State v Rurua [2014] PGNC 78; N5617 (20 May 2014)

N5617

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 51 OF 2013

THE STATE

V

JACK EDWARD RURUA

Alotau: Toliken, AJ.
2013: 17th October
2014: 20th May

CRIMINAL LAW – Sentence – Murder – Plea – Prisoner killed his own brother – Inflicted deep cuts to neck, shoulder, left elbow and knee cap of deceased – Deceased asleep when attacked - Criminal Code Act Ch. 262, s 300(1)(b).

CRIMINAL LAW – Sentence - Mitigating factors - First time offender – Early plea – Self inflicting killing of close relative (parricide) – Co-operated with police - Aggravating factors - Vicious attack – Very strong intention to do grievous bodily harm or even kill - Surprise attack innocent, defenceless sleeping child – Intoxication through consumption of alcohol and marijuana – Sentenced to 17 years less time in custody.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92
Kesino Apo v The State [1988] PNGLR 182
Pauline Painuk v. The State, SCRA 54 of 2000 (unnumbered and unreported dated 22nd November 2000)
Joseph Enn v The State (2004) SC738
Manu Kovi v The State (2005) SC 789
The State v Jack Mek (1997) N1575
The State v Saku Sogave (2000) N2086
State v Baipu (2003) N2451
The State v Pake (2007) N5051
The State v Laiam (2010) N3995
The State v Anton (2010) N 4117
The State v Lagu (2011) N4354
The State v Matai (2011) N4256
The State v Henry Kare; CR 498 of 2010 (unreported and unnumbered judgment dated 9th August 2013).
The State v Samual Tavari; CR 50 of 2013(unreported and unnumbered judgment delivered on instant date)

Counsel

B Gore, for the State
P. Palek, for the prisoner

JUDGMENT OF SENTENCE

20th May, 2014.

1. TOLIKEN, AJ: Jack Edward Rurua, on the 27th of April 2012 between 7.00 – 8.00p.m., you had returned home drunk to your village of Koiabagira, in the Rabaraba District of Milne Bay Province and you started attacking your mother with a bush knife. Your father tried to remove the bush knife from you but you were too strong for him and so you attacked him also. As you were attacking your parents all your siblings except your younger brother Kenneth Edward Rurua (deceased) ran away. Turning away from your parents you went over to your younger brother Kenneth who was sleeping on a mat and swung the bush knife at him. As you swung the knife a second time at him your parents got scared and ran away. They returned the next day and found Kenneth lying dead where you had attacked him. The matter was reported to the police and you were arrested. The State alleged that you had intended to cause the deceased grievous bodily harm when you attacked him with the bush knife.
   
2. On the 17th of October 2013 the State indicted you for one count of murder contrary to Section 300 (1) (a) of the Criminal Code Act Ch. 262 on the above facts. You pleaded guilty to the charge and I entered a provisional plea of guilty. I confirmed your plea and convicted you after perusing the District (committal) Court depositions.
   
3. After hearing from you, your lawyer and the State on the question of sentence, I adjourned for sentence to 23rd October 2013 but I was unable to do so. Hence, I adjourned to the December 2013 Circuit but that circuit was aborted due to funding problems faced by the Public Prosecutor's Office. You now appear before me for your sentence on this first circuit to Alotau for 2014.
   
4. The crime of murder under Section 300 (1)(a) provides –
   

300. Murder.

(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; or

(b) ...

(c) ...

(d) ...

(e) ...

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) ...

(4) ...

5. I have to determine an appropriate sentence for you. And to do that I must decide whether or not your case should attract the prescribed maximum penalty – life imprisonment. In doing so I must take into account your personal circumstances and interest and your attitude to the offence, the circumstances under which you committed the offence, the State's interest, the way in which the courts have treated this type of offence and the purpose (s) or objective (s) for which sentences for this offence should serve.
   
6. You are from Koiabagira Village in the Rabaraba Distrcit of Milne Bay Province. At the time of your conviction you were 23 years of age and single. Hence, you would have been 22 years when you committed the offence. You are the 4th born in a family of 3 boys and 6 girls. Your parents are both alive. You are an Anglican and did not complete your Primary School education having left school in Grade 7. You are a first time offender and were in pre-conviction custody for a period of 1 year, 5 months and 7 days.
   
7. In your address to the Court you said the following:
   

I say sorry to the court for the wrong I had done. I have broken the Constitution of Papua New Guinea. I ask you to have mercy on me be and I would like to be placed on good behaviour bond so that I could serve my sentence in my village. That is all.

8. I heard from your lawyer Mr. Palek and Ms. Gore for the State. They basically adopted the submissions they made in the matter of The State v Samual Tavari; CR 50 of 2013(unreported and unnumbered judgment delivered on instant date), which I have just passed sentence on. Both lawyers agree that your case does not fall under the worst category for the offence of murder to attract the maximum penalty of life imprisonment. They also pointed me to the case of Manu Kovi v The State (2005) SC 789 (Injia, DCJ. (as he then was) Lenalia and Lay JJ.) where the Supreme Court provided sentencing tariffs for homicide offences like murder and the considerations or circumstances for which the suggested tariffs could be applied.
   
9. Mr. Palek submitted that your case falls in between the top of Category 1 and the bottom of Category 2 of the Manu Kovi tariffs for murder and thus should attract a sentence between 13 – 16 years. Ms. Gore on the other hand suggested that your case falls under Category 3 and should therefore attract a sentence between 20 – 30 years. Both counsel again cited the same cases which they cited in Samuel Tavari. I will refer to some of these cases later in this judgment.
   
10. And as I did in that case I also tabulate below the sentencing tariffs and relevant circumstances for Categories 1, 2 and 3 of Manu Kovi.
    

Category	Circumstances	Sentence
1.	Plea. Ordinary cases. - Mitng factors with no aggo aggravating factors -No weapons used - Little or no pre-planning - Minimum force used -Absence of strongnt to do o do GBH.	– 15 years
2	Trial or Plea. Mitigating factors wggr aggravating factors - No strong intent to do GBH -Weapons used - Some pre-planning -Some element of viciousness	16 – 20 years
3	Trial or plea Special Aggravating factors - Mitigatactors reduced in wein weight or rendered insignificant by gravity of offence Pre-planned. Vicious attack - Strong desire to do GBH - Dangerous or offensive weapons used e.g. gun or axe - Other offences of violence committed.	– 30 years

11. So let me now turn quickly to the mitigating and aggravating factors in your offence. First the mitigating factors: you pleaded guilty early to the charge thus saving time and money for the State, you are a first time offender and were previously of good character, you are youthful offender and you are a simple inadequately educated and unsophisticated villager. Killing of a relative (parricide) is a mitigating factor so I take this into account in your favour too. (Kesino Apo v The State [1988] PNGLR 182 (Kapi DCJ., Woods, Los JJ.)
    
12. On the other hand I take the following aggravating factors against you. You mercilessly attacked your innocent and defenceless 10 year old kid brother. It was totally unprovoked not to mention that it was also vicious. There was no medical report to attest to the injuries he suffered but in Q & A No. 25 in your Record of Interview you admitted that you cut off his neck. But it appears that those were not the only injury you inflicted on him. In his statement to the Police your father Mr. Edward Rurua stated that when he returned to your family home the next day he found the deceased lying on the mat where you had killed him covered in blood. He "saw a big wound on the right shoulder, neck, left elbow and [the] left knee cap [had] been chop[ped] off." This is confirmed by your mother Mrs. Sylvia Rurua who stated that the neck was almost cut off. Your attack was therefore vicious and it can easily be inferred that you had a very strong intention to cause grievous bodily harm if not kill your brother. Your offence is further aggravated by the fact that you used an offensive weapon to attack your brother and that the crime of murder and homicides in general continue to rise here in the Milne Bay Province and around the country.
    
13. There is one final aggravating factor against you and that is the fact that you were drunk and if that were not enough you admitted in the record of Interview that you also smoke marijuana. Self induced intoxication is an aggravating factor and it naturally must follow that substance abuse such as marijuana consumption or consumption of other narcotics and hallucinating drugs which reduces and impairs one's capacity to control oneself must be seen in similar light. (Kesino Apo v The State (supra)). So what should be an appropriate sentence for you?
    
14. It is settled that the maximum penalty is reserved for the worst instances of a particular offence and that each case has to be treated on its own merits. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92)
    
15. The offence of murder is a very serious one and the maximum penalty of life imprisonment reflects the society's view of the offence. People who take other peoples' lives should be severely punished to exact respect for the sanctity of life and to denounce this most brutal and barbaric act. The law recognizes, and in fact, provides that some killing can be excused in law while some can be mitigated such as killing of a close relative as we have seen without losing sight of the need to advance the purposes or objectives of sentencing for homicides generally which are to punish the guilty, condemn or denounce the perpetration of these offences and of course rehabilitation. (The State v Samuel Tavari (supra) at para. 21)
    
16. I agree that yours is not the worst type of murder. Hence it should not warrant the maximum penalty of life imprisonment. And I also agree that I should be guided by the principles in Manu Kovi but only in so far as those principles do not unnecessarily curtail or fetter my sentencing discretion under Section 19 of the Code.
    
17. Mr. Palek urged me to impose a sentence between 13 – 16 years (Category 1 & 2) while Ms. Gore asked for a sentence between 20 - 30 years within Category 3 of Manu Kovi. So what are the peculiar features of your case when seen against the considerations in Manu Kovi? I accept that –
    
    • you did not pre-plan to kill your brother
    • But you used an offensive,if not a dangerous weapon - a bush knife - to kill him
    • There was a very strong intention to cause grievous bodily harm
    • The attack on was vicious and sustained judging by the nature of injuries your brother sustained
      
18. These features would place your case in the bottom range of Category 3 of the Manu Kovi tariffs. There are mitigating factors as I have found in your favour. And one that seems to call out for special consideration is that the victim was your own brother. The Supreme Court said in Kesino Apo (supra) the killing of a close relative is not only a mitigating factor but also self inflicting. His Honour Kapi DCJ. (as he then was) said –
    

In a sense, a killing of a relative is self-inflicting in that, a killer may lose a warrior, worker or contributor to bride price or even a helper. This may be regarded as a punitive aspect of the killing which he has brought upon himself. It should not be taken into account as a factor against him but in his favour. The trial judge was wrong in holding this against the appellant.

19. His Honour Woods J. Said:
    

It is quite clear that judges have given consideration to the fact that a killing within the family will usually mean that the perpetrator will suffer shame and the other burdens for the rest of his life for the killing of a relative and therefore a long-term of imprisonment is not really necessary or appropriate as a punishment. I therefore find that the trial judge erred in considering this factor. However, there is no hard and fast rule that a greatly reduced sentence is mandatory.

20. And his Honour Los J. Said:
    

The sentencing judge while applying numerous factors in favour of the appellant made an error in applying against the appellant certain factors which should have been applied otherwise. The apparent one relates to the relationship between the appellant and the deceased. The appellant was a fool. But apart from undergoing the punishment imposed by the court, he would be suffering for the rest of his life from self-imposed punishment. The self-imposed punishment is that he had lost a cousin brother whose assistance he would need in difficult times. While there is therefore a need for general deterrence, in terms of personal punishment, he would be suffering twice. (Underlining added)

21. And as I said in Samuel Tavari, it does not follow, however, that sentences in these situations should be reduced significantly. A life has been taken unlawfully and whether the person killed is a relative or not an appropriate sentence ought to be imposed to exact respect for the sanctity of life and the rule of law
    
22. On this point I quote what I said in Samuel Tavari at paras. 17,18:
    

17. "And to that end what His Honour Gavara-Nanu J. said in The State v Saku Sogave (2000) N2086 in respect of the principle merits consideration. His Honour there was basically of the view that the principle should not apply in all cases of parricide. His Honour there said –

With great respect, in so far as the principle was stated generally, I query as to whether it can or should be applied in all homicide cases where the victim is a relative, or at all. I rather think that if it has to be applied, it should be applied only in cases, where death was not intended by the offender, and the victim was a very close relative. For instance, in spleen killings, or beatings done in a fit of anger, or even deaths resulting from dangerous driving and so on. Where necessary, the offender should be required to produce evidence to prove that the person (relative) he killed will result in a loss to him within the meaning of the principle, especially if the victim was a distant relative or where the relationship between the offender and the victim is not clear. ...

But in cases where the offender had deliberately set out to kill or do grievous bodily harm to a relative and caused the death of the relative, as was the case here, the principle should not be applied at all. In other words, the death of a relative should not be a mitigating factor for the offender's sentence or punishment. That indeed is the general community attitude in Papua New Guinea. The offender has to receive the full punishment for the crime he committed. I am unable to cite any case law, but it suffices to say that such community attitude is common knowledge. (Underlining added)

18. But I guess that in the end it is a question of degree and any reduction of a sentence will depend on how closely related the offender and the deceased were, seen against the circumstances under which the offence was committed. So where there is a deliberate intention to kill or do grievous bodily harm, I agree that an offender should get very little reduction, if at all, unless there is evidence of extenuating circumstances such as de facto provocation for instance.

23. Let me now consider a few cases to see firstly the general sentencing trend for murder and secondly the sentencing trend for parricide specifically.
    
24. The State v Henry Kare; CR 498 of 2010 (unreported and unnumbered judgment dated 9th August 2013). There I sentenced a youthful offender to 15 years imprisonment on a guilty plea for murder. The prisoner in that case inflicted multiple injuries on the victim with a bush knife. He was drunk but was provoked in the non-legal sense by the deceased, expressed remorse and was a first time offender.
    
25. Joseph Enn v The State (2004) SC738: The appellant appealed against her sentence of 20 years. An argument erupted at a mediation meeting between the deceased and two others. After they were stopped, the deceased walked back to where he was, to sit down. The appellant armed with a long bush knife walked up behind the deceased and struck the deceased with the bush knife on the left side of the neck. The impact of the knife blow was such that, the head was totally severed from the body. The Supreme Court affirmed the sentence of 20 years.
    
26. The State v Laiam (2010) N3995: The prisoner stabbed the deceased to death on the chest once with a knife. He pleaded guilty to the charge and was sentenced to 15 years.
    
27. The State v Anton (2010) N 4117: The prisoner stabbed another woman, whom she suspected of having an affair with her husband, three times with a kitchen knife. The victim died almost instantly. On a plea of guilty Cannings J. held that the starting point for this type of murder (where there is no strong intent to cause grievous bodily harm, use of weapon and some element of viciousness) ought to be 16 – 20 years. There were a number of mitigating factors hence a head sentence below the starting point was warranted. A sentence of 14 years was imposed.
    
28. Pauline Painuk v. The State; SCRA 54 of 2000 (unnumbered and unreported dated 22nd November 2000): There the Supreme Court confirmed a sentence of 18 years to a plea of murder where the appellant had stabbed the deceased, a young school girl twice.
    
29. The State v Lagu (2011) N4354: The prisoner pleaded guilty to killing a fellow villager by stabbing him with a pocket knife during a family gathering for no apparent reason at all. He was sentenced to 20 years.
    
30. The State v Pake (2007) N5051: The prisoner pleaded guilty to murder. He had approached a group of friends who were sitting down telling stories and suddenly attacked one of his friends with a bush knife, inflicting a fatal wound to his neck. It was a vicious attack, with strong desire to do grievous bodily harm. He was sentenced to 20 years.
    
31. The following cases exhibit circumstances of similar nature to yours i.e. cases of parricide.
    
32. The State v Saku Sogave (supra): The prisoner pleaded guilty to the charge of manslaughter after plea bargaining. In the course of an argument with the deceased, who was his uncle over a piece of land, the prisoner attacked him with a bush knife, inflicting three direct and vicious blows to the skull, the neck and the side. The neck was completely severe. The deceased died instantly as a result. The attack was unprovoked and the deceased was a defenceless old man. There was deliberate intention to cause serious injury or death to the deceased. The court took these into account as aggravating factors. It, however, considered the following mitigating factors. The prisoner surrendered himself to the police and admitted committing the crime, pleaded guilty, was a first time offender, expressed remorse and was a close relative of the deceased hence his loss was self-inflicting as he lost someone from whom he could get help in life. The prisoner was sentenced to 20 years. His Honour Gavara-Nanu J. commented though that this was a case where the prisoner ought to have been charged with murder.
    
33. The State v Jack Mek (1997) N1575: The prisoner, a youth in his early 20s was sentenced after trial for murder to 8 years imprisonment. He axed his step-father (his deceased biological father's brother) to death after he sided with his mother in an argument with the deceased over the prisoner's sister. The trial judge, His Honour Injia (as he then was) found that the prisoner was incited into killing the deceased by his mother. He took into account that the prisoner was "a young man who had a long future ahead without a father to help him make it through young life, marriage and other aspect of life. By his own doing, he has lost his step-father [and will have difficulty making] it through in life to become a man." He also took into account that loss of a close relative is a mitigating factor.
    
34. The State v Baipu (2003) N2451: The prisoner pleaded guilty to killing his uncle on suspicion that that the deceased was responsible for the death of his father and his wife through sorcery. The matter was taken to the Village Court where compensation was ordered against the suspects. The prisoner did not want to take the compensation until and unless the suspects handed over the implements of sorcery. The mediation was adjourned but soon after that the prisoner apprehended the deceased and another suspect and tortured them. The deceased died as a result while the other suspect escaped. He further apprehended and tortured another man and tortured him but the police intervened. It appeared also that the prisoner had previously undertaken not to harm the suspects but as it turned out he reneged on his undertaking. The Medical Report on the deceased revealed that his forearm was amputated, his radial artery was severed and that his left knee was fractured. The deceased died of severe and heavy blood loss. Even though the prisoner pleaded guilty and was a first time offender and of prior good character, His Honour Jalina J. sentenced him to life imprisonment.
    
35. The State v Matai (2011) N4256: The prisoner pleaded guilty to murdering his brother-in-law by cutting him with a bush knife. He inflicted several cuts to the deceased on various parts of his body. The prisoner and the deceased had long running tensions. The court found that there was non-legal provocation but the viciousness of the attack warrant a heavy sentence hence he was sentenced to 22 years.
    
36. So taking the above sentences as a guide together with the circumstances enumerated in Category 3 of Manu Kovi (20 – 30 years) and considering these against the circumstances of your case what should be the starting point for you? The circumstances of your, I think, should warrant a starting point of 20 years.
    
37. I have already found that you viciously attacked your 10 year old brother. It was a surprise attack and for all we know he may have been actually sleeping and not merely lying down on the mat when you attacked him. Hence he would have been completely oblivious to what was happening around him let alone know what was soon to befall him. The depositions do not show that he as much as cried out in pain when you struck him the first time and I can safely infer that that first blow from your knife cut him on the neck. You mother said that his neck was nearly chopped off so it is not surprising that the child did not make a sound. Your attack on the deceased was brutal and vicious and not provoked at all in any way by him and you manifested a very strong desire to cause grievous bodily harm or even kill him as I already said above.
    
38. I do accept the mitigating factors that I have found in your favour including the fact that this was act of parricide (fratricide to be exact) because you killed your own brother. However, I think that in your case this factor should not significantly reduce your sentence because you deliberately attacked your innocent and defenceless brother. I think that this is a case that calls for me to partly adopt and apply what His Honour Gavera-Nanu said in The State v Saku Sogave (supra) though I am not prepared to completely disregard or not apply this mitigating factor in your favour. In other words you will get a discount but it will not be significant given the serious circumstances of your offence. I do accept that you would be suffering already and weighed down heavily by the fact that you prematurely end the precious life of your kid brother. You will no longer see your family in the same light nor will they you. Things took a momentous turn for you and your immediate and extended family on that fateful night of the 27th of April 2012. Things will never be the same for all of you and you will forever carry a heavy burden.
    
39. In the final analysis I therefore feel that an appropriate sentence for you should be 17 years imprisonment. The period you spent in custody – 1 year 5 months and 7 days – will be deducted from that sentence. Hence you will serve 15 years 6 months and 23 days at Giligili Corrective Institution.
    

Ordered accordingly.

_______________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the prisoner