State v Yauling [2014] PGNC 306; N5602 (9 May 2014)

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2. The law in relation to murder is pro for s300 of the Criminal Code Act as follows:lows:

(1)Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;...

3. I accepted your guilty plea but entered a provisional plea. Upon reading the court depositions handed up in support of the charge against you as agreed by the Prosecutor and your Lawyers for the guilty plea, I am satisfied that the evidence contained in the depositions does support your guilty plea. A guilty plea was then formally entered on your behalf. Your Lawyer confirmed instructions on your guilty plea. The brief facts are these: On the morning of 9th April 2005 you struck your father the deceased with a bush knife multiple times, killing him instantly at your family breakfast table in your village, Balam village West Coast Dagua, East Sepik Province.

4. As can be seen from court records the lengthy turnaround time for this case arose for several reasons. The most important being the prisoner's incapacity to plead due to a psychiatric condition present at the time of his arrest and detention in 2005. This has resulted in him being referred to Laloki Psychiatric Centre in Port Moresby to undergo treatment in 2010. He was returned to Boram CS in 2011 after he was considered fit to plead by Dr Ludwig Nanawar, Consultant Psychiatrist from Laloki Psychiatric Hospital when his condition stabilised. His condition was confirmed by his Lawyer prior to him being arraigned this afternoon. In all he has been in State custody for over 9 years 7 days today.

5. Medical evidence forming part of the depositions confirms excessive wounds occasioned on the victim's body resulting in his death.

6. No prior convictions have been recorded against your name and I accept that position as presented to me by the State Prosecutor.

7. In your allocutus or when you were asked if you had anything to say about the sentence that should be considered, you said your Lawyer will talk for you. Your lawyer has spoken and said these on your behalf: You are sorry to court and to your family for what you had done.

1. No prior convictions,
2. Early admissions as contained in your Record of Interview.
3. Guilty plea

11. In his oral submissions Defence Lawyer Mr. Fingu conceded that although the matter before court was serious it should not be seen as the worst type deserving of the maximum sentence under the law. He said the prisoner had the option of pleading the defence of insanity however he has elected to plead guilty and prays for court's leniency under Section 19 Criminal Code. Mr Fingu submitted that there was no pre planning in this attack and said it happened at a spur of the moment when his late father branded him as being lazy. Nonetheless he submitted that the lower range of Category 3 in Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) of between 20 years to 30 years sentence to be appropriate under the circumstances. He submitted that the prisoner is now aged 31 years but was 22years at the time of the crime. He has three brothers and two sisters with their mother who is still alive. You completed Grade 6 education and is Roman Catholic by faith. Mr. Fingu further submitted that since the commission of this crime and your hospitalization, you have been in State custody one way or another for more than 9 years and 7 days and asked the court to take these into account during sentencing.

12. The State Prosecutor Ms Sheila Luben submitted that the prisoner's aggravating factors outweigh mitigating factors indicating that the crime was indeed very serious and the prisoner be punished accordingly. She conceded with defence submissions that Category 3 of Manu Kovi be used as a starting point adding that a weapon was used and the attack vicious. The sentencing tariffs in the Manu Kovi case is reproduced here for ease of reference:

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER
CATEGORY 1	-15 – 20years	-12 – 15 years	-8 – 12 years
Plea. -Ordinary cases. -Mitigating factors with no aggravating factors.	-No weapons used. -Little or no pre-meditation or pre-planning. -Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning. -Minimum force used. -Absence of strong intent to do GBH.	-No weapon used. -Victim emotional under stress and de facto provocation e.g. killings in domestic setting. -Killing follows immediately after argument. -Little or no preparation. - Minimal force used. -Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.
CATEGORY 2	-20 – 30 years-	-16 – 20 years	-13 – 16 years
Trial or Plea. -Mitigating factors with aggravating factors.	-Pre-planned. Vicious attack. - Weapons used. -Strong desire to kill.	-No strong intent to do GBH. -Weapons used. -Some pre-planning -Some element of viciousness.	-Using offensive weapon, such as knife on vulnerable parts of body. -Vicious attack. -Multiple injuries. -Some deliberate intention to harm. -Pre-planning.
CATEGORY 3	-Life Imprisonment-	- 20 – 30 years-	-17 – 25 years
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 innocent, 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.	-Pre-planned. Vicious attack. -Strong desire to do GBH. -Dangerous or offensive weapons used e.g. gun or axe. -Other offences of violence committed.	-Dangerous weapons used e.g. gun or axe. -Vicious and planned attack. -Deliberate intention to harm. -Little or no regard for safety of human life.

13. In deciding the appropriateness of sentence to be imposed to the factual situation before me I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of reading through some background information contained in the depositions to get an appreciation of the whys and hows this case has dragged on into its 9th year resulting in the prisoner's trial custody for the same length of time. I must commend both the State Prosecutor and Defence Lawyer for your submission which has made my job easy in deciding on what is the most appropriate sentence. Might I restate here that my task as trial judge and sentencing judge is exercised judicially based on all evidence before me from both sides? Each case is different with particular circumstances and in most situations will ultimately determine the kind of sentence that must be imposed.

14. In this case the victim was the prisoner's father hence any sufferings and loss was within their family and the victim's immediate relatives. Beside the suggestion for a deterrence sentence, the general public is and was not harmed and in no real danger. Section 19 of the Criminal Code also gives courts wide discretion in considering sentencing offenders.

15. The uniqueness of this case compared to other near similar cases is that the speed and manner in which the courts accorded the prisoner his rights to be referred to a psychiatric treatment facility upon detection of his mental state of mind to plead. Notwithstanding the length of time it has taken for this case to be finalised one thing is certain in that Judges who have come across this case file one way or another must be commended for their professionalism and diligence in handling this case. Put simply the prisoner has been accorded real justice in its true meaning. To his credit the prisoner has come out of this criminal justice quagmire and entered a guilty plea resulting in the finalization of his case after 9 years of waiting for justice to be done to him. To my mind this is a display of confidence, impartiality and the vibrant nature of our criminal justice system here in Papua New Guinea. I consider the prisoners' stand as unique and exemplary deserving of some leniency forming part of his mitigation in his sentence.

16. Furthermore the Consultant Psychiatrist's opinion must also be taken into account in determining the appropriateness of sentence and I do so here: Firstly he was of the opinion that even though the prisoner's mental state of mind at the time the crime was committed remained un known, evidence based on given history of laziness and lack of motivation showed signs of illness at the time of the crime. The prisoner was called "lazy" by his late father the deceased. A normal healthy person under similar circumstances would not go into frenzy, killing his father instantly the way he did. According to the doctors report this may have caused his threshold to tolerate anger and violence causing him to commit such an offence.

17. The question I now ask myself is should the prisoner be punished or sentenced for a crime which had shades of his mental state of mind at the time of the commission of the crime as opposed to his criminal intent, period. I stand to be corrected but for the time being my humble view is that he should not be punished any harshly than necessary if professional opinion of his state of mind is available to court. In the instant case I am satisfied that such evidence is before me and I will again consider it in mitigating his sentence. I will also take judicial notice of the medical doctor's prognosis that the prisoner's illness cause for schizophrenia is unpredictable with possible relapses anticipated. He therefore recommends that the prisoner will require regular maintenance treatment and follow up irrespective of this trial. With the greatest of respect I hold the view that whatever the outcome of sentence, such sentence is best served outside the prison walls as any reoccurrence of his mental state of mind can be speedily attended too within the confines of his family at no cost to the State. His family and friends who are the best care givers in the event of any relapse of his mental condition. He is best left with his family to care for and support.

18. The State Prosecutors' thrust in submissions is that the crime committed was violent and vicious with a dangerous weapon used on an innocent victim, the prisoners' father, hence calling for a deterrence custodial sentence. Their position is in order and within the spirit of the law however I will deviate from that position, this once on the peculiar arty and exceptional circumstances of this case. I

19. Having taking into consideration all the evidence and circumstances surrounding this case, his mental state of mind, in particular the unique and exemplary mitigating factors in favour of the prisoner I consider that a starting point of sentence in respect of the crime to be between 20 – 30 years. In the exercise of my discretion under Section 19 Criminal Code I set 20 years to be the head sentence and make these following orders:

20. I convict you and sentence you to 20 years less 9 years and 7 days whilst you were in pre trial custody. The whole of the remaining sentence is suspended on condition that you enter into GBB and Probation over a period of five years with the following condition:

2. That you must subject yourself to regular maintenance treatment and follow up at Laloki Psychiatric Hospital.

3. Any breaches will result in your apprehension and detention to the serve the full term of the suspended sentence

Orders accordingly.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the accused

National Court of Papua New Guinea

State v Yauling [2014] PGNC 306; N5602 (9 May 2014)