State v Kimam [2011] PGNC 58; N4323 (30 June 2011)

N4323

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR No 770 of 2008

THE STATE

V

DILU KIMAM

Kundiawa: Kangwia, AJ.
2011: 14th & 30th June

CRIMINAL LAW – Sentence – Wilful Murder – use of knife – multiple injuries caused- pierced lung – damaged brain matter - unarmed unsuspecting victim - 30 years at time of offence - no prior convictions - no remorse-strong extenuating circumstance-payment of compensation to relatives of deceased- comparative verdicts for murder and manslaughter cases considered - case falls into second category of Manu Kovi tariffs for wilful murder-prevalence of offence - sentence to reflect deterrence and sanctity of life - sentenced to 20 years imprisonment minus the period spent in custody.

Cases cited:

The State v Billy Kauwa [1994] PNGLR 503
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
The State v Kandap Yakop (unreported judgement of Woods J) N1143
The State v Eliesa Kopeia Madiroto [1997] PNGLR 95
The State v Michael Gende (Unreported Judgement of Sawong J) N1678
The State v Sabu Wari (Unreported Judgement of Mogish J of 29 March 2011)
The State v Harua Marigi Harik (2003) N2332
The State v Kepak Langa (2003) N2462
The State v Mark Porou (2004) N2655
Manu Kovi v The State (2005) SC789
The State v Laura (No.2) [1988-89] PNGLR 98
Anna Max Maringi v The State (2000) SC702
John Elipa Kalabus v The State [1988] PNGLR 193
The State v Yapoko Imbuni & Ors (1998) N1558
The State v Yemola Mealo (2004) N2708
Pauline Pasinuk v The State (SCRA 54 of 2000)
The State v Peter Korak Siwi (2003) N2443
Max Java v The State (2002) SC701

Counsel:

D. Mark, for the State
M. Mumure, for the accused

30 June, 2011

1. KANGWIA AJ, The prisoner appeared before me for sentence by way of S. 576 (3) of the Criminal Code. He was found guilty and convicted on 23 October 2010 of the Wilful Murder of one Jakson Dilu Kua after he pleaded not guilty to the charge. The defence of self defence and provocation raised at trial were found to be not established from the evidence adduced.

2. The prescribed maximum penalty for wilful murder under S.299 (2) of the Criminal Code is death and is in the following terms;

S. 299 WILFUL MURDER

(1)...

(2) A person who commits wilful murder shall be liable to be sentenced to death.

3. The penalty is not mandatory. It is subject to the courts discretion pursuant to S. 19 of the Criminal Code which provides:

19. Construction of provisions of code as to punishments

(1) In the construction of this code, it is to be taken that, except when it is otherwise expressly provided-

(aa) "a person liable to death may be sentenced to imprisonment for life or for any shorter term"

4. The facts found on the conviction seem to be these. The prisoner and the deceased had prior differences arising out of an alleged rape or adulterous affair by the deceased on the prisoner's wife. There was to be a village court hearing into one of their differences to which the deceased failed to turn up. After the deceased failed to appear in court the second time the prisoner went and found the deceased playing cards with others.

5. The prisoner attacked the deceased with a grass knife on the head. When the deceased stood up to defend himself he stabbed him in the chest with the same grass knife. The deceased was found to be unarmed and was caught by surprise. The deceased gave chase to retaliate but fell and died some minutes later from loss of blood.

6. The post mortem report concluded that the deceased died from severe Haemopnumothorax due to the open penetrative stab wound to the right anterior chest, piercing the lung tissue. Compounded to that was the associated compound fracture of his left temporal skull, resulting in severe brain damage. There were two fatal injuries inflicted on the deceased.

7. On his allocutus the prisoner asked for leniency with a minimum jail term as he was a first time offender. He stated that the deceased started fighting with him and they had a confrontation resulting in death. The deceased was the cause of the fight. After the homicide his property was destroyed and his family were physically attacked. He stated that he had respected the law and remained in custody even though there were two mass breakouts at the Barawagi Jail. He is now a reformed person after being in custody all this time.

8. The prisoner was aged 30 years when he committed the offence. He is now 33 years old and married with 3 children aged 7, 5 and 3. He is the eldest of seven children and both his parents are living except that his father is disabled. The prisoner is a villager who comes from a good family background and was educated up to grade 10 at Kerowagi High School. He surrendered to police after his relatives paid compensation and since then had cooperated with police during their investigation and has been in custody since April 2008.

9. Mr. Mumure submitted on his behalf that compensation was paid to the deceased's relatives. A Village Court Settlement Form showed that K10, 000.00 and 19 pigs with a total value of K18, 200: 00 was paid on 7 August 2008 despite a demand for K25, 000: 00. Although there is no evidence of how much the prisoner contributed, I accept that the payment of compensation operates as a mitigating factor in line with the State v Billy Kauwa [1994] PNGLR 503 at 508 where Injia AJ (as he then was) determined that compensation payment over a death is a mitigating factor.

10. Compensation is a common means of settling animosity between disputing parties in the Highlands and many other parts of the country. Upon acceptance of compensation by a deceased's relatives the offender is deemed absolved of any obligation for the death apart from any criminal proceedings against him. The offender would be deemed acceptable into normal society without the cloud of indebtedness hanging over him. Peace is restored through the payment and acceptance of compensation. Where compensation is not paid or offered but not accepted as adequate, troubles would flare up. Animosity still exists against the offender and his relatives as a whole until adequate compensation is offered or paid. The ultimate success to restoring peace between disputing parties through compensation over a death
should therefore operate in favour of the accused, as a mitigating factor.

11. Mr. Mumure presented a document as reference of good character and conversion to the SDA church. His generally good character, his respect for the law while in custody and the cooperation given to police are factors I find in his favour.

12. Also presented was another document dated 12 October 2010 showing treatment to injury to his arm while in custody. I am unable to ascertain why the latter document was tendered. If it was to maintain his defence of self defence I find it far belated as that defence was found not established on conviction .He expressed no remorse but maintained that the deceased was at fault for starting the fight, even after he was convicted. I give him no credit for this in mitigation.

13. The destruction to his property and injury to his family as presented in his allocutus cannot operate as a mitigating factor. These are in my view consequences of falling out of line with the law.

14. The offence committed was not a pre meditated attack. There is no evidence that the prisoner planned or schemed such an attack although differences between the prisoner and the deceased existed prior to the commission of the offence. However, it is quite possible that the prisoner went out in search of the deceased at the usual gathering place after he failed to attend the village court. This possibility seems real as the attack occurred not long after the village court disbanded for the day. Having said that, credit must go to the prisoner that this was not a pre meditated attack.

15. Counsel for defence submitted that there was provocation in the non legal sense. The deceased had allegedly raped his wife and then kicked her in the buttocks in public view. When he tried to intervene the deceased assaulted him. This chain of events caused the prisoner to initiate court proceedings in the village court but the deceased failed to appear on two occasions. On the second occasion that the deceased was absent from court, the prisoner found him playing cards with others. The deceased's failure to attend court was not because of other pressing matters. He had deliberately stayed away from court. This was sufficient to make him angry.

16. The prisoner acted swiftly and chopped him first on the head. When the deceased stood up to defend himself he stabbed him in the chest. His deliberate absence from court attendance in my view was not only an affront to the established legal processes but intended to belittle the prisoner. I consider that the prisoner did have a reason to act the way he did. De-facto provocation was present under those circumstances. The actions and or reactions of the prisoner in my view give rise to the existence of an extenuating circumstance sufficient to mitigate the seriousness of the offence.

17. I find the following to be aggravating factors.

1. He pleaded not guilty but was found guilty after trial. By taking this stance he caused the state and the court to incur expenses and waste time. He gets no credit for it which would usually be available to one who pleads guilty.
   
2. The use of a grass knife to chop and then stab the deceased added gravity to the circumstances of aggravation. It manifested the will and determination of the prisoner to cause serious injury or death although his actions seemed unpremeditated.
   
3. The nature and multiplicity of injuries found on the deceased in the post mortem report indicated the viciousness of the attack. The severe lacerations inflicted on the head which resulted in damage to the skull and brain matter identified it with a very strong application of force. The second penetrating stab wound on the right chest resulted in piercing of the lung. The fatal wounds inflicted on the deceased demonstrated a strong desire to arrive at nothing but immediate death.
   
4. The deceased was unarmed and defenceless when struck with the fatal blows. At that moment an innocent and unsuspecting life was suddenly plucked out with no regard to the dignity and sanctity of human life.
   
5. There is no motive for the killing.
   

18. To determine an appropriate sentence for this prisoner all the factors referred to must be considered in line with established principles and sentencing guidelines.

19. It is a general principle of law that the maximum prescribed penalty is reserved for the worst type or category of each offence. See Goli Golu v the State [1979] PNGLR 653; Avia Aihi v State (No. 3) [1982] PNGLR 92; Ure Hane v State [1984] PNGLR 105. In line with the general principle expounded in these cases the maximum prescribed penalty of death must be reserved for the worst category of wilful murder cases.

20. Mr. Mark concurred in submission with defence counsel that the present case does not fall into the worst type of wilful murder case attracting the death penalty or life imprisonment and I must agree. In agreeing to counsels suggestions I now have to impose a sentence other than a sentence of death or life imprisonment. What then would be an appropriate sentence?

