the State
Mr P. Paraka, for the Accused

DECISION ON SENTENCE

10th March, 2011

1. KAWI J: Introduction: Pondros Laki was found guilty and convicted of the wilful murder of his wife, one Veronica Pondros under Section 299(1) of the Criminal Code.

2. Following his conviction he was then remanded in custody awaiting to be sentenced. And here is my judgment on sentence.

Facts

3. I will re-state the facts on the basis of which you were found guilty and convicted. On the 24th of January 2009, your wife and her friend one Theresa Julius returned from an all night out disco held at Ulamona. They were dropped off on the road leading to Area 8, Bialla.

4. They were walking to their houses when you confronted them. An argument then erupted between you and your wife which led to a scuffle. During this scuffle you assaulted and punched your wife and she fell to the ground on top of her friend. As she lay on the ground, you took out the knife which she had concealed in the back pocket of her Jeans and which had fallen off from her when she fell, and you used that knife to stab her on the lower back. At that time you said that you did not intend to stab your wife to death, rather you only meant to have what you described as a one touch only with the knife, but she accidently died.

5. After stabbing your wife you threw the knife away, and then instead of staying back to help her seek medical assistance you ran away.

Issue

6. The sole issue for determination by the court is what is the sentence that the court should impose upon you?

7. In determining this issue, the court is guided by quite a number of principles. And one of the principles I take into account is that I must take into account mitigating factors operating in your favour and the aggravating factors operating against you. Some aggravating factors may be mildly aggravating while others may be strongly aggravating. The same goes for mitigating factors.

Allocutus

8. When the allocutus was administered upon you, you expressed what I considered as genuine sorrow and begged the court for mercy and leniency in sentencing you. I have also taken into account those matters you raised in your allocutus.

Pre-Sentence Report

9. A Pre-Sentence Report on the prisoner was carried out by the Probation Officer from Kimbe. The Report sought the views of the accused's relatives as well as relatives of the deceased, particularly her parents. The family and relatives of the deceased asked the court to do two things:

(a) impose a stronger term of imprisonment upon you.

(b) Order you to pay compensation to the relatives of the deceased.

10. Other then this, the Report outlined factors which really were in your favour. One thing which I note is that you are not considered to be a violent man in your community. Neither were you classified as being a threat to the other members of your community.

Mitigating Factors

11. Your counsel submitted factors that I should take into account when computing your sentence. These are called mitigating factors and they operate to assist you in reducing your sentence. Factors operating in your favour are:

(a) You have a 7 year old adopted son who is now living with your old mother. Your 7 year old son is now ready to go to school and in allocutus you told the court that there is no one to pay for his school fees and cater for his other needs. You also told the court in allocutus that your mother is quite old and can't really fend for herself and with your adopted son now staying with her, this will make life more difficult and unbearable for her.

(b) I take into account a factor mentioned in the Pre-Sentence Report in your favour which is that you are not a violent person. Neither can you be classed as a threat to your community of Area 8 and the small township of Bialla.

(c) You expressed what I consider to be very genuine remorse and begged the court for leniency when sentencing you. In fact right throughout the entire court proceedings, you showed a demeanor of expressing remorse and you were quite sorry for what you did to your wife.

(d) Coupled with your expression of showing genuine remorse, you paid compensation of K1,000.00 to your late wife's family.

The Supreme Court said in Allan Peter Utieng v The State [2000] SCR 15 of 2000 Unnumbered and Unreported Judgment delivered in Wewak on the 23rd of November 2000, that an expression of sorrow is meaningless unless it is accompanied by some tangible expression of that in terms of saying sorry to the victims of the offence and making it right with them. You did that by making a compensation payment of K1,000.00 to your late wife's relatives.

(e) In allocutus you apologized to the court and the family and relatives of the deceased. Furthermore you asked the court to give you a suspended sentence. This is to allow you to go home and reconcile with the family and relatives of the deceased. I note that the point you made here is an important point for the reason that expressing remorse and saying sorry is absolutely meaningless if it is not accompanied by physical expression of remorse and reconciliation.

(b) You had a motive to free yourself from the "eight years of living in hell." That is the reason why you killed your wife as she was the source of so much of the instability in your marriage relationship.

(c) You used a dangerous lethal weapon namely, a sharp pointed kitchen knife to stab your wife.

(d) Your statement in evidence namely "I meant to have a one touch only on her," is an indication of your intention and strong desire to inflict grievous bodily harm upon your late wife. You had intended to cause some serious injuries upon her so she could learn her lesson. It did not matter to you whether she suffers or dies from any wounds you inflict upon her.

(e) After stabbing her you threw away the knife and ran away, leaving your wounded wife to fend for herself. You in fact showed no mercy at all and concerns for your badly wounded wife by running away from her. You showed just who you were; a coward.

(f) The court only found you guilty and convicted you after a long trial. There were clear unequivocal admissions made by you in your record of interview. These admissions were sufficient to warrant your case coming before me as a plea matter.

Instead despite the clear evidence against you, you opted to waste the court's time by running a trial. If your had pleaded guilty, you would have saved the court a lot of time and expense in determining your case.

This factor will be weighed against you. When I balance out all these factors against each other, I find that the factors operating against you significantly out weigh and reduce the weight and significance of all your mitigating factors.

Sentencing Tariffs

12. One of the well established principles of law in our jurisdiction is that the maximum penalty prescribed by legislation itself is always reserved for the cases categorized as "worst offenders" or a "worst category case".

13. Many cases in our jurisdiction have acknowledged and applied this principle of law. One such case is the Supreme Court decision in the case of Aloises Peter Iboro v The State [2001] SC 676.

14. That was a case where the appellant appealed a life sentence imposed by the National Court for the brutal killing of a young woman after her abduction and rape. Amet CJ, Gavara-Nanu and Kandakasi JJ expressed this principle as follows:

"It is a well accepted principle in our jurisdiction now, that the maximum penalty prescribed by the legislation should be reserved for the "worst type" or worst category of the offence under consideration. This has been made abundantly clear in the context of wilful murder cases."

15. For example, the Supreme Court in Avia Aihi v The State (No. 3) [1982] PNGLR 96 referred to its earlier decision in Goli Golu v The State [1979] PNGLR 653 where it was said:

"In fact this court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instance of a particular offence."

16. This principle of law has its genesis in the sentencing discretion vested in court by Section 19 of the Criminal Code. Section 19 actually gives the court the discretion to impose a lesser penalty upon an offender if the factual circumstances of a case do not establish a case from being classified the "worst category case."

17. How I exercise that discretion depends upon the factual circumstances of a case under scrutiny. More importantly the court will look at the factual circumstances of how you perpetrated this crime, the mitigating factors operating in your favour and the aggravating factors operating against you.

18. In this case you were found guilty and convicted for wilful murder under Section 299(1) of the Criminal Code.

19. The maximum penalty fixed by Parliament to punish offenders found guilty of wilful murder is life imprisonment or death. None of the aggravating factors present in your case is of such a weight as to convince me that your case can be categorized belonging to the worst case category. Neither can I classify you as a "worst offender." Your case is simply an ordinary domestic killing case which I do not view as a very serious homicide case.

20. Judges often refer to a starting point whether they are determining a sentence. By that they mean a good reference point. Usually a good reference point is a sentence in a previous case, against which the case being dealt with can be assessed. For instance in misappropriation cases a convenient starting point case has always been the case of Wellington Belawa v The State [1988-89] PNGLR 496.

21. Depending on the circumstances of a case, Judges then assess whether the case being dealt with is more or less serious than the starting point case. If it is, to what extent is it more serious or less serious?

22. In this case both counsel were very helpful in their respectful submissions. Both cited to me comparative cases which sets out sentencing guidelines in homicide cases. One case which both learned counsel relied upon is the case of Manu Kovi v The State [2005] SC 789 where the Supreme Court (Injia DCJ, Lenalia and Lay JJ) set out sentencing guidelines or tariffs in homicide cases. For completeness sake, I will set out these guidelines.

Category 1
Plea.
Ordinary cases.
Mitigating factors with no aggravating factors.

Sentencing Range – 12-15 years
No weapons used.
Little or no pre-planning.
Minimum forced used.
Absence of strong intent to do Grievous Bodily Harm.

Category 2
Trial or plea.
Mitigating factors reduced weight or rendered insignificant by gravity of offence.

Sentencing Range – 16-20 years
Pre-planned – victim attack.
Strong desire to do Grievous Bodily Harm.
Some pre-planning.
Some elements of viciousness.

Category 3
Trial or plea.
Mitigating factors with aggravating factors.

Sentencing Range – 20-30 years
Pre-planned – victims attack.
Strong desire to do Grievous Bodily Harm.
Dangerous or offensive violence committed.

Category 4 – Life Imprisonment
Trial or plea.
Special aggravating factors.
No extenuating circumstances.
No mitigating circumstances or mitigating factors rendered completely insignificant by the gravity of the offence.

Sentencing Range – Life Imprisonment
Pre mediated attack.
Brutal killing, in cold blood.
Killing of innocent, harmless person.
Killing in the course of offence.
Complete disregard for human life.

23. Another useful case where the Supreme Court also set sentencing guidelines in homicide cases is the case of Simon Kama v The State [2004] SC 740.

24. The Supreme Court (per Sevua, Kandakasi and Lenalia JJ) provided the following sentencing guidelines:

1. Where there is a plea with no factors in aggravation, a sentence of twelve (12) to sixteen (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 ranges of seventeen (17) to thirty (30) years.

3. Where there is a guilty plea with aggravating factors where there is a use of firearms or other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of 31 years to life imprisonment.

4. On a plea of not guilty, with no other aggravating factors, a range of sentences from seventeen (17) to twenty-one (21) years.

5. 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.

6. Where there is a not guilty plea with aggravating factors where there is a use of firearms 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.

25. Their Honours in that case went on to say that "a trial judge has the discretion to impose a sentence below these guidelines where these exists very good mitigating factors such as a very young person persuaded by others to commit the offence falling short of the defence of compulsion to commit the offence or for other very good reason."

26. In submissions your counsel, Mr Paraka submitted that this case falls within the first category of the sentencing range reflected in the Manu Kovi case.

27. He therefore submitted that I should seriously consider imposing a sentence in the range of 12-16 years. He submitted that a sentence of 13 years would be sufficient.

28. Accepting Mr Paraka's submission will of course mean discounting the presence of the very strong aggravating factors especially the use of a lethal weapon in this case, and this court will never disregard the use of a lethal weapon to commit murder.

29. State Prosecutor Mr Popeu on the other hand, submitted that Category 1 is inappropriate in the circumstances of this case. He submitted that the mitigating factors in this case have been rendered completely insignificant by the gravity of this offence, and the other aggravating factors. He submitted that a more useful sentencing tariff would be category 2 or 3 in Manu Kovi's case. He submitted that the accused should be sentenced to a sentence ranging from 20-30 years in prison.

30. I fully agree with Mr Popeu's submission. In my view, the aggravating factors here render completely insignificant the mitigating factors which defence counsel has relied upon.

31. Following the sentencing criteria set down by the Supreme Court in Manu Kovi's case, I am of the view that an appropriate sentencing range would be category 3. Category 3 attracts a sentencing range of 20-30 years imprisonment.

32. If I go by the categories set by the Supreme Court in the case of Simon Kama v The State your sentence would fall in the 6th category which attracts a sentence range of forty-one (41) years to life imprisonment.

33. In my view, your case calls for a deterrent sentence to be imposed. I will not consider giving you a suspended sentence. In my view a prisoner should rarely be given a suspended sentence in a homicide case. This is because homicide cases by its very nature involve a premature and senseless termination of precious human life, when a prisoner is simply not the author of that life. See The State v Moses Michael – Unreported Judgment of Kawi J dated 9th November 2010.

34. In my view a sentence of twenty-five (25) years is appropriate to be imposed upon you which I now fix.

35. Taking into account the twenty-three (23) months you spent in custody, I sentence you to twenty-two (22) years in hard labour.

36. You are ordered to serve your sentence at the Lakieamata Jail outside Kimbe.

________________________________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers : Lawyer for the accused