State v Hulaware (No.2) [2015] PGNC 257; N6144 (10 December 2015)

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CRIMINAL LAW – Sentence after trial – Wilful murder –Victim stabbed with a screw driver under his armpit – Family feud with long harboured grudge - Section 299 (1) Criminal Code

CRIMINAL LAW – Sentence after trial - Wilful murder – Contrition not demonstrated –Mitigating factors outweighed by aggravating factors – Presence of alcohol not an excuse – Long term deterrence sentence considered - Prisoner sentenced to 60 years in prison, less pre-trial custody periods -Section 299 (1) of the Criminal Code.

Cased Cited:
Goli Golu 1979 and John Kalabus [1988] PNGLR 193
Manu Kovi v The State [2005] PGSC 34; SC 789
Steven Loko Ume & 3 Others v The State (2006) SC 836
The State v Koeskapi (2004) N2654
Thress Kumbamong v The State (2008) SC 1017
Ure Hane v The State (1984) PNGLR 105

1. GEITA J: The prisoner has been found guilty after trial on one count of wilful murder contrary to s. 299 (1) of the Criminal Code Act. This offence attracts a maximum penalty of life imprisonment however Section 19 (1) (a) (b) of the Criminal Code gives courts powers to impose a lesser sentence.

2. The brief facts as found during your trial and conviction on 2 December 2015 are these: After an all out drinking spree with several boys at Yangoru District Station on 19th December 2015 which lasted well into the early morning hours the next day, the accused and the deceased were alone and returning to their homes. Along the way the prisoner stabbed the deceased under his armpit with a screw driver he was carrying, killing him instantly. The prisoner was the deceased's brother in law. The killing stemmed from a disturbed marital relationship which culminated into deep hatred between the prisoner, his estranged wife and all her family members.

4. Upon administering the allocutus on the prisoner pursuant to section 593 of the Criminal Code, the prisoner lamented on the destruction of his family trade store and property as a result of this incident and urged the Court to take that into consideration. The prisoner said he was married with three young children with his other wife to look after and expressed great concern for their welfare and schooling. He said although he has three other brothers and sisters he does not think highly of them taking care of his children and asked for leniency. His parents were old and not in a position to take care of his family.

7. Mr. Malambaul for the prisoner pleaded for a long term of imprisonment as opposed to the death penalty and invited court to take note of the prisoner's plea in his allocutus including the destruction and loss of his family property and home as a result of the crime. The prisoner is aged 35 years and married with two wives with 4 children in between them. His children are aged between an infant child up to 7 years. He comes from a family of 6 children with him being the second in the family. Both his parents are old. He is a follower of SDA faith and has been baptised.

8. In his prepared submission Defence Lawyer Mr. Malambaul referred me to the case of Manu Kovi v The State (2005) N789 and advanced that this case falls with the category 2 range attracting a sentencing range from between 20 to 30 years. He conceded to the facts that a weapon was used however remained indifferent that the stab was vicious as no vital parts of the body organs damaged. Mr. Malambaul submitted that this case was not the worst of its kind and urged court not to impose the maximum sentence available. The following cases were cited in support. Ure Hane v The State (1984) PNGLR 105; Steven Loko Ume & 3 Others v The State (2006) SC 836.

9. I have been referred to four different cases ranging from domestic setting killing to land dispute related killings which has attracted sentences from a low 20 years to a high life imprisonment. I am at a loss to find their relevance in this case and decided not to quote them in this judgment. As I understood from defence submissions those four cases must be distinguished from his client's case in that only a single blow was inflicted on the deceased. Mr Malambaul submitted that a sentence of 25 years be considered. Might I add that the cases referred to me have their own peculiar set of facts resulting in the trial judge arriving at sentences contained there-in. In the case before me the peculiar set of facts in my view is that the murder was committed one on one and confined to their two families from a pent up harboured grudge. Their tribe or clan was not directly affected as has happened in some of the case referred to me. In short any associated rippling effects resulting from this crime is minimal. I do hope that the cases were not hurriedly put together with a view to distracting this court's attention.

10. The State Prosecutor Mr. Paul Tusais submitted that the upper range of category 3 sentencing tariff in Manu Kovi case (supra) be considered in light of the seriousness and gravity of the murder. He advanced that a screwdriver was used to inflict the injury. The prisoners pleaded not guilty and were found guilty after trial. The killing was brutal and an innocent life taken away from his family. Mr Tusais submitted that the prisoner's pleas for leniency and concern for the destruction of his family home and property were the unfortunate consequence of the state of affairs resulting from homicide cases in Papua New Guinea, not lawful justifications though.

11. Mr. Tusais took issue with Defence submissions that since only one single blow was inflicted with no vital organs damaged, a consideration for a lesser sentence be considered. He submitted that a murder is a murder irrespective of whether only one blow was inflicted or multiple blows; somebody has been killed as a result of that one blow.

12. I am loathed to agree with defence plea for a lesser sentence on this point alone. Genuine mitigating factors for instance first time offender, no prior criminal records, exemplary standing in the community may suffice but definitely not the one act of single blow, without any vital body organs damaged.

13. The State referred the court to the case of The State v Koeskapi (2004) N2654 to me which bear resemblance to the factors now before me. In that case the prisoner was seen in company of the deceased earlier in the morning to the afternoon where he found his fate at the hands of the prisoner. As they both were alone in a rugby field he was stabbed in his neck with a bayonet killing him instantly. Despite his early guilty plea and favourable mitigating factors the court sent him to life imprisonment. Besides other considerations the sentencing judge described the killing as gruesome, barbaric and carried out with a calculated move.

10. Now in deciding at what point I should peg the sentence in this case I need not look further than the primary facts including the aggravating factors. To me there is overwhelming aggravating factors pointing to the direction of Category 3 of Manu Kovi case. (The killing was brutal, Killing in cold blood, Killing of an innocent life, defenceless or harmless person, Dangerous or offensive weapons used. It follows therefore that the crime committed by the prisoners could easily fall within worst type of murder attracting the maximum prescribed sentence of death.

11. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193). I am more inclined to agree with the State submission that this act of killing was uncalled for, unwarranted and cowardly. An innocent life tragically lost as a result of the attack.

12. In order to arrive at a sentence which is near proportionate to this crime I must go to the aggravating factors and the primary evidence before me. The prisoner has been found guilty of this crime, he was under the influence of alcohol at the time, he harboured a grudge against the deceased and his family members, he used a dangerous weapon, the crime was pre planned. As can be seen from the above factors the crime would easily fall within category 3 of Manu Kovi sentencing tariffs of death penalty. This trial was contested and so a consideration for a sentence beyond the set tariff considered appropriate in my view. A non-contested trial in my view would warrant a lesser sentence for obvious reasons.

13. Furthermore the prisoner in my view has not demonstrated genuine contrition over the crime he committed. He demonstrated a no care attitude to the family members and relatives of the deceased, and more so the death that he caused. I did not hear or record any instance of genuine remorse expressed by him. Instead he was more concerned about his family, his children, their welfare and his property. To me, this is quite disturbing and one could easily sense that he was still harbouring grudges against the deceased's family, more so his estranged wife. The prisoner's plea for his children's welfare is noted however they are outweighed by aggravating factors. In short the prisoners remaining mitigating factors are far outweighed by his aggravating factors.

14. In light of the escalating trend of homicide cases in this province, courts have been imposing longer prison terms these last few years however I cannot honestly say that this has deterred perpetrators from committing such heinous crimes. This case is no different. I state here a few cases decided here in this province for purposes of comparison:

No.	Decision Date	Published	File No	Plea	Sentence
1	2013: MAY 22	N5558	CR 898, CR 903, CR904 OF 2011 THE STATE v VINCENT ITAAR, SYLVESTER MINJIMARIN & PAUL MINJIMARIN	Guilty after trial	20 yrs each
2	2015: MAY 15	N6017	CR. 499 AND 450 OF 2011 THE STATE v KINGSFORD KARI & CLIVE DUGUMARI	Guilty after trial	25 years each IHL
3	2013:		CR 1198 & CR 1201 OF 2009 THE STATE v TONY EMMANUEL & EDWARD YAU	Guilty after trial	40 years & 30 years respectively
4	2015: MAY 21	N6015	CR. 339 OF 2009 THE STATE v GENESIS SIMBA NO.2	Guilty after trial	50 YRS
5	2014: 6 JUNE	N5652	CR 1245 OF 2013 THE STATE v TONIAS KURUS	Early Guilty Plea	60 years Less days in custody 59 year and 4 days

15. It follows that a longer prison term over and above what has been prescribed is warranted in this case based on the principle of deterrence and incarceration. Whilst I have taken judicial notice and the usefulness of the Koeskapi case (supra) I will refrain from applying the ultimate sentence imposed therein. The distinguishing factor in my view in that case was that it arose from a payback killing hence the need to clamp down on this emerging evil. The prisoner's case is isolated and only impacts on one family and not the whole tribe or village. As a result I will instead consider a longer prison term more appropriate under the circumstances. After the benefit which I have had on the cases presented before me and the most helpful arguments for and against from both lawyers I have come to the conclusion that the appropriate sentence to be imposed upon you is beyond the top range of Category 3 in Manu Kovi sentencing tariff: 60 years.

Obert Hulaware	Sentenced to	60 years
	Less pre-trial custody	3 years 9 months 2 weeks.
	Balance sentence to be served	56 years 2 months 2 weeks

Sentence accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner

National Court of Papua New Guinea

State v Hulaware (No.2) [2015] PGNC 257; N6144 (10 December 2015)