State v Bake [2012] PGNC 246; N4890 (19 June 2012)

N4890

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 875 OF 2008

THE STATE

V

MICHAEL BAKE

Buka: Kawi J
2012: 18th – 19th June

CRIMINAL LAW – Indictable offence – Criminal Code section 300(1)(a) - Homicide etc - murder trial –accused pleaded guilty to one count of murder on presentation of Indictment- Sentencing factors to be taken into account - use of a lethal weapon to cut deceased - bush knife used as a murder weapon. Body of the deceased was grievously and grossly mutilated- An indication of a very strong and evil intention to do harm – shows accused had a premeditated evil intention to murder

Facts

The accused was indicted on one count of murder contrary to section 300(1)(a) of the Criminal Code. The accused used a bush knife to slash and cut the body of his late brother. The brother died from massive loss of blood. The State produced evidence to show that the body of the deceased was mutilated beyond recognition by the accused using his bush knife.

Held:

(1) The mutilation of the body of the deceased by the accused using a sharp bush knife shows that the accused had a very strong and evil intention of murdering the deceased. Mutilation of the body is a real and true demonstration of a hatred of the brother.

(2) Such gross and wicked actions show that the accused had a very strong and premeditated grievous and wicked intention to cause harm to another person.

(3) In the circumstances the accused should be given a very strong deterrent sentence.

Cases cited:

Counsel:

Mrs. Varsity Mauta, for the State
Mr. Misil Yawip, for the Accused

DECISION ON SENTENCE

3rd November, 2012

1. KAWI J: The accused Michael Bake is from the Nova area of Solos, Buka Island, in the Autonomous Region of Bougainville. He is charged with one count of murder under section 300 (1)(a) of the Criminal Code. On the 25th of January 2009 the accused and his brothers were watching CD in their house in the village. The deceased walked in and stood in front of the accused and the rest of everyone who had congregated there to watch the CD show and drinking intoxicating liquor. This angered the accused who had a short argument with the deceased. After this the accused and his friends continued drinking intoxicating liquor and watching CD. They were even at various times resorting to drinking locally brewed liquor or home brew during their drinking party. During the drink up the accused fell asleep and he slept while the others continued drinking. The deceased in the meantime began destroying properties in the house and his noise of destruction and violence woke up the accused. When he woke up he became angry with the deceased and started arguing with him. The deceased then picked up a bamboo pole which had a nail attached to it and hit the accused on the head. The nail penetrated the head of the accused as a result of the accused being hit with a bamboo pole. The accused was injured and he retaliated by attacking the deceased. He cut his body several times after his attack upon him. The accused felt so provoked by the actions of his late brother. That whole night the deceased was moaning and groaning in pain. The next morning at about 5.30 am the deceased whose battered body was covered in blood and blood cloths died a slow and very painful death. He died near the spot, in fact about 5 centimeters away from the spot where he was first attacked and wounded by the accused.

ISSUE

2. The sole issue for determination by this court is what is the sentence that the court should impose upon the accused?

3. In determining this issue, it must be noted from the outset that sentencing is not an exact mathematical science where fixed formulas are applied to find fixed solutions to problems. Rather sentencing is a discretionary process guided by several legal principles to achieve one or more objectives of sentencing. To achieve these objectives, the court is usually guided by quite a number of legal principles. And one of the principles I take into account is that I must take into account the mitigating factors operating in favor of the accused and the aggravating factors operating against the accused person. Some aggravating factors may be mildly aggravating while others may be strongly aggravating. The same is true for mitigating factors.

ALLOCUTUS

4. When the allocutus was administered on the accused person he expressed sorrow and begged the court for mercy and leniency in sentencing him. He pleaded the court to give him a suspended sentence so that he can go back home and pay compensation to the family and relatives of the deceased as well as to reconcile and make full restitution with them.

SENTENCING PROCESS

5. Sentencing is not an exact science. It is a discretionary process guided by some principles of law. In considering an appropriate penalty to be imposed upon you, I will take into account some of the following principles.

(1) Your antecedent report

(2) Your statement in allocotus

(3) Your mitigating and aggravating factors

(4) The Submission of defence and prosecution counsel;

(5) Sentencing guidelines and tariffs for murder cases.

(6) Those guidelines are applied to this case and a head sentence is then fixed.

(7) Consideration is given to whether part or whole of the head sentence should be suspended or not.

CLSSIFICATION OF YOUR OFFENCE

6. I will now consider whether your case can be categorized as a case belonging to the worst case category or whether you as the offender can be described as a worst offender. The offence of murder which you committed is a very serious offence as it involves a premature termination of precious human life. I cannot describe you as a serial offender nor can I describe your case as belonging to the worst category of cases. In my view whilst this is a one off killing, the weapon you used, a sharp bush knife is a dangerous lethal weapon, to attack a defenseless man shows clearly that you cared little for the sanctity and sacredness for human life. For this reason alone, I will classify you as a person who is dangerous to your community. I will therefore be very reluctant to accede to your request made in allocotus to release you to your community, to reconcile and make peace with the relatives of the family and relatives of the deceased. This is a case of a brother murdering a brother and because the community knows of your troublesome past, it may not be too willing to accept you back in their ranks.

ANTECEDENT REPORT

7. After your guilty plea was accepted by the court, the learned State Prosecutor informed the Court that the State does not allege any prior convictions against you. This simply means that you have never been in conflict with the law before and you have never been before a court of law before the commission of this offence.

MITIGATING FACTORS

8. The Supreme Court in the case of Steven Loke Ume described mitigating factors in this way:

"As for mitigating factors, relevant factors to be considered include the offender's youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first offender, guilty plea, early confession to police, remorse, poor health and restitution or compensation".

9. The Supreme Court went on further to say that:

"there is however a distinction between extenuating circumstances and mitigating factors. Although both have the same desired effect of reducing the punishment, extenuating circumstances, relate to the circumstances of the offence which reduces or diminishes the gravity of the offence whereas mitigating factors are usually unrelated to the circumstances of the offence. In murder offences, a distinction must be maintained between these two matters because the weight to be given to these two matters may vary. In murder offences as with all serious crimes of violence, the gravity of the offence determined in light of relevant aggravating factors may reduce the weight to be given to extenuating circumstances and mitigating factors and in some cases, rendered completely irrelevant"

10. Operating in favor of the accused, are the following factors:

The prisoner is a first time offender.

He expressed remorse and begged the court's mercy when the allocotus was administered.

He voluntarily surrounded to Police after senselessly killing the deceased.

He is a member of the Catholic Faith.

He was a good law abiding citizen before the commission of this senseless killing.

The prisoner is not a sophisticated person. He is a simple villager who was educated up to grade 2 in Primary school.

SUBMISSIONS BY THE PRISONER

11. Mr. Yawip for the prisoner submitted that you are in your 30s. You are married with a wife and therefore has a responsibility to maintain your wife and the children from that union.

12. He submitted that whilst a dangerous lethal weapon was used it was done as a result of a de-facto provocation which existed when the deceased escaped from prison. He submitted that when he escaped from prison he was committing adultery with a relative. This acts of adultery infuriated the whole family of the victim and the whole community that they were community talks of harming the deceased.

13. Based on these factors, the counsel told the court and referred to the various categories of sentencing in homicide cases as reflected in the Supreme Court decision in Manu Kovi –v– The State (2005) SC 789. It was argued that this case would clearly fall within the first category of Manu Kovi, and urged the court to impose a sentence of 15 years minus the spent in custody.

SUBMISSIONS BY THE STATE

14. Mrs. Mauta for the Sate on the other hand referred the court to the case of John Elipa Kalabus v The State [1988] PNGLR 193. She submitted that that was a case of an attempted rape on a pregnant woman where the National Court imposed life imprisonment. She submitted that the case like the present case had elements of viciousness that the court should consider giving him a strong deterrent sentence in the vicinity of 20-30 years. She submitted that the facts of this case are not as serious as that in the case of John Elipa Kalabus, but the principles were the same. She agreed with Mr. Yawip that this case would fall into the first category of Manu Kovi. She argued that committing a serious indictable offence is a serious crime and deserves nothing less than a strong custodial sentence which should be punitive and deterrent in nature.

FACTORS AGAINST YOU

15. I have already outlined factors operating in your favour. I consider the following factors operate against you:

(a) You used a dangerous and lethal weapon to mercilessly and brutally take away the life of an innocent man who you consider was the source of much trouble in your community.

(b) The killing was senseless and brutal over very trivial issues.

(c) Such killings are sadly becoming prevalent in today's society. People today no longer respect the sacredness and dignity of human life. Human beings easily forget that man is not the author of human life such that he can simply terminate that precious life when he/she consider it necessary. The good Lord is the only author of life and he alone has the authority to remove life.

(d) When you used your bush knife to cut the deceased on a very vulnerable part of the body, you knew where to swing the bush knife. And you knew very well that a blow to that part of the body would be fatal. After he fell to the ground you mutilated his body by using your bush knife to cut him all over his body as he lay on the ground.

(e) The Court therefore finds that you had a premeditated evil and gross and wicked intention to cause grievous bodily harm to your brother.

(f) You intentionally swung the bush knife with such ferocity and savagery that when the blows landed on the deceased he died a slow and painful death.

EXTENUATING CIRCUMSTANCES

16. And the following extenuating circumstances assist in reducing the gravity of the offence.

1. The deceased is alleged to have escaped from police custody.
   
2. After escaping from custody the deceased is alleged to be having an adulterous affair with his niece, who is the daughter of his brother, the accused.
   

100. The deceased grievously assaulted the accused by hitting him with a bamboo pole. This bamboo pole had a nail nailed to it. The nail attached to it hit the accused on the head and penetrated the skull creating a deep gaping hole on the head. The accused was injured and felt this pain in his body.
     

4. The deceased disturbed everyone who were watching and enjoying the CD show when he stood in the middle of the crowd watching the show and challenged the accused to a fight
   
5. The deceased had a physical fight with the accused on at least three different occasions.
   

17. Taking into account all factors for and against you and balancing them, I find that those against you tip the scale. However this alone does not render your case as falling within the worst offence category. Neither can it be taken as a criteria to brand you as a worst offender.

SENTENCING GUIDELINES

18. The maximum penalty for murder under section 300 is life imprisonment. This is however subject to the sentencing discretion vested upon the court by Section 19 of the Criminal Code. Although the prescribed maximum penalty for murder is life imprisonment, there is nothing in your case which warrants the court, to seriously consider imposing the maximum life imprisonment penalty upon you.

19. It is now a well settled principle of law that the courts will only consider imposing the maximum penalty for those cases categorized as falling in the "worst offence" category, and the offenders being classified as worst offenders or high risk offenders. (See Goli Golu v The State [1979] PNGLR 563)

20. The sentencing tariffs for homicide cases were set out in the oft quoted Supreme Court decision in the case of Manu Kovi v The State (2005) SC789 (per Injia DCJ, Lenalia and Lay JJ). The tariffs were listed as follows:

CATEGORY	SENTENCING RANGE
Category 1	12 – 15 years
Plea	No weapons used
Ordinary Cases	Little or no pre-planning
Mitigating factors with no aggravating factors	Minimum force used
	Absence of strong intent to do GBH

CATEGORY	SENTENCING RANGE
Category 2	16 – 20 years
Trial	No strong intent to do GBH
Mitigating factors with no aggravating factors	Weapons used Some pre-planning
	Some element of viciousness
CATEGORY	SENTENCING RANGE
Category 3	20 – 30 years
Trial or plea	Preplanned vicious attack Strong desire to do GBH
Special aggravating factors Mitigating factors reduced weight or rendered insignificant by the gravity of the offence	Dangerous or offensive weapons used. e.g. gun or ax used. Other offences of violence committed
CATEGORY 4	SENTENCING RANGE
Worst Case	Life Imprisonment
Trial or plea Special aggravating factors. No extenuating circumstances. No mitigating factors or mitigating factors rendered completely insignificant by the gravity of the offence.	Pre meditated attack. Brutal killing in cold. Killing of innocent, harmless person. Killing in the course of offence. Complete disregard for human life

21. Going by these sentencing guidelines your case falls easily into the third category which would attract a sentence in the range of less than 15 years and should be considered and imposed. The Supreme Court has emphasized that life imprisonment for wilful murder is the starting point, when the court has to work out what the appropriate sentence is. Only when a person has pleaded guilty and there are no factors in aggravation should a sentence of the magnitude suggested by in the other categories will be considered. Here I have already found that there are serious factors in aggravation which I cannot just ignore. Taking all these into account I am satisfied that a sentence in the range of 20 -30 years is warranted in your case here.

22. The Supreme Court is clearly saying that the National Court must impose longer sentences than it has in the previous years. This will underline the gravity of the crime of murder and provide a deterrent to the commission of such serious crimes to other offenders and would be offenders.

23. Another useful sentencing guideline in homicide cases has been laid down by the Supreme Court in The State –v–Laura (No. 2) [1988-1989] PNGLR 98, and subsequently in Lawrence Simbe –v– The State [1994] PNGLR 33.

24. The Supreme Court suggested these guidelines:

(a) Where a guilty plea with no factors in aggravation, a sentence of 12 years to 16 years.

(b) Where 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) years, to thirty (30) years.
(c) Where there is a guilty plea with aggravating factors and there is 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 serious offence, a range of sentences, from twenty-two (22) years to forty (40) years.
(f) Where there is a not guilty plea with aggravating factors other than the 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.

25. Of course where there are some very good mitigating factors, such as a very young offender persuaded by other more older persons to commit, that may warrant a sentence lower than any of the tariffs suggested above.

26. The Supreme Court made it clear that these suggested tariffs are guide lines only and not a conclusive set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons.

27. Going by these sentencing guidelines set by the cases of Laura (No 2) and Lawrence Simbe, your case clearly falls within category (b) which would attract a penalty in the range of seventeen (17) years to thirty (30) years.

28. Still other very useful sentencing guidelines were set by the Supreme Court in the case of Simon Kama –v– The State (2004) SC 740. These guidelines are as follows:

(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) years to thirty (30) years.

(c) Where there is a guilty plea with aggravating factors 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) years 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) years to forty 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 serious offence, a sentence of forty-one (41) years to life imprisonment.

29. Going by these guidelines, your case would easily fall within the category (b) which would attract a sentencing range from seventeen (17) years to thirty (30) years. This sentencing range of 17 to 30 years is very consistent with the range of sentences fixed in Laura No. 2 case and Lawrence Simbe's case.

APPLICATION OF GUIDELINES

30. In your case I will apply the guidelines suggested by the Supreme Court in Laura No. 2, Lawrence Simbe and Simon Kama. I apply those guidelines as follows:

• The plea was a guilty plea right from the outset.
• There were no firearms used if that term is limited to guns, rifles and pistols and the like. A dangerous weapon, namely a bush knife was used to terminate the life of another person.
  
• There were aggravating factors in your case. A very strong aggravating factor here was that there was some degree of pre-planning and you clearly had an intention to do grievous bodily harm. In the process of executing this intention you swung the bush knife with such savagery and ferocity that it hit the deceased on vulnerable parts of his body from whence he died a slow and painful death. These aggravating factors in my view are strong enough and reduce and completely render as insignificant the weight of any mitigating factors operating in favor of the prisoner.
  
• The evil and grievous mutilation of the body of your late brother.
  

31. Going by those guidelines, I hereby sentence you to a jail term of twenty five (25) years as appropriate to serve as a deterrent sentence for you and a warning to other offenders and would be offenders not to commit in such crimes in their lives.

SUSPENSION OF SENTENCE

32. In Public Prosecutor –v- Bruce William Tardew [1986] PNGLR 91, the Supreme Court, stated that suspension of sentences may be appropriate in three (3) broad categories. First where suspension will promote the personal deterrence, or rehabilitation of the offender. Secondly where suspension will promote the repayment or restitution of stolen monies or goods; and thirdly were imprisonment will cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.

33. In your statement in allocotus, you asked the court to give you a suspended sentence so that you can return home and pay compensation to the family and relatives of the deceased. While I find that this is not an unreasonable request, I will not suspend your sentence here for two reasons:

(a) For the court to give you a suspended sentence is to undermine the gravity of the crime that you committed. I said this in the case of The State v Moses Michael: CR 1336 of 2009 Unnumbered and Unreported National Court Judgement dated 15th November 2010.

"In my view suspension of sentences and placing prisoners on probation is not an appropriate course of action to take and should not be considered in homicide cases where the killing involves a premature termination of precious human life. If there is to be some consideration for reduction of sentences, then that should only be restricted to deducting the time spent in custody which is appropriate in this case."

(b) I will only suspend sentence in accordance with the criteria set by the Supreme Court in the Bruce Tardew case. You have failed to show the court how a suspended sentence will promote the objectives of personal deterrence and rehabilitation as well as retribution and restitution upon you as an individual if you are given a suspended sentence. In my view there is a real possibility of you re-offending if you are given a suspended sentence.

(c) In your allocutus you told the court that you have yet to pay compensation to the family of the deceased and make full restitution with them. You asked for some time to be given to you so you can arrange to pay compensation to the family of the deceased. In my view payment of compensation should have been done before you were taken into custody. This would then demonstrate your seriousness in reconciling with the family as well as making full restitution with them. It is now too late to ask the court to give you time to carry out this purpose and I will decline your request.

In addition, the logistics of supervising you while you are on probation is very difficult to obtain and policed, coupled with the exigencies of travel. You come from a geographically remote area of Solos in the Buka Island in the Autonomous Region of Bougainville. Supervising you on probation will be very difficult indeed. This would put a lot of strain on the State's meager resources let alone the State's financial resources.

34. I will therefore refuse to accede to your request to give you a suspended sentence.

YOUR SENTENCE

35. A strong deterrent sentence is warranted in your case. Consequently taking into account all the factors operating for and against you, as well as the extenuating circumstances of your case, I also take into account the period spent in pre trial custody and any other period spent in custody and I reduce your sentence by six(6) years. This will leave you with a balance of 19 years. I hereby sentence you to serve your nineteen (19) years in jail to be served in hard labor at the Kerevat Jail outside Rabaul.

_________________________________________________
Public Solicitor: Lawyer for the Prisoner
Public Prosecutor: Lawyer for the State