21. The courts have delivered varying decisions on wilful murder cases for the obvious reason that the determination of an appropriate punishment for each case would require an exercise of discretion having regard to whatever the competing factors are and the seriousness and gravity of the offence. In many sentences for wilful murder cases after 1984, the courts have either applied or referred to the sentencing guidelines in Ure Hane v The State (supra). In that case the Supreme Court on appeal against a sentence of life imprisonment substituted it with a sentence of 15 years. It was a case where a young lawyer stabbed his wife thirty times in his office after everyone had left work.

22. In The State v Kandap Yakop (unreported Judgement of Woods J delivered on 03 March 1993), (1993) N1143 the accused was sentenced to life imprisonment for wilful murder. The court there found no motive for the killing. It was held that there were no extenuating circumstances which could lead the court to consider anything less.

23. In The State v Eliesa Kopeia Madiroto [1997] PNGLR 95 the accused was sentenced to life imprisonment for wilful murder. The accused had brutally attacked the deceased with his hands and rocks repeatedly. A de facto provocation raised was held not to lie as he was held to have set out in a murderous rage to kill the deceased.

24. In The State v Michael Gende (unreported judgement of Sawong J delivered on 20 November 1997), (1997) N1678 the accused was convicted of wilful murder on circumstantial evidence and sentenced to 25 years with deductions for time spent in custody. It was considered that the death although not pre-meditated had multiple wounds inflicted on the body resulting in instant death.

25. The principles of sanctity and value of human life are also factored into the varied determinations for wilful murder cases. In the State v Sabu Wari CR:131 of 2009 (unreported National Court Judgement of Mogish J delivered on 29 March 2011,the accused was sentenced to 19 years imprisonment for wilful murder with deductions for time spent in custody. The defendant in that case had inflicted multiple stab wounds to his wife which resulted in her death. It was stated that the court was compelled to impose a deterrent sentence to reflect the sanctity of human life.

26. Since the death penalty was reintroduced in 1991 courts have imposed the maximum prescribed penalty of death on a number of cases. See for example The State v Harua Marigi Hariki (2003) N2332; The State v Kepak Langa (2003) N2462 and The State v Mark Poroli (2004) N2655 among others. Whether these cases are the worst category of wilful murder cases warranting the death penalty remains to be seen. It is understood that appeals have been mounted against the severity or otherwise of the sentences.

27. Then there is the consideration of continuing societal change and prevalence of the offence requiring issues of public interest to be included in determinations so that decisions reflect society's recent demands as opposed to aged sentencing guidelines and tariffs.

28. The Supreme Court in Manu Kovi v the State (2005) SC 789 revisited the sentencing tariffs and guidelines for wilful murder in Ure Hane v The State (supra), tariffs for murder cases in Laura (No. 2) [1988-89] PNGLR 98 and manslaughter tariffs suggested in Anna Max Maringi v The State (2002) SC702.

29. While confirming a sentence of life imprisonment for the prisoner in that case the court stated that the guidelines needed to be changed to reflect circumstances of the current time and the reintroduction of the death penalty for wilful murder. The court made suggestions as to what would be considered as those that fall under the worst category of homicide cases and those that would be considered as not so worse.

30. For wilful murder cases the Supreme Court in Re Manu Kovi (supra) suggested the following sentencing tariffs:

1. Term of Years: 15 – 20 years
   

In an uncontested case, in a case with ordinary mitigating factors with no aggravating factors, we suggest a starting point of 15 years up to 20 years.

Sentences below 15 years should be rarely imposed except in exceptional circumstances with special extenuating circumstances and special mitigating factors

2. Terms of year: 20-30 years
   

In a contested or uncontested case- with mitigating factors and with aggravating factors a sentence in the range of 20 to 30 years is appropriate. Examples include the following types of cases;

1. No motive for killing
   
2. Multiple wounds resulting in instant death
   
3. Vicious attack on innocent person resulting in fatal wounds inflicted on vulnerable part of the body
   
4. Deliberate shooting with gun following argument
   
3. Life Imprisonment
   

Life imprisonment which before introduction of the death penalty was the maximum punishment was imposed in many cases. In Hure Hane v the State (supra) Bredmeyer J set out a useful categorisation of the different kinds of wilful murder in which he recommended (the then) maximum penalty of life imprisonment as follows;

1. A wilful murder done in the course of committing a crime of violence such as theft, robbery, breaks and enters or rape.
   
2. A wilful murder of a policeman or a prison warder acting in the execution of his duty
   
3. A wilful murder done in the course of or for the purpose of resisting or avoiding lawful arrest or assisting in an escape from lawful custody
   
4. Deliberate and vicious killing of law enforcement officers whilst on duty
   
5. Payback killing of a completely innocent man
   
6. Any second or third murder
   
7. Any murder where the offender has a long record of violence such that he is likely to commit such offences in the future.
   
8. Any murder of the Governor General, the prime minister, the leader of the opposition, the speaker of the National Parliament, the chief justice, a visiting prime minister, the Pope, Bishop or other VIPs
   

Since Hure Hane's case (supra) life imprisonment has also been imposed for the following types of wilful murder cases-

1. Brutal and unexplained killing of innocent children or young school students as in John Elipa Kalabus v the state [1988] PNGLR 193
   
2. Prisoner of violent character with previous conviction for manslaughter as in Re Manu Kovi (Supra)
   
3. Payback multiple killing in ambush attack killing three(3) members of the same family as in The State v Yapoko Imbuni & Ors (1998) N1558
   

Life imprisonment is suggested in contested or uncontested cases with special aggravating factors such as brutal horrific killing of an innocent or harmless person in cold blood. The gravity of the offence is such that any mitigating factor is a nugatory.

4, Death Penalty

The maximum punishment of death must be reserved for the worst case of wilful murder

31. In lesser homicide cases of murder and manslaughter the courts have imposed sentences which fall within the lower range of wilful murder tariffs in Manu Kovi v the State. The facts of some of these cases have similarities to the present case and their sentence ranges are appropriate for consideration in arriving at a suitable sentence for the prisoner.

32. In The State v Yemola Mealo (2004) N2708 the accused was sentenced to 22 years on a guilty plea for murder. The accused in that case used an axe to cut the deceased on the neck resulting in instant death.

33. In Pauline Pasinuk v the State (SCRA 54 of 2000) (unnumbered Supreme Court judgement dated 26 November 2001) the prisoner's sentence of 18 years on a murder charge for stabbing a school girl was confirmed on appeal. The sentence was described as within range but somewhat lenient given the serious nature of the offence.

34. In the State v Peter Korak Siwi (2003) N2443 the accused was sentenced to 16 years on a guilty plea to murder. The accused in that case stabbed his wife with a long dagger like knife on the armpit area which pierced the lung killing her almost instantly.

35. In Max Java v the State (2002) SC701 a sentence of 20 years on a guilty plea for manslaughter was confirmed on appeal. It was a pre-meditated attack in which the deceased was cut with a bush knife on the stomach and killing him instantly.

36. The present case does not fall into the category of cases attracting a penalty of death or life imprisonment given the similar types of cases referred to above and the sentences imposed. It would be inconsistent with the sentencing ranges referred to and an abuse of sentencing discretion to impose the death penalty or life imprisonment for this prisoner. The converse effect would be to defeat the purpose of sentencing in general to impose a non custodial sentence.

37. The circumstances of this case demand a custodial sentence. Both counsels in submission proposed that this case falls into the first category of wilful murder sentences suggested in Manu Kovi v the State (supra) with a starting point of 15 years imprisonment. With respect I must reject both counsels' suggestions in submission on penalty.

38. This was a case involving a vicious attack on vulnerable parts of the body. A weapon was used to inflict two wounds. The wounds reflect the application of enormous force resulting in the damage to brain matter and piercing of a lung respectively. These wounds indicate a strong desire to kill the deceased. There was no pre meditation but if there was then it was small and quick. The deceased was unarmed and defenceless when attacked. There was no motive for the killing. Under those circumstances, this case falls into the second category of wilful murder tariffs suggested in Manu Kovi v the State (supra) that carries a sentencing range of 20 and 30 years which I adopt as appropriate for this case.

39. I have considered that elements of de facto provocation were present. The presence of provocation in the non legal sense is sufficient to mitigate the seriousness of the offence. The prisoner's relatives paid compensation to the deceased's relatives. He is a first time offender. These factors also weigh greatly in his favour.

40. The offence is very serious in nature. A life was prematurely terminated presumably for a matter that could have been settled amicably had patience been allowed to persist. The prisoner reacted violently and that led to the unfortunate death. There was no respect for the dignity and sanctity of life of a fellow human being.

41. Unlawful Killing is prevalent in this country. Lives seem to be taken for granted as a commodity that can be destroyed at will. The court must carry out its duty imposed by S. 35 of the Constitution in the face of a person's life having been terminated at the hands of this prisoner. No amount of imprisonment imposed or compensation paid will restore the lost life. However the sentence imposed must be with the aim of deterrence and the preservation of the sanctity of life in general. Other would be offenders must be reminded that courts will be stern with those who take the life of others in whatever shape or form.

42. In light of what I have stated and in line with the sentencing guidelines referred to above coupled with comparative verdicts cited, I am of the view that a sentence of 20 years is appropriate for this offence.

43. I therefore sentence the prisoner to 20 years imprisonment. The period of three years and two months already spent in custody awaiting trial shall be deducted from the head sentence. The prisoner will serve the balance of 16 years and 10 months at Barawagi Correctional Institution.

________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused