State v Gawol [2016] PGNC 263; N6460 (30 August 2016)

N6460

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 870 OF 2014

THE STATE

V

OALA GAWOL

Popondetta: Auka, AJ
2016: 18^thJuly & 30^th August

CRIMINAL LAW – Sentence – Murder – Accused with others planned to break enter and steal from store - Sole intention – The plan was interrupted by the deceased - co-accused stabbed deceased with knife and died from injury – Murder invoking s.7 and 8 – Guilty plea – First time offender – Expression of remorse - Upon arrest Police used gun and shot his leg–caused permanent disability – Mitigation and Aggravating factors considered – Custodial sentence appropriate – Less time spent in Pre-trial custody - s.300(1) (b)(1) and s. 19.

Case Cited:
Avia Aihi v. The State (No.3) [1982] PNGLR 92
Goli Golu v. The State [1979] PNGLR 653
Lawerence Simbe v. The State [1994] PNGLR 38
Manu Kovi v. The State (2005) SC 789
Secretary for Law v. Wirasep Binengin [1975] PNGLR 172 & 175
The State v. Paul Mesida (2016) N6246
The State v. Wakore (2007) N3223

Counