State v Minong [2016] PGNC 194; N6387 (18 August 2016)

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CRIMINAL LAW – Sentence - offence of wilful murder under section 299 of the Criminal Code Act Chapter No. 262 - prisoner also found guilty of aiding and abating under section 7 of the Criminal Code Act - prisoner had played minimum role in the commission of the offence - mitigation factors considered favourably for the prisoner - prisoner sentenced accordingly

The Court convicted the prisoner earlier for wilful murder. The prisoner was not directly involved in the killing but briefly participated with a group of men he was with at that time. At the time of the attack, prisoner withdrew shortly after and went back over to the beach. He stood there with some others and they threw stones in the direction of the deceased out towards the sea. The prisoner was also found to have called out together with others there on beach the words "Kill him" several times.

Goli Golu v. State [1979] PNGLR 653
Manu Kovi v. State (2005) SC 89
Michael Kamane Wai v. State (1983) SC263
Porewa Wani v. State [1979] PNGLR 593
State v. Hosea Hamau, Hamau Bulu, Casper Gagoma, Gidion Polos and Philip Hamau (1999) N1862
Steven Loke Ume v. State (2006) SC 836
Thress Kumbamong v. The State (2008) SC1017

1. ANIS AJ: The prisoner was found guilty for the offence of wilful murder under section 299 of the Criminal Code Act Chapter No. 262 (the Criminal Code Act). He was convicted on 10 May 2016. The Court ordered his Pre-Sentence Report (the Report) to be prepared. On 24 May 2016, the parties presented submissions on sentence. The Court reserved its ruling to a date to be advised.

3. Hubert Valaval (the deceased), a cousin of the prisoner, was wilfully murdered on 14 July 2011 at Nodup village in Rabaul, East New Britain Province. The Court found that the prisoner with a group of men planned and attacked the deceased as he was returning to the shore in his canoe after fishing out at sea that night on 14 July 2011. The deceased was cut on the side of his abdomen and parts of his intestines spilled out of his body. The deceased was still alive at that time. He was taken to the shores and laid on the side of the beach and after sometime, he died there at Nodup beach due to massive loss of blood.

4. The lead attacker among the group the Court had noted was David Bani. He was tried earlier separately and was convicted and sentenced for wilful murder.

6. The prisoner looks quite young and could easily fit in as a youth. His age, however, seems to be an issue. He is said to be '26 years old' in the Report. But in the antecedent report, the prisoner's date of birth was put down as 31 October 1993. The original information laid had his age as '20 years old' as at 28 March 2013. In my opinion and based on observing the prisoner in Court, he does not look like he is 26 years old. I will accept for this purpose that the prisoner was born on 31 October 1993. That being the case, the prisoner would now be 23 years old. The prisoner is not married. He comes for Nodup from the Kambiu LLG in Rabaul, East New Britain Province. He was adopted by his uncle (his father's elder brother) when he was less than 1 year old. His adopted parents raised him in Port Moresby. The prisoner spent all his childhood and adolescent years in Port Moresby. After his adopted father passed on, the prisoner returned to East New Britain to live with his biological father in 2006. His adopted mother also passed on a year later in 2007.

7. From his adopted family, he has six (6) offspring, one (1) female and five (5) males including himself. Nothing much is said of them in the Report.

8. The prisoner does not seem to have any formal trade, skills or training. He was never formally employed. The prisoner did not complete a formal education. He attended the Eki Vaki Primary School in Port Moresby but he left school after just completing grade four (4).

10. The prisoner was brief during administration of allocatus. In Court on 24 May 2016, he said:

11. The prosecution and defence submitted mitigating and aggravating factors. I have considered them. I will summarise my findings on these.

14. The penalty for wilful murder is set out under section 299 of the Criminal Code Act. I read:

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

15. The maximum penalty for wilful murder is death. But death sentence, based on the case law, is reserved only for the worst type cases (See cases: Goli Golu v. State [1979] PNGLR 653; Steven Loke Ume v. State (2006) SC 836; Manu Kovi v. State (2005) SC 89). In my opinion, the wilful murder committed by the prisoner herein falls outside of the worst type category.

16. How should this Court approach sentencing for this case? I refer to the case Steven Loke Ume v. State (2006) (supra). At paragraph 40, the Supreme Court held and I read:

40. The punishment for wilful murder must be considered in the same way punishment for other murder offences or any other criminal offence for that matter, is considered. The sentencing principles in homicide cases are settled. In the exercise of its sentencing discretion, the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must then balance these factors and determine a punishment which fits the particular crime.

17. The Court will adopt and apply these to the present case. The Court will also refer to other relevant case authorities in the later part of its judgment herein.

18. The first case I refer to is State v. Hosea Hamau, Hamau Bulu, Casper Gagoma, Gidion Polos and Philip Hamau (1999) N1862. This was a group attack. The deceased was axed from behind and fell to the ground. He fell face-down. He was held pinned to the ground and then he was stabbed several times from his back. The deceased died shortly after. His Honour the late Justice Jalina sentenced each of the five (5) accused to 25 years imprisonment. Time in custody was deducted from their sentences.

19. I note that in comparison with the present case, the manner of attack and type of injuries inflicted on the deceased by the five (5) prisoners appear more serious and vicious. All the five (5) prisoners in the above case played active roles in the actual killing of the deceased. Prisoner Philip Hamau used an axe to cut the deceased with on his neck from the back. When the deceased fell, prisoners Hamau Bulu and Casper Gagoma held the deceased firm to the ground. Prisoner Hosea Hamau used a knife to stab the deceased several times on his back. The fifth prisoner Gideon Polos stood on guard and prevented people who tried to assist the deceased.

20. The main similarity between the two cases is 'group attack'. In terms of culpability, the five (5) prisoners' involvement in commission of the crime in the case State v. Hosea Hamau, Hamau Bulu, Casper Gagoma, Gidion Polos and Philip Hamau (supra) were direct and serious compared to the prisoner in the present case. I found earlier that the prisoner herein was briefly involved in the initial attack on the deceased out at sea. But when the deceased sister arrived at the scene shortly after, the prisoner with some others withdrew and returned to the shore where they stood and watched whilst the others continued with the attack on the deceased out at the sea.

21. The second comparative case I rely on is Porewa Wani v. State [1979] PNGLR 593. The appellant was convicted together with Avia Aihi and three (3) others for the offence of wilful murder. The appellant was found guilty of aiding and abetting under section 7(2) of the Criminal Code Act. The Court found that she knew of the intention of the group and shouted, "Kill him" three (3) times at the time of the incident. The appellant was convicted and sentenced to seven (7) years imprisonment with light labour.

(ii) The three (3) other prisoners involved were sentenced to ten (10) and a half years each, imprisonment with hard labour; and

(iii) The appellant was sentenced to seven (7) years imprisonment with light labour.

23. The Supreme Court rejected the appellant's appeal and confirmed the sentence of seven (7) years.

24. The above case is similar to the present case in terms of the degree of culpability or participation in the crime. Prisoner Wani did not actually participate in the killing. She was found to be part of the group of people who had planned to kill the deceased. Secondly, at the time of the incident, prisoner Wani was also seen shouting out the words, "Kill him" three (3) times. As for the prisoner herein, he also knew of the plan to kill the deceased that night. He was also with the group of the boys on the beach who had shouted "Kill him" several times when the crime was being committed. But I will regard the degree of culpability of the prisoner herein higher to a certain extent compared to prisoner Wani's case. I say this because the prisoner was also briefly involved during the initial attack on the deceased out at sea before he and some of the others withdrew back to the shore to wait for the others.

25. Therefore, I think it would be reasonable to assume that a sentence term higher that seven (7) years may be appropriate for the prisoner herein.

26. The third and final comparative case is Michael Kamane Wai v. State (1983) SC263. The appellant with others were convicted of wilful murder. The appellant was sentenced to six (6) years four (4) months imprisonment with hard labour. His role in the offence was as a driver. He drove the assailants to the crime scene and back. He knew of their plan to kill. He did not participate in the actual killing. In his appeal, he alleged that his sentence was excessive. The Supreme Court dismissed the appeal.

27. If I compare the cases, I note that the prisoner herein had participated in the initial attack on the deceased to a certain extent before he returned to the beach. The main assailant was David Bani. David Bani remained out at sea with the others and together they had inflicted the wound on the deceased, which killed him.

28. I would rank the degree of culpability of the prisoner in the case Michael Kamane Wai v. State (supra) to be less serious compared to the actions of the prisoner herein but more serious than the actions of the prisoner in the case Porewa Wani v. State (supra). I say this despite the fact that prisoner Wani's sentence was slightly higher by six (6) months than prisoner Kamane.

29. I would rank prisoner Wani's degree of culpability or participation in the crime to be the least compared to prisoner Kamane and to the prisoner herein. Prisoner Wani knew of the 'plan to kill' but she did not participate in the actual killing except that she called out and encouraged it. I would rank prisoner Kamane's degree of culpability to be second or higher than prisoner Wani. I say this because in his case, he knew of the 'plan to kill' and he actually participated not directly but to an extent when he drove the assailants to and from the crime scene. For the present case, I would rank the prisoner's degree of culpability higher than the culpabilities of prisoners Kamane and Wani. The prisoner herein knew of the 'plan to kill'. And he briefly participated in the initial attack on the deceased out at the sea. Then he backed-off with some of the other men when he saw the deceased sister or as the deceased sister had approached them out at the sea. The prisoner and the others waited and shouted "Kill him" several times on the beach front. They also threw rocks in the direction of the deceased sister. They waited and when the others who were out at sea returned, they all left together.

30. The defence submits that the offence committed was not the worst type of wilful murder that would attract the death penalty. The defence submits the Court should impose a sentence of 20 years imprisonment. On top of that, the defence submits that the Court should consider a partial suspended sentence with an award of compensation to the deceased family. The defence submits in conclusion that the Court should give a lenient sentence to the prisoner taking into account his role in the crime.

31. The defence submits and wants the Court to also note the upbringing or back-ground of the prisoner as highlighted in the Report. In summary, the defence submits that the prisoner had been adopted and mistreated by his adopted parents particularly his adopted mother. The defence submits that these led to the prisoner confiding in crime and other illegal activities throughout his childhood and adolescent life.

32. The prosecution submits that based on the case law, the head sentence should be between 20 to 30 years imprisonment term. The prosecution submits that each case should be decided on its own merit and peculiar circumstances. The prosecution submits that sentencing is discretionary under section 19 of the Criminal Code Act. The prosecution submits that the aggravating factors far outweigh the mitigating factors. The prosecution submits that the degree of the prisoner's participation in the crime was slightly lesser to the main perpetrator David Bani. The prosecution submits that the prisoner's pre-custodial sentence should be deducted. The prosecution submits that nothing further should be deducted after the said deduction. In conclusion, the prosecution submits that the Court has the ultimate discretion to impose an appropriate penalty to reflect the crime that was committed.

33. I note that the actual killing itself is serious and those directly responsible should receive sentences that should exceed 25 years to life years imprisonment.

34. The prisoner's role in the incident was not as serious as that of the main perpetrator. I find the prisoner's degree of criminal culpability to be minimal.

35. I find the sentence range suggested by the parties between 20 to 30 years imprisonment, excessive. I note that both parties had relied on tariffs based on the case law, to reach the said range. With respect, this Court, on the other hand, sees differently. I say this firstly based on the degree of criminal culpability of the prisoner herein.

36. But more importantly, I say this taking into account what the Supreme Court has held in the case Thress Kumbamong v. The State (2008) SC1017. From paragraph 64 of the Supreme Court's judgment, I read:

64. This Court is thus of the view that, it is high time now to review the society’s approach to dealing with offenders through the courts. Not every case of human error is criminal and not every criminal case warrants imprisonment. The courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society.

65. Up to this point, the Supreme Court has provided guidelines for sentencing for almost all of the offences under the Code. In the case of manslaughter which is relevant for our purpose, the recent decision of the Supreme Court in Manu Kovi v. The State, xvi16 often comes up. However, that case has been the subject of some criticism because that decision tries to further categorize homicide cases and in so doing, provide for categories in which there is an intention or pre-meditated killing or there is an intention to do grievous bodily harm. These are critical factors in a case of wilful murder and murder respectively and therefore, they cannot come under manslaughter. As this Court said in its decisions in Simon Kama v. The State, xvii17 the Supreme Court cannot further categorize homicide cases for two reasons. Firstly, Parliament has already categorized such cases and secondly only Parliament can change it. The Court’s duty is only to interpret and apply the law as it is and be careful not to legislate in the guise of statutory interpretation and application.

67. Section 19 of the Code makes it clear that, a trial Judge has a wide discretion to impose any punishment from a term of years to life imprisonment. It is worth noting that, the discretion thus vested in the courts is not subject to any guidelines to be set by the Supreme Court or anybody. The discretion is instead left entirely within the discretion of a trial judge. That discretionary power ought to be exercised judicially and according to law and not arbitrarily, vaguely or fancifully. It must be exercised on proper grounds for good reason and not capriciously.

68. We do not dispute that, the Supreme Court can in the exercise of its appellate and supervisory role can only suggest how the courts can exercise the discretion vested in them under s 19. But care must be exercised to ensure and appropriately accommodate the fact that no hard and fast rule can be laid down as to exercise of judicial discretion, because from the moment you do, the discretion gets fettered.
(Underlining is mine)

37. Firstly, I adopt the principles held above herein. In my respectful opinion, I think the parties' submissions on sentences were aligned or were 'caught up in the web of the set tariffs' as imposed by the case law. I would prefer to get out of there particularly for this case, and I do so acknowledging the above principles as held by the Supreme Court in the case of Thress Kumbamong v. The State (supra). On the same note, I do acknowledge the significant role that tariffs or sentencing guidelines play, that is, as an important guiding tool when the National Court is considering a fitting sentence for an offence. This was also highlighted by the Supreme Court in the case Thress Kumbamong v. The State (supra).

38. Secondly, I am of the view and I find that a length of sentence should not be regarded or assumed as something that increases together with or over time. For example, if someone is convicted for an offence with similar type circumstances like an earlier offence committed 10 or 20 years ago, it does not mean, in my opinion, that because of the significant time difference, the current offence should generally receive a higher sentence. I think cogent evidence or reasons must be disclosed to realistically justify any significant increase in sentencing. I make this finding again putting much emphasis to what the Supreme Court has held and commented in the case Thress Kumbamong v. The State (supra).

39. I will impose a sentence of 14 years imprisonment upon the prisoner as the starting point. Because the prisoner was involved with the group of men in the initial attack on the deceased out at the sea, I had compared and treated his case to be higher in terms of criminal culpability against the cases Porewa Wani v. State (supra) and Michael Kamane Wai v. State (supra). Unlike these two cases as explained above in my judgment, the prisoner herein had participated briefly or to certain extent in the commission of the crime. I also took into account the fact that the deceased may not have been fatally wounded at that time when the prisoner had withdraw from the fight out at sea on that fateful night. These reasons have formed the basis for me reaching the sentence of 14 years as the appropriate starting point.

40. I look at the aggravating factors. I have discussed and made findings on the prisoner's involvement or culpability in the commission of the offence, which in general was minimal. I note that most of the aggravating factors cited above would apply to the main perpetrators for the offence and not the prisoner herein.

41. I look at the mitigating factors. The two points, which I think are important, are firstly that this was a one off incident. Secondly, the prisoner is a youth with a troubled background. Based on the Report, it seems that he was never shown real love and care in all his childhood life up to his adolescent life or say, up to about 2007. The prisoner was less than one year old when he was adopted and taken away to Port Moresby. He had been mistreated mostly by his adopted mother. This had led the prisoner to being used to recklessness and carelessness in his life.

42. The other factor I take into account is this. I do not believe that this is a sort of person who should be locked or be kept away from the society, for a very long time. On the contrary, this prisoner, in my opinion, should serve time in prison but on top of that, he should be allowed back to rejoin society.

43. Noting all these, I will deduct 4 years from the 14 years imprisonment term.

44. This Court will sentence the prisoner to 10 years imprisonment with hard labour.

45. I sentence the prisoner to 10 years imprisonment with hard labour for the offence of wilful murder.

46. In doing so, I will exercise my powers under section 3(2) of the Criminal Justice (Sentences) Act 1986 and deduct the pre-custodial time served by the prisoner. The prisoner was in custody since 28 March 2013. I note that he had escaped from custody for about 8 days so I will add that back onto the total number of days the prisoner is to serve in custody after applying the deduction.

47. In regard to the issue what would be the fitting sentence for this prisoner? my answer is "10 years imprisonment with hard labour less the time the prisoner has spent in custody."

Kelly Minong, having been convicted of one count of wilful murder under section 299 of the Criminal Code, is sentenced as follows:

Length of sentence imposed	10 years
Pre-sentence period in custody to be deducted	3 years, 4 months, 20 days
Time subtracted that was spent outside of custody, that is, 8 days	3 years, 4 months, 12 days
Amount of sentence suspended	Nil
Time to be served in custody	6 years, 7 months, 18 days
Place of custody	Kerevat Correctional Service

________________________________________________________________
Office of the Public Prosecutor : Lawyer for the State
Office of the Public Solicitor: Lawyer for the Prisoner

National Court of Papua New Guinea

State v Minong [2016] PGNC 194; N6387 (18 August 2016)