N5684

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 377 OF 2013

THE STATE

V

TUN MAI ISAAC

Madang: Cannings J
2014: 13 May, 9, 21 July

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offender killed man by stabbing him in the back during altercation after football grand final – victim offered no provocation and entirely innocent – sentence of life imprisonment.

The offender was convicted after trial of wilful murder. He killed the deceased by stabbing him in the back during an altercation that took place in the late afternoon after a soccer grand final and he intended to kill him. The deceased offered no provocation. He was trying to stop the fight and was entirely innocent. This is the judgment on sentence.

Held:

(1)	The starting point for sentencing for this sort of wilful murder (trial, special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence – brutal killing, killing of defenceless, harmless person – offensive weapon used) is life imprisonment.

(2)	Mitigating factors: spontaneous incident, not premeditated, no prior conviction, good community record, high degree of co-operation with the court.

(3)	Aggravating factors: use of lethal weapon, brutal killing, very deep knife wound, indicating a ferocious attack, killing of defenceless, harmless, entirely innocent person.

(4)	The mitigating factors are not sufficiently strong to warrant departure from the starting point, and there is no evidence of reconciliation with the deceased's relatives. The sentence imposed was imprisonment for life.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Chris Baurek CR 146/2009, 26.05.10
The State v Isak Wapsi (2009) N3695
The State v Joel Otariv (2011) N4409
The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591
The State v Mark Bongede (2012) N4683
The State v Mathew Misek (2012) N4561
The State v Moses Nasres (2008) N3302
The State v Seth Ujan Talil (2010) N4159
The State v Tun Mai Isaac (2014) N5595

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel

F Popeu, for the State
A Meten, for the offender

21st July, 2014 

1. CANNINGS J: This is a decision on sentence for Tun Mai Isaac who was convicted after trial of the wilful murder of a young man, Oilion Feale. The offence was committed at Jahil village, near Madang town, on Sunday 9 December 2012.

2. The offender killed the deceased by stabbing him in the back during an altercation that took place in the late afternoon after a soccer grand final. The deceased offered no provocation. He was trying to stop the fight and was entirely innocent. The medical evidence showed that the deceased died due to internal bleeding caused by a single knife wound 22 cm long, extending from the lower back through the liver, kidney and lungs and exiting the right lower chest. There was no lawful justification or excuse for the offender's killing of the deceased and he was found to have acted with the intention of causing his death. Hence the conviction for wilful murder. Further details of the circumstances of the offence are in the judgment on verdict, The State v Tun Mai Isaac (2014) N5595.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender made the following address to the court:

After the incident there was talk of reconciliation and I was expecting that the CID officers would come to the village and that all issues would be settled with the assistance of village elders and councillors and family members. However, that did not happen. Instead when I went to the CID I was interviewed and charged and then I was given bail. But when I went to the District Court my bail was revoked.

I spent time in the Yomba Police cell in February 2013 and while I was there, there was a mass escape of 25 remandees. Then I was taken to Beon Jail and in March 2013 there was a mass escape of 43 detainees. I had the opportunity to escape on those two occasions but I refused to escape as I have always been concerned about my mother and my properties.

I am a first-time offender and I have never been in trouble with the court before. I have learned a lot from my experience in custody and in court. I ask for the mercy of the Court so that I can be given probation as this would give me time to sort out the problem and to look after my mother. I am the second last born in the family and there is only my young brother left at home but he is still going to school and there are school fee problems to attend to. There is no one apart from me to look after my mother.

PRE-SENTENCE REPORT

5. Tun Mai Isaac is 23 years old and single. His parents are divorced. His father left his mother several years ago. He (the offender) lives with his mother and his younger brother in the village of his upbringing, Panim, in the North Ambenob area of Madang District. He has a grade 8 education. He earns an income from the sale of cash crops. He is strongly supported by his mother, who remains loyal to him and has difficulty accepting that he would have committed such a serious offence. He is highly regarded in the community. Four senior members of the Panim community visited the Probation Office to vouch for his good character. He is actively involved in sport, church and youth activities and is regarded as an asset to the community.

6. The deceased's brother, speaking on behalf of the deceased's family and clan, expressed disgust at the attitude of the offender, who has always falsely denied his involvement in the killing of the deceased. The family and clan would like to see that the offender is severely penalised.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mrs Meten submitted that there are substantial mitigating factors – it was a spontaneous incident, he is a first-time offender, he has cooperated with the Court, he has made a genuine plea for mercy so that he can settle the matter and look after his mother – which bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, and make the appropriate sentence no more than 20 years imprisonment.

SUBMISSIONS BY THE STATE

8. Mr Popeu did not agree that this was a category 2 case according to the Kovi guidelines. Although it was not a pre-mediated killing, which means that the death penalty may not be appropriate, and there are some aspects of the per-sentence report that are favourable to the offender and he has no prior conviction the very serious aggravating factor is that the deceased was entirely innocent. A death in these circumstances warrants a sentence of life imprisonment.

DECISION MAKING PROCESS

9. 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 similar offences?
•	step 4: what should the head sentence be?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should any part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided … a person liable to death may be sentenced to imprisonment for life or for any shorter term.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J and Lay J) and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J and Davani J).

The Ume guidelines

12. In Ume the Supreme Court suggested that a number of different scenarios may warrant the death penalty, eg (1) killing of a child, a young or old person, or a person under some disability needing protection; (2) killing of a person in authority or responsibility in the community providing invaluable community service killed in the course of carrying out their duties or for reasons to do with the performance of their duties; (3) killing of a leader in government or the community, for political reasons; (4) killing of a person in the course of committing other crimes; (5) killing for hire; (6) killing of two or more persons in a single act or series of acts; (7) killing by a prisoner in detention or custody serving a sentence for another serious offence of violence; (8) if the offender has prior conviction(s) for murder.

The Kovi guidelines

13. In Kovi the Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in the following table.

TABLE 1: SENTENCING GUIDELINES FOR WILFUL MURDER DERIVED FROM THE 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-mediation or pre-planning – minimum force used – absence of strong intent to kill.	15-20 years	
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill.	20-30 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill.	Life imprisonment	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	[No details provided]	Death 	

Applying the guidelines

14. Under the Ume guidelines, the case is not one of the eight types that the Supreme Court suggested would warrant the death penalty. As for the Kovi guidelines I accept the submission of the State that this is a category 3 case: the conviction followed a trial, there are special aggravating factors, the mitigating factors are reduced in weight or rendered insignificant by gravity of offence, it was a brutal killing of a defenceless, harmless person, an offensive weapon was used. Therefore the starting point is life imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR SIMILAR OFFENCES?

15. I have sentenced offenders for wilful murder in eight recent cases, which are summarised in the following table.

SENTENCES FOR WILFUL MURDER, 2008-2012

No	Case	Details	Sentence	
1	The State v Moses Nasres (2008) N3302, Kimbe	Trial – the offender lay in waiting for the deceased as he walked along a track in a squatter settlement – as the deceased walked past, the offender emerged from behind some flowers and pushed an iron rod though the deceased's head, killing him instantly.	Life imprisonment
	
2	The State v 
Isak Wapsi (2009) N3695, Madang	Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – the deceased was working at a fermentery and the offender approached him without warning or provocation and cut his legs with a bushknife, severing the right leg and inflicting significant damage to the left leg.	25 years
	
3	The State v Chris Baurek CR 146/2009, 26.05.10, Madang	Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – he joined with two others in chasing the deceased and attacking him on his back with bushknives – mitigating factors included that the offender, though fit to plead, had mental and physical health issues, he also made very early admissions of guilt.	20 years	
4	The State v 
Seth Ujan Talil (2010) N4159, Madang	Trial – offender sentenced for two offences of wilful murder committed at a mediation gathering – not proven that the offender directly killed either of the deceased but he was convicted under both Sections 7(1)(b) and 8 of the Criminal Code as he was involved in a violent group attack and aided others in wilfully committing the murders and the offences were committed during the course of prosecuting an unlawful purpose in conjunction with others.	30 years
	
5	The State v 
Joel Otariv (2011) N4409, Madang	Guilty plea – while the deceased, an elderly woman, was bathing in a river, the offender approached her and raped her, then struck her over the head with a rock, then deliberately pushed her head into the water and drowned her.	Life imprisonment
	
6	The State v Mathew Misek (2012) N4561, Kimbe	Guilty plea – the offender killed his wife by cutting her on the head with a bushknife, causing instant death – immediately prior to the attack the offender had an argument with her father over payment of bride price – a vicious and barbaric killing, there was a strong desire to kill.	Life imprisonment
	
7	The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591, Madang	Trial – four offenders were convicted after a joint trial of the wilful murder of a man committed during a fight between two groups of people – the sentences reflected their varying degrees of involvement.	30 years,
20 years,
20 years,
17 years
	
8	The State v 
Mark Bongede (2012) N4683, Madang	Trial – the offender was in his village, entertaining a visiting dignitary – the deceased and his friends were drunk and being a nuisance – the offender became frustrated and angry, fought with them and then attacked the deceased with a bushknife, inflicting multiple wounds.	24 years

STEP 4: WHAT IS THE HEAD SENTENCE?

16. I will now assess the mitigating and aggravating features of the case.

Mitigating factors

These are:

•	it was a spontaneous incident, not premeditated;
•	no prior conviction;
•	the offender has a good community record;
•	the offender has shown a high degree of co-operation with the court.

Aggravating factors

These are:

•	use of a lethal weapon, a knife, which the offender brought into a fighting area;
•	brutal killing;
•	very deep knife wound, indicating a ferocious attack;
•	killing of defenceless, harmless, entirely innocent person.

Determination

17. The mitigating factors are not sufficiently strong to warrant departure from the starting point, and there is no evidence of reconciliation with the deceased's relatives. The circumstances of the case are comparable to those in Nasres, Otariv and Misek, all of which resulted in terms of life imprisonment. The appropriate sentence is imprisonment for life.

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

18. As the offender is sentenced to life imprisonment, it is not appropriate to deduct the pre-sentence period that he has spent in custody. However, as an offender who has been sentenced to life imprisonment is generally considered eligible (but not entitled) to parole after serving ten years of the sentence (Parole Act, Section 17(1)(c)) and his pre-sentence period in custody should be taken into account when determining whether the period of ten years has been served, I think it is appropriate to record for official purposes the time that has already been spent in custody in connection with this matter. I determine that that period is 1 year, 5 months, 2 weeks.

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

19. No. While the pre-sentence report shows that the offender has the strong support of his mother and senior members of his community, there has been no reconciliation with the deceased's relatives. It would also not be proper to suspend any part of the head sentence as the offender has been sentenced to life imprisonment.

SENTENCE

20. Tun Mai Isaac, having been convicted of one count of wilful murder under Section 299(1) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	Life imprisonment	
Pre-sentence period in custody (not deducted)	1 year, 5 months, 2 weeks	
Resultant length of sentence to be served	Life imprisonment	
Amount of sentence suspended	Nil	
Time to be served in custody	Life imprisonment	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender