N4256

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1543 OF 2010

THE STATE

V

JACOB AKU MATAI

Madang: Cannings J
2011: 21, 23 March, 21 April

SENTENCE

CRIMINAL LAW – sentencing – murder, Criminal Code, Section 300(1)(a) – sentence after guilty plea – offender killed his brother-in-law by cutting him with bushknife – sentence of 22 years.

The offender pleaded guilty to murdering his brother-in-law by cutting him with a bushknife several times on various parts of his body, while the deceased was working in a plantation. It was a vicious attack, arising out of a long running tension between the offender and the deceased.

Held:

(1)	The starting point for sentencing for this sort of murder (vicious attack, strong intent to do grievous bodily harm, weapon used is 20 to 30 years imprisonment.

(2)	There were a number of mitigating factors (eg long running tension between the offender and the deceased, some element of de facto provocation at time of incident, guilty plea) but the viciousness of the attack and the use of the bushknife demanded a heavy sentence.

(3)	A sentence of 22 years imprisonment was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Julius Kembu CR No 288/2009, 23.04.09
The State v David Solomon Lingen CR No 1292/2009, 20.11.09

SENTENCE

This was a judgment on sentence for murder.

Counsel

A Kupmain, for the State
M Mwawesi, for the offender

21 April, 2011

1. CANNINGS J: This is the decision on sentence for Jacob Aku Matai, a 30-year-old man, who has pleaded guilty to murder and has been convicted of that offence under Section 300(1)(a) of the Criminal Code. The victim is his 28-year-old brother-in-law, Manuel Rebis. The offence was committed in the late afternoon of Sunday 23 May 2010 in a coconut plantation at Siar village, 10 km from Madang, where both the offender and the deceased lived. The offender approached the deceased while he was with his children collecting coconuts and cut him on his neck, head and other parts of the body with a long bushknife. The deceased died instantly. The offender did not intend to kill the deceased but did intend to cause him grievous bodily harm.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to address the court. He said:

I killed my brother-in-law because he caused my sister to bear him six children but he did not look after her or the children and I was always called upon to care for them. He used to smoke marijuana and go around with other women. He got another woman pregnant and my sister claimed compensation in the Village Court but this did not solve the problem. He did not build a house for his family and used to leave them for long periods and then come back. He did not pay for his children's school fees. On the day of the incident I found him in my coconut block with his children and when I questioned him why he was not in his own block he reached for his bushknife and wanted to attack me. So I cut him. I did not mean to kill him. I just did what I did after many years of frustration. I know I am wrong and I apologise for what I did. I ask for a non-custodial sentence so that I can look after my own children and continue to look after my brother-in-law's children.

OTHER MATTERS OF FACT

4. 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 (2006) SC890). I will take into account the long running tension between the offender and the deceased and I accept that there was some element of de facto provocation at the time of incident due to the deceased reaching for his bushknife and the offender's belief that he was about to be attacked by the deceased.

PRE-SENTENCE REPORT

5. Jacob Aku Matai is 34 years old. He has lived all of his life at Siar. He is of mixed Madang-Morobe parentage and maintains close ties with his father's village of Sio in the Wasu area of Morobe Province. His father died in 1991. He is not married but has two adopted children and has also assisted his sister look after her six children. He has a grade 10 education and has never been formally employed. His health is sound. He is a subsistence farmer and villager. He does not have any history of violence and is regarded in the village as an introvert. There has been talk of compensation being paid by his relatives to those of the deceased but no firm plans have been made. The deceased's elder brother says that the deceased's family want to see the offender punished for the brutality he inflicted on the deceased. They support a lengthy custodial sentence. The report concludes that the offender may be suitable for probation after serving some period in custody.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Mwawesi submitted that the circumstances of this case – some aggravating factors as well as mitigating factors – bring it within category 2 of the Supreme Court murder sentencing guidelines from Manu Kovi v The State (2005) SC789. Although there was an element of viciousness in the offender's actions the sentence should not exceed 20 years imprisonment.

SUBMISSIONS BY THE STATE

7. Mr Kupmain did not agree that this was a category 2 case. He submitted that because of the viciousness of the attack, which showed signs of pre-planning, it was a very serious case – a cold-blooded killing – which brought it within category 4 of the Kovi guidelines. Without the guilty plea, a sentence of life imprisonment would be warranted. He conceded, however, that because of the guilty plea a lengthy sentence in terms of years should be imposed.

DECISION MAKING PROCESS

8. 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 sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. 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?

10. I will apply the sentencing guidelines for murder in the leading Supreme Court case of Manu Kovi v The State (2005) SC789, which are set out in the following table:

SENTENCING GUIDELINES FOR MURDER
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	

11. I do not accept Mr Mwawesi's submission that this is a category 2 case. The post-mortem report and the photos taken by the police photographer at the crime scene (which form part of the depositions considered by the court) show that there was a strong desire to do grievous bodily harm with an offensive weapon. I do not uphold Mr Kupmain's submission that it was a premeditated attack or a cold-blooded killing. I conclude that this is a category 3 case. Therefore the starting point range is 20 to 30 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. Two recent cases I have decided provide useful precedents. In the Kimbe case of The State v Julius Kembu CR No 288/2009, 23.04.09 the offender pleaded guilty to the murder of a man who he believed had threatened his wife, had sex with her and made her pregnant. The offender, together with four others, staged a planned attack on the deceased who was busy off-loading cargo from a vehicle when he was attacked. The offender cut him on the back with a bushknife and the deceased ran towards the beach. The offender and the others chased him, with their knives. The wounds inflicted on the deceased were serious and he died through loss of blood from those injuries. It was dealt with a category 3 case according to the Kovi guidelines but I imposed a sentence of 18 years, which was below the starting point range of 20 to 30 years because of the strong element of de facto provocation and evidence of reconciliation between the offender and the deceased's relatives.

13. In the Wewak case of The State v David Solomon Lingen CR No 1292/2009, 20.11.09 the offender pleaded guilty to the murder of a man who had over a long period ill-treated him. The offender approached the deceased and attacked him with a bushknife on the right side of the neck and face. The wounds inflicted on the deceased were serious and he died through loss of blood from those injuries. It was dealt with a category 3 case according to the Kovi guidelines but I imposed a sentence of 18 years, which was below the starting point range of 20 to 30 years because of a strong element of de facto provocation. It was also significant that the offender acted alone, not in a group.

STEP 4: WHAT IS THE HEAD SENTENCE?

14. To determine the head sentence I will focus on the starting point range of 20 to 30 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be below the starting point range. The more aggravating factors present, the more likely the head sentence will be above the starting point range. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

15. Mitigating factors are:

•	the offender acted alone;
•	there had been a long running tension between the offender and the deceased;
•	there was some element of de facto provocation at the time of the incident due to the deceased reaching for his bushknife and the offender's belief that he was about to be attacked by the deceased;
•	he pleaded guilty;
•	he is a first-time offender;
•	he expressed remorse.

16. Aggravating factors are:

•	it was a vicious attack, involving multiple wounds to vulnerable parts of the body;
•	there was a strong desire to inflict grievous bodily harm;
•	the deceased was with his children at the time of the incident;
•	the use of a bushknife, which is an offensive and lethal weapon.

17. There appear to be more mitigating factors than aggravating factors, however the viciousness of the attack and the use of the bushknife demand a heavy sentence. This case is more serious than the cases of Kembu and Lingen, both of which resulted in sentences of 18 years. The appropriate sentence is 22 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. 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, which is one year, 11 months.

STEP 6: SHOULD ANY PART OF THE SENTENCE BE SUSPENDED?

19. There is talk about payment of compensation in the pre-sentence report but insufficient evidence of tangible progress. The favourable matters in the pre-sentence report have already been taken into account for the purposes of fixing the head sentence. I do not find a good case for suspension. Therefore no part of the sentence will be suspended.

SENTENCE

20. Jacob Aku Matai, having been convicted of the crime of murder under Section 300(1)(a) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	22 years	
Pre-sentence period to be deducted	1 year, 11 months	
Resultant length of sentence to be served	20 years, 1 month	
Amount of sentence suspended	Nil	
Time to be served in custody	20 years, 1 month	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.
__________________________

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