State v Komboni [2015] PGNC 63; N5991 (17 June 2015)

N5991

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 496 of 2015

THE STATE

V

ANTON KOMBONI
Respondent

Vanimo: Geita J
2015: June 4, 12, 17

CRIMINAL LAW – Guilty Plea – Victim slashed on the throat with tip of grass knife – Victim and prisoner young lovers- Disclosure of pregnancy forced prisoner into a rage -Murder, section 300 (1) (a) of the Criminal Code –

CRIMINAL LAW- Sentence – Favourable mitigation circumstances – Sizable compensation paid –Early guilty plea – youthful first time offender- Incarceration considered inappropriate – Rehabilitation considered instead – Prisoner given a second chance.

CRIMINAL LAW – Sentenced to 16 years less pre trial custody of 5 months. Nominal 3 years suspended – Remaining sentence wholly suspended on Probation with 200 hours work orders. Section 300 (1) (a) of the Criminal Code and Sections 16 & 17 Probation Act Ch No. 381.

Cases Cited

Acting Public Prosecutor -v- Joe Kovea Mailai [1981] PNGLR 258
Goli Golu v The State [1979] PNGLR 653
John Kalabus v The State [1988] PNGLR 193
Kuri Willie v The State (1987) PNGLR 298
Manu Kovi v The State [2005] PGSC 34; SC 789
St v Mavis Uraro (2012) N5164
St v Taulaola Pakai (2010) N4125
Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128
Thress Kumbakor vs State

Counsel:

Mr. Emmanuel Thomas, for the State
Mr. Baptist Fehi, for the Prisoner

JUDGMENT ON SENTENCE

17th June, 2015

1. GEITA J: Upon arraignment the prisoner Anton Komboni pleaded guilty to one count of murder contrary to s.300 (1) (a) 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.

The Facts

2. The relevant facts put to you during your arraignment and the agreed facts by the prosecution and your lawyer on the depositions for the plea of guilty with your consent are these. On the night of 3 January 2015, after you and the deceased Lucia Namtakorme had consensual sexual intercourse in nearby bushes at Hambasama-Sem village, you cut her throat with a grass knife resulting in her death. This was after the deceased confessed to you that she was pregnant which provoked you into pressing her to tell you who the man was.

Allocutus

3. When you were given the opportunity to speak on the question of penalty you said you were sorry to the court and to the deceased's family. You said this was your first time in court and that you are worried that your education will be affected.

Pre Sentence Report

4. A pre sentence report was requested on your behalf to which I have a copy. I thank the Probation Officer Mr Ben Kasanda for the report. The prisoner is aged 19 years, single male and comes from Ambasama village in Nuku, West Sepik Province. He was educated up to Grade 6 at Nuku Primary School and lives with his parents. He comes from a family of four siblings and survives on subsistence farming. He appears to be in good health and is very remorseful. The prisoner's parents and the victim's parents acknowledge their relationship and are all saddened. Although some "bel kol" monies of K10, 000.00 in cash and kind has been given the victims parents still demand some more money to the value of K50, 000.00. Your community generally speak very highly of you and stand ready to assist you rehabilitate back into the society. Your suitability for probation is recommended by the Probation Officer Mr. Ben Kasanda as you pose no real danger to the community. He said yours was the case of a teenager who unintentionally caused the death of his girlfriend. Mr Ben Kasanda's efforts in putting together your pre sentence report and means assessment report in quick time is highly commended. Courts are greatly assisted in their decision making process when good reports are produced.

Mitigation factors

5. 1. No prior conviction,
2. Early guilty plea,
3. Surrendered and co-operated with police
4. First time youthful offender.
5. Genuine remorse
6. Compensation paid evidencing remorse
7. De facto provocation

Aggravating factors

6. 1. Use of dangerous weapon, grass knife used in the attack,
2. Life lost
3. Prevalence

Submissions on sentence

7. In his oral submission on your behalf Mr. Baptist Fehi referred me to the case of Manu Kovi v The State (2005) N 789 and submitted that this case falls within the category 2 attracting a sentence range from between 16 years to 20 years. He conceded that the murder was serious however advanced that the prisoner's actions were not intentional. Some element of de facto provocation acted as a catalyst in this crime as they were both in a boyfriend/girlfriend relationship. Mr Fehi said when the victim admitted to the prisoner of a past sexual relationship with an unknown person the prisoner became enraged. Mr. Fehi drew my attention to the case of State v Mavis Uraro (2012) N5164. In that case the prisoner aged 22 years stabbed her husband's girl-friend to death. She was a youthful offender with two children aged 5 and 1 respectively. She pleaded guilty to murder, K22, 000.00 was paid as compensation. Amongst other reasons in her mitigation the court took into account her youthfulness, her husband's infidelity, expression of remorse and sentenced her to 12 years imprisonment less time spent in custody and suspended five years eight months and two days. Now considering the above case and the matter now before me the circumstances and factors are greatly varied however the tenor of mitigating factors appear similar.

8. In addition to reliance had on Manu Kovi (supra) Mr Fehi urged the court to exercise its discretionary powers under Section 19 of the Criminal Code and consider a lesser sentence. Furthermore he submitted that the court was not restricted by the sentencing guidelines enumerated in Manu Kovi. Court still had a wide discretion to go outside Manu Kovi guidelines. (Thress Kumbamong vs. State) He said this case was not the worst type of murder: (Goli Golu v The State [1979] PNGLR 653).

9. State Prosecutor Mr Emmanuel Thomas in reply conceded that the upper range of category 2 sentencing tariff in Manu Kovi case (supra) of 16 to 20 years to be appropriate under the circumstances. He conceded that the prisoners mitigating circumstances were overwhelming as against his aggravating factors. Two cases were relied upon by the State however I did not consider them to be relevant in this case and have accepted them as they were. Mr. Thomas however submitted that a head sentence of 16 years to be appropriate.

10. What than is an appropriate sentence in your case, I ask? I have had the benefit of submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner. Admittedly the death was tragic and not warranted. Persons most likely affected by the victim's death were her family members and perhaps yourself by virtue of your relationship to her as your wife as you claimed. It follows that your punishment in my view is self imposed and will be long lasting, psychologically that is.

11. Notwithstanding the fact that a serious crime has been committed I am inclined to think that yours was a case of a 'boyfriend/girlfriend' love relationship gone sour due to sexual jealousy. The moral issues to be learnt from your case are that you entered into sexual relations with your partner outside of marriage and at a very young age of 14 years. You both were still immature and not ready to face life's challenges. As is evident in this murder your immaturity in life coupled with sexual jealousy resulted in this crime. Now bearing those observations in mind I ask myself what utility will your incarceration bring to the community at large? Perhaps some sense of satisfaction that a criminal is now behind bars, good riddance. What about the cost of your incarceration and your maintenance to the State? One could easily argue that that consideration is of little significance and no concern to the courts save the Correctional Service. However true that may be the bottom line is that all criminal justice system agencies, including the courts all draw from the one budget funded by the people of Papua New Guinea. To my mind this case must be distinguished from other like crimes and treated separately due to this unique factual situation.

12. To this end I find comfort in a previous case law extending leniency involving a first time youthful offender. In the case of Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128 youth was considered as a mitigating factor. In the case of Kuri Willie v The State (1987) PNGLR 298 Hinchliffe, J as he was then, also discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first time offenders with imprisonment to be used as the last resort. (Emphasis mine). In another case of Acting Public Prosecutor -v- Joe Kovea Mailai [1981] PNGLR 258 Narokobi, AJ (as he then was) sentenced the prisoner to the rising of the Court as he had already spent sufficient time in custody while awaiting trial. His Honour said in part that it was the duty of Court's to protect young persons.

13 Against that backdrop, I am minded of the fact that Courts over time have cautioned itself against placing too much emphasis on family circumstances or situations in one's mitigation. Court's should not lose sight of its duty to impose what is a just and fair punishment on an offender." A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered." (State v Taulaola Pakai (2010) N4125, Hartshorne J.)

14. After the benefit which I have had on the cases presented before me including the ones I researched and the most helpful arguments for and against I consider a rehabilitative sentence most appropriate for this youthful young first time prisoner with a view to giving him a second chance in life. I have made allowance for your favourable mitigating factors. This is coupled with the fact that you pleaded guilty to this crime which saved the State time and money in running a full trial. It is often said that offenders who admit their crimes at very early stages of the criminal justice process must be rewarded with reductions in their ultimate sentences and this I do so now in your case. You are therefore sentenced to a head sentence of 16 years with hard labour less a nominal suspension of 3 years which will leave you with 13 years.

15. You are sentenced to 13 years imprisonment in hard labour with the following conditions:

1. I order a deduction of 5 months and some days for your pre trial custody period,
   
2. Resultant term of sentence: 12 years and some days.
   
3. I will order that the whole of the remaining sentence to be wholly suspended on Probation with the following conditions:
   
   1. You shall comply with all orders provided under The Probation Order for 6 years;
      
   2. You shall keep the peace and be off good behaviour for the same period as above;
      
   3. You shall not consume alcohol;
      
   4. You shall endeavour to complete your education;
      
   5. You shall be brought before this court or another court of similar jurisdiction upon breach.
      

Orders accordingly,
_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner