State v Waluka [2014] PGNC 176; N5788 (23 August 2014)

N5788

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 109 OF 2013

THE STATE

V

LAHA JOE WALUKA

Kimbe: Cannings J
2014: 6, 23 August

CRIMINAL LAW – sentence – murder – Criminal Code, Section 300 – guilty plea – offender killed a man – cut him with a bushknife and victim died a month later from the knife wound

The offender pleaded guilty to murder. He was armed with a bushknife and was trying to stop a fight. He had been shot at with a stone, allegedly by the deceased. He ran at the deceased, swung the bushknife at him and slashed him just below the knee. The deceased was rushed to hospital and died there a month later from the bushknife wound. This is the judgment on sentence.

Held:

(1) The maximum penalty for murder is life imprisonment under Section 300 (murder) of the Criminal Code.

(2) The starting point for sentencing for this sort of killing (use of offensive weapon) is 13 to 16 years imprisonment (Manu Kovi v The State (2005) SC789 guidelines applied).

(3) Mitigating factors: it was a spontaneous incident, involving little pre-planning; the offender was trying to stop the fight; there was some element of de facto provocation at the time of the incident due to the deceased shooting at the offender with a stone; he is a first-time offender; some compensation has been paid; he pleaded guilty.

(4) Aggravating factors: it was a vicious attack, out of proportion to what the deceased did to him; there was a strong desire to inflict grievous bodily harm; the use of an offensive and lethal weapon.

(5) A sentence of 15 years imprisonment was imposed. The pre-sentence period in custody was deducted and four years of the sentence was suspended subject to conditions.

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 Abaya Ulas (2010) N4009
The State v David Solomon Lingen CR No 1292/2009, 20.11.09
The State v Jacob Aku Matai (2011) N4256
The State v Julius Kembu CR No 288/2009, 23.04.09

SENTENCE

This was a judgment on sentence for murder.

Counsel

F K Popeu, for the State
D Kari, for the offender

23rd August, 2014

1. CANNINGS J: Laha Joe Waluka pleaded guilty to one count of murder under Section 300(1)(a) of the Criminal Code. The offence was committed between 0600 and 0630 on 6 July 2012 at Buludawa. There had been a fight between two family groups. The offender was armed with a bushknife and was trying to stop the fighting. He had been shot at with a stone, allegedly by the deceased, Joseph Dome Valuka. He ran at the deceased, swung the bushknife at him and slashed him just below the knee. The deceased was rushed to hospital and died there almost a month later from the bushknife wound. The offender killed the deceased, intending to cause him grievous bodily harm, hence the conviction for murder.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

This was a group fight. I was trying to stop the fight. The deceased shot a stone at me so I cut him. He died a month later. I assisted with his medical expenses. I apologise to the court and the relatives of the deceased. I ask for mercy and a non-custodial sentence.

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 that he made admissions to Police when interviewed on 10 August 2012.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service.

Personal details of Laha Joe Waluka

Age : 26

Origin : Buludawa village, Talasea

Upbringing : village

Marital status : married with 3 children

Family : both parents alive; 3rd born in family of 6

Education : grade 7

Employment : no formal employment

Occupation : farmer, cash crops

Health : generally sound

Religion : Catholic/Seventh-Day Adventist

His family (father and uncle) are confident that peace has been restored through payment of compensation in accordance with custom.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari 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. It was a spontaneous reaction to something that happened to him. A sentence of no more than 16 years is warranted.

SUBMISSIONS BY THE STATE

7. Mr Popeu agreed that this was a category 2 case. He submitted that because of the viciousness of the attack, there was a strong intention to cause grievous bodily harm. The sentence must reflect the seriousness of the offence.

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 similar 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 from the leading Supreme Court case of Manu Kovi v The State (2005) SC789.

SENTENCING GUIDELINES FOR MURDER: 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

I accept Mr Kari's submission that this is a category 2 case: 16 to 20 years.

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

11. Four 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 as 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.

12. 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 as 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.

13. In the Madang case of The State v Abaya Ulas (2010) N4009 the offender, a police officer, was not on official police duty but went to a village where the deceased was staying and with the help of others, raided the house the deceased was staying in and fired at least two shots from a police-issued firearm that he was carrying. The deceased died soon afterwards from loss of blood caused by a bullet wound to the leg. The offender was convicted after a trial. It was dealt with as a category 2 case under the Kovi guidelines and there were a number of mitigating factors warranting a sentence at the low end of the starting point range: 16 years imprisonment.

14. In another Madang case, The State v Jacob Aku Matai (2011) N4256, 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 long running tension between the offender and the deceased. The sentence was 22 years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE?

15. To determine the head sentence I will focus on the starting point range of 16 to 20 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be at the low end of or below the starting point range. The more aggravating factors present, the more likely the head sentence will be at the top end or 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.

16. Mitigating factors are:

• it was a spontaneous incident, involving little pre-planning;
• the offender was trying to stop the fight;
• there was some element of de facto provocation at the time of the incident due to the deceased shooting at the offender with a stone;
• he is a first-time offender;
• some compensation has been paid;
• he pleaded guilty.
  

17. Aggravating factors are:

• it was a vicious attack, out of proportion to what the deceased did to him;
• there was a strong desire to inflict grievous bodily harm;
• the use of an offensive and lethal weapon.
  

There are more mitigating factors than aggravating factors. The appropriate sentence is slightly below the starting point range: 15 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 two years, one month, two weeks, one day.

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

19. This is a case suitable for a partial suspension in view of the guilty plea and the evidence of some level of peace between the families of the offender and the deceased. I will suspend four years on these conditions:

1. must appear before the National Court and obtain an order for discharge from custody prior to release from custody so that conditions of probation can be explained;
   
2. must attend Probation Office within 72 hours after release from custody;
   
3. must reside at place advised to the Probation Office and nowhere else except with the written approval of the National Court;
   
4. must not leave West New Britain without the written approval of the National Court;
   
5. must perform at least three hours unpaid community work each week, to be arranged through the Probation Office;
   
6. must attend Church every weekend for service and worship and assist the church in its community activities;
   
7. must report to the Probation Office at Kimbe on the first Monday of each month;
   
8. must not consume alcohol or drugs;
   
9. must keep the peace and be of good behaviour;
   
10. must have a satisfactory probation report submitted to the National Court Registry at Kimbe and appear before the Court for probation review every six months after the date of release from custody;
    
11. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

SENTENCE

20. Laha Joe Waluka, 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	15 years
Pre-sentence period to be deducted	2 years, 1 month, 2 weeks
Resultant length of sentence to be served	12 years, 10 months, 2 weeks
Amount of sentence suspended	4 years
Time to be served in custody	8 years, 10 months, 2 weeks
Place of custody	Lakiemata Correctional Institution

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