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State v Korop [2016] PGNC 141; N6336 (14 April 2016)

N6336


PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 201 OF 2014


BETWEEN

THE STATE


AND
KAPI KOROP


Kundiawa: Liosi, AJ
2016: 7thApril & 14thApril


CRIMINAL LAW – Sentence –Murder – Guilty plea – Election related violence – Prisoner shot deceased with high powered firearm from the back – Bullet exiting from the chest – Mitigating factors considered – First time offender – One off incident – Some remorse – Aggravating factors considered – Use of dangerous weapon – Unlicensed firearm – Deceased was unarmed and fleeing – It was a brutal killing in cold blood – Complete disregard for human life – Prisoners version of events on allocutus different from or conflicts with brief allegations of facts – Sentence based on events most favourable to prisoner.

CRIMINAL LAW – Sentencing guidelines set by Manu Kovi discussed in light of Thress Kumbamong v. The State – Courts sentencing discretion under s. 19 unfettered –

CRIMINAL LAW – Appropriate sentence – Aggravating factors far outweigh Mitigating factors so much so they become insignificant – Head sentence of 25 years imposed – No Pre-sentence Report warranting suspension of any part of sentence.


Cases Cited:
Anna Max Marangi v. The State (2002) SC 702
CRA No. 64 of 1994 Antap Yalu v. The State
Goli Golu v. The State (1979) PNGLR 11
Imiyo Wamela v. The State (1982) PNGLR 269
Jack Tanga v. The State (1999) SC 602
John Baipu v. The State (2005) SC 796
Koniel Alar and Hosea Biu v. The State (1979) PNGLR 300
Law v. Deed (1970) SASR 374
Manu Kovi v. The State (2005) SC 789
Roger Jumbo and Aidan Awatan v. The State (1997) SC 516
Simon Kama v. The State (2004) SC 740
The State v. Issau Parao (2008) N3625
The State v. John Kapil Tapi (2000) SC 635
The State v. Kobua Kove (2010) N4063
The State v. Laura (No.2) (1988-89) PNGLR 98
The State v. Mapa Lom (2012) N4725
The State v. Marcus Woibun (2012) N4631
Thress Kumbamong v. The State (2008) SC 1017
Uname Aumane v. The State (1980) PNGLR 510
Ure Hane v. The State (1984) PNGLR 105

Counsel:

Mr. K. Umpake, for the State
Mr. M. Yawip, for the Prisoner


JUDGMENT ON SENTENCE

14th June, 2016

  1. LIOSI AJ: On the 7th April 2016, the prisoner pleaded guilty to one count of murder of one Bangye Konge at Kup, Kerowagi District in the Chimbu Province on 6th September, 2013 contrary to section 300(1)(a) of the Criminal Code.

Brief Facts

  1. The brief facts upon which the prisoner was arraigned to which he pleaded guilty are as follows. The accused brother Peter Korop contested the Kup local level government presidential seat in the Kerowagi District, Simbu Province and lost. The prisoner, his brothers and relatives blamed the deceased and his brothers for the election loss of Peter Korop.
  2. At about 6pm on 6th September 2013 at Kup Station in the Kerowagi District the accused saw the deceased. The accused approached the deceased armed with a high powered rifle. The deceased realized this and ran for his life. The accused fired and missed the deceased at first instance. He then fired a second shot at the fleeing deceased. The deceased was hit on his back and the bullet exited from his chest. He died of the gunshot wound whilst in transit to Kundiawa hospital.

Sentencing Issues

  1. The main issue for determination is the appropriate sentence for the prisoner. To answer this, I need to consider the following. The relevant facts and circumstances surrounding the case, mitigating and or aggravating factors, any extenuating circumstances, the sentencing trend for this kind of offence and whether any part of the sentence ought to be suspended.

Antecedents

  1. The prisoner is from Kungu Village, Kup Local Level Government, Kerowagi District, Chimbu Province. He is a villager with no formal education and is married with 7 children. He has no prior convictions and is 49 years old now.

Allocutus

  1. In his allocutus the prisoner said the following;

He is sorry to Father God in Heaven and sorry to the Court. The State witness Robert Tai Kongo is the complainant in the proceedings and was involved in the trouble. On or about 5th September 2013, he was advised by a Mr. Kela Komboi that Robert Tai Kongo and the others were planning to attack him. On the 6th September 2013 they came to his place at Sirono. Kombane Konge the state witness was leading the big group of people. He was in possession of a single shot gun. At the prisoner’s place he called out, now I am here. He fired the first shot at the prisoner. The prisoner than ran into the house and got a community gun and came out of the hospital gate. The group of people started running away. He fired the first shot at Kombane Konge and missed. He then fired the second shot which killed the deceased. He was doing this to try and protect the new sawmill machine put in the house. He apologised for shooting the deceased. He said they fired at him first so he fired back.


  1. On 7th September 2013, police went and arrested thirteen innocent people. On the 8th day, they went back and burnt two permanent buildings, six semi-permanent buildings and twenty one bush material houses. They took his wife and raped her till day break with two other young ladies and one young school girl.
  2. He says he is married with seven children, three of whom are in high school. The problem he received now is by accident. He respects the law and has surrendered himself to court. That on 8th July 2014 although there was a mass breakout from Barawaghi Correctional Service, he didn’t run away from prison. He is very sorry and has asked the court to have mercy on him.

Submission by Defence

  1. Mr. Yawip of counsel submits that this is not the worst case of murder and therefore does not deserve the maximum prescribed penalty of life imprisonment under section 300 (1) (a) of the Criminal Code. Further the court has discretion under section 19 of the Criminal Code to impose a lesser sentence.
  2. It is trite law that the maximum penalty is reserved for the worst type of offences pursuant to the principles established in Goli Golu v. The State (1979) PNGLR 11. Though this case is considered serious it does not fall into the worst category cases. He sets out various factors in support of his contention.
  3. He submits that the prisoner pleaded guilty to the charge saving time and resources in conducting a trial, he has expressed remorse and has no prior convictions. He further submits that this is an election related threat of violence to him which culminated in the killing hence there was a degree of provocation.
  4. Further the prisoner in his allocutus says his houses were burnt, his wife and other woman in the village were raped and were subjected to jungle justice so he says which are relevant factors in mitigation.
  5. Counsel referred the court to the sentencing tariffs set by the Supreme Court in Manu Kovi v. The State (2005) SC789 to consider when sentencing. He submits that the current case falls into category 2 as there was some preplanning, element of viciousness, a weapon was used and there was no strong intention to do grievous bodily harm. He submits that a sentence of 15 - 20 years is appropriate considering the circumstances.

State Submission

  1. Mr. Umpake of the State on the other hand submitted that there are strong aggravating factors against the prisoner. They included the use of a dangerous weapon which was a high powered firearm, the firearm was unlicensed and was in the possession of the prisoner for some time, the prisoner ensured the deceased was shot when he fired the second fatal shot after missing with the first shot, the shot was fatal killing the deceased, the deceased was unarmed and defenceless and was in fact fleeing for his life when he was gunned down, it was a brutal killing in cold blood and there was a complete disregard for human life.
    1. In mitigation the prisoner pleaded guilty, it was a one off incident, he was a first time offender and showed some remorse.
    2. He submits that the aggravating factors far outweigh the mitigating factors. The seriousness of this crime cannot be watered down by inadequate mitigating factors. That if the Court should accept this part of the States submission then it follows that the mitigating factors are reduced in weight and the Court should give little or no reliance at all on the mitigating factors when determining the appropriate penalty.
    3. Mr. Umpake says the aspect of sentencing for a crime serves various purposes. It includes deterrence, separation, rehabilitation and retribution. The Courts have worked around these theories to determine the appropriate penalty.
    4. On the issue of what is the appropriate penalty, Mr. Umpake refers me to a number of Supreme Court authorities including Acting Public Prosecutor v. Uname Aumane (1980) PNGLR 510 which discusses the theories of sentencing, Simon Kama v. The State (2004) SC 740, and more recently the Supreme Court case of Manu Kovi v. The State SC 789.
    5. Manu Kovi is an end product of a careful analysis of homicide cases such as Simon Kama v. The State (Supra). The case establishes the sentencing guidelines and the various categories a particular case may fall into depending on its facts and circumstances.
    6. The State submits that the present case falls into category 3 of murder cases set out in Manu Kovi’s case which suggests a sentencing range of 20-30 years imprisonment. In the upshot the state submits that a term of 25 years imprisonment would be the appropriate starting point in this case.

The Offence

  1. The offence with which the prisoner is charged with is provided for by section 300 (1) (a) in the following terms:-


300. Murder
(1) Subject to the succeeding provisions of this code, a person who &ـʔ< < ;d &##60;&< kilos an pheron under any oany of the following circumstanc ټ&##160;;ټ&##160; < & ;d gu60;guilty ilty ilty of muof murder:rder:-

(a) if the offender intended to do grs bodarm t ټ&##160;  &#660 ##160&   &##10;& &##160; per0;person killed or to otme other person; or

Penalty: Subject to section 19, imprisonment for life.


ncingd

  • Murder is the second most serious of homicide offences thereby attracting the maximum penalty of life imprisonment subject to section 19 of the Criminal Code. Courts lately have introduced guidelines in an effort to bring consistency in sentencing in homicide cases.

    1. This has started with the case of The State v. Laura (No.2) [1988-89] PNGLR 98. The Late Chief Justice Sir Buri Kidu said the starting point on a plea of guilty for murder should be 6 years where there are no special aggravating factors. Where there are strong mitigating factors such as youthfulness or very advanced age of the accused then a sentence of less than 6 years may be considered. However where the charge is denied, sentence should range between 8 - 12 years or more if strong aggravating factors are shown.
    2. Tariffs have since been reviewed in many subsequent cases by the Supreme Court. This included manslaughter and murder cases in the domestic settings. See cases of CRA No. 64 of 1994 Antap Yalu v. The State unreported, Supreme Court judgment dated 31 May 1996, Jack Tanga v The State (1999) SC 602 and The State v John Kapil Tapi (2000) SC 635. In these cases the trial Courts seem to have distinguished and become lenient on unintentional killings in domestic settings as opposed to those in non domestic settings.
    3. The Supreme Court in Antap Yalu (Supra), Jack Tanga and John Kapil Tapi held that unintentional killings in domestic settings were increasing and therefore sentences must also increase to be on par.
    4. In Anna Max Marangi v. The State (2002) SC 702, on an appeal against a sentence of 9 years for manslaughter, the Supreme Court discussed the above cases and the existing tariffs in manslaughter cases in domestic settings. It noted that sentences had increased up to 16 years in response to an increase in this type of unlawful killing.
    5. As the tariffs in unlawful killing sentences had increased there should be corresponding increases in murder cases sentencing. Consequently in Simon Kama v. The State (2004) SC 740 (Sevua, Kandakasi and Lenalia JJ) finally reviewed and adjusted the sentencing tariffs for murder.
    6. The court also noted some erroneous practices to classify murder cases. See case of Ure Hane v. The State (1984) PNGLR 105 which sought to differentiate the wilful murder of classes of people as constituting different categories of wilful murder. The classification of murder cases was held to be erroneous. That has already been done by parliament which has classified homicide offences into wilful murder, murder and manslaughter.
    7. The correct approach therefore was that once guilt was established whether on plea or trial. The court should begin by considering the maximum prescribed penalty. It must then allow the offender to make out a case for a lesser penalty through the usual process of mitigation.
    8. The court was of the view that the guidelines set out in the State v. Laura (No. 2) (Supra) and Lawrence Simbe v. The State (Supra) needed to be varied; it therefore laid down the following guidelines.

    (a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

    (b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

    (c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty one (31) years to life imprisonment;

    (d) On a plea of not guilty with no other aggravating factors a range of sentences from seventeen (17) to twenty one (21) years;

    (e) On a plea of not guilty, with no other aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty two (22) to forty (40) years;

    (f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty one(41) years to life imprisonment;

    A trial judge has the discretion to impose a sentence below these guidelines where there exist good mitigation factors such as a very young person persuaded by other to commit the offence falling short of the defence of compulsion to commit the offence or for other very good reason.

    1. These tariffs were again reviewed by the Supreme Court in Manu Kovi v. The State (Supra). This decision made a comprehensive review of the existing tariffs for wilful murder, murder and manslaughter cases. Set out below are the relevant sentencing guidelines.
    Category
    Circumstances
    Sentence
    1. Plea.
    - Ordinary cases.
    - Mitigating factors with no aggravating factors
    - No weapon used
    - Little or no pre-planning.
    - Minimum force used.
    - Absence of strong intent to do GBH
    12-15 years
    2. Trial or plea
    - Mitigating factors with 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.
    - Mitigating factors reduced in weigh 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
    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 offence.
    - Pre-meditated 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

    1. The guidelines in Manu Kovi were however reconsidered in the recent Supreme Court decision of Thress Kumbamong v. The State (supra). In particular, I note the principles stressed therein that a court should be careful not to fetter its sentencing discretion by confining itself to strict guidelines set in Manu Kovi’s case.

    Decision

    1. To arrive at an appropriate sentence for the prisoner I will have to consider the mitigating and aggravating factors for and against him. I will also need to consider the circumstances surrounding the killing.
    2. I find the following factors in his favour;
    3. I find the following aggravating factors against him;
    4. I now proceed to determine sentence that is appropriate in the circumstances of the case and whether this case falls into the worst category so as to attract the maximum penalty of life imprisonment.
    5. Before I can answer the above, I am faced with a preliminary issue which I must answer. That is for purposes of sentencing there are two different versions on the day of the murder. I have the brief facts upon which the prisoner was arraigned to which he pleaded guilty and his versions of the events as stated on his allocutus. As both versions are contrastingly different which do I adopt for purposes of sentencing as they are significantly contradicting?
    6. Counsels did not make any submissions on the issue as it only came to my attention when the matter was adjourned for sentence; hence it was never raised with them.
    7. In any event the law on this issue is quite settled in this jurisdiction. The Court shall accept the versions most favourable to the prisoner. The Supreme Court in Koniel Alar & Hosea Biu v The State [1979] PNGLR 300 affirmed this and provided some guidelines as to acceptance of facts in guilty plea cases particularly when there is a conflict in the version of facts for and against an accused. The Supreme Court cited with approval amongst others the following passage by Bray CJ, in Law v Deed [1970] SASR 374:

    “The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the defendant alone ............ [I] if a defendant disputes circumstances of aggravation alleged in sworn evidence from the prosecution, he must do so by sworn evidence from himself or someone else: if on the other hand and denied on the other, in an unsworn form, then it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused ........................................


    The court can reject the explanation if it passes the bounds of reasonable possibility, but I do not think it ought to take this course without giving that defendant an opportunity to support his story by his oath and that of any other witnesses he desires to call. Some stories which might appear incredible when related in oration obliqua by counsel, or for that matter by the defendant himself, become believable, or at least appear as if there is a reasonable possibility that they might be true, when related on oath in the box and after surviving the test of cross-examination.”


    1. Subsequent decisions of the Supreme Court such as the one in Imiyo Wamela –v- The State [1982] PNGLR 269 and Roger Jumbo & Aidan Awatan -v- The State ( 1997) SC 516, endorsed and applied the above passage.

    1. Further, it has been said that a sentencing judge should not take into account facts and circumstances which constitute a different or more serious offence from that with which the offender has been charged. In John Baipu v The State (2005) SC 796, the Supreme Court (Sevua, Sawong & Lay JJ), held that a sentence judge should not take into account an act, omission, matter or circumstance if the circumstances would then establish:
      1. a separate offence which consisted of, or included, conduct which do not form part of the offence of which the person to be sentenced has been convicted; or
      2. a more serious offence than the offence of which the person to be sentenced has been convicted.
    2. In the case of the State v Issau Parao N3625, Makail J said as there were two different versions of the events on the day of the murder he accepted the version most favourable to the prisoner and sentenced him on those facts to 15 years in hard labour. The differing events related to whether the prisoner committed the murder in the course of another crime namely armed robbery hence there was no circumstances of aggravation.
    3. Given this position in law, I accept the version of events given by the prisoner on his allocutus and will proceed to sentence him on that basis. I also find that the account of the prisoner is not unreasonable, incredible or unbelievable in the circumstances.
    4. Having made that ruling I will proceed to look at some of the murder cases by way of comparable verdicts to assist and guide me to determine an appropriate sentence. I therefore note and cite the following cases:
      1. The State v. Marcus Woibun (2012) N4631.

    In this case the offender used a Winchester type pump action shotgun capable of discharging 5 rounds at one time and shot the deceased at close range from the back on the buttock. The injuries extended to the abdomen region including the uterus causing death within a few hours. David J imposed a term of 25 years imprisonment in hard labour.


    1. The State v. Mapa Lom (2012) N4725.

    The prisoner found his wife having sexual intercourse with another man. The prisoner chopped her instantly with a bush knife on her head, arm and leg. Both the left arm and right ankle were completely severed off and her skull was split open exposing the brain tissues. Gauli, AJ sentenced the prisoner to 18 years imprisonment in hard labour.


    1. State v. Kobua Kove (2010) N4063.

    In this case the prisoner shot the deceased on the chest who died from the gunshot wound. This was a case where the prisoner’s mother was having an extra marital affair with the deceased. David, J imposed a term of 24 years imprisonment in hard labour.


    1. Simon Kama v. The State SC 740.

    This was an appeal to the Supreme Court against sentence of 25 years on a guilty plea to a charge of murder. The offence was committed in conducting a planned armed robbery with the use of 3 firearms on the highway. The deceased driving a vehicle slowed down to stop and the appellant shot him on the head killing him instantly. The appeal was dismissed and the National Court sentence was confirmed.


    1. Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. The Court however has considerable discretion whether or not to impose the maximum penalty by virtue of section 19 of the Criminal Code.
    2. I will apply the sentencing guidelines for murder as set out in the Supreme Court case of Manu Kovi. This was a vicious attack with a very dangerous weapon and with little or no regard for human life.
    3. Whilst noting and deciding which category of Manu Kovi this case will fall into, I note the principle in Thress Kumbamong's case that the Courts sentencing discretion still remain unfettered.
    4. I accept the mitigating factors submitted by the defence. That is the prisoner pleaded guilty, it was a one off incident, he is a first time offender and has shown some remorse.
    5. I also accept the aggravating factors as submitted by the prosecution. That is the weapon used was a dangerous and a high powered weapon, the firearm was unlicensed and was in the possession of the prisoner for some time, the shot was fatal directly resulting in death, the deceased was unarmed, defenceless and was in fact fleeing for his life when he was gunned down, this was a brutal killing in cold blood and there was a complete disregard for human life. In actual fact, the mitigating factors have been watered down so much so to the point of been insignificant.
    6. As can be seen from the above, the aggravating factors far outweigh the mitigation factors.
    7. I compare this case with the State v. Marcus Woibun (2012) N4631. In this case the prisoner shot the deceased with a Winchester type SPA Mossberg pump action shot gun capable of discharging 5 rounds at a time. The prisoner shot the deceased at close range from the back on her left buttock. The injuries extended to the abdomen region including the uterus causing death within a few hours. The prisoner was sentenced to 25 years imprisonment in hard labour. There was no pre-sentence report to warrant suspension of any part of the sentence.
    8. I find the circumstances of the current case to be similar to the above case. The similarities include the use of a high powered firearm, there was some preplanning involved and there was a strong desire to do grievous bodily harm. As stated earlier on the aggravating factors far outweigh the mitigating factors so much so that they have been reduced insignificant by the gravity of the offence.
    9. Having considered all the aggravating factors, the mitigating factors, the circumstances of the case and the cases cited by way of comparison. I think this case fittingly falls into the third category of Manu Kovi’s case. The category calls for a penalty of 20 - 30 years.
    10. Given the circumstance of this case, the prevalence of this type of offence and the need for deterrence, the appropriate sentence would be 25 years imprisonment in hard labour. I deduct pre-sentence custody period of 2 years 9 months. The prisoner will therefore effectively serve 22 years 3 months.

    1. There is no pre-sentence report to warrant any part of the sentence to be suspended.
    2. I will issue a warrant of commitment forthwith.
    3. I further order the immediate destruction of the firearm.

    Sentenced Accordingly,

    Public Prosecutor: Lawyers for the State
    Public Solicitor: Lawyers for the Prisoner


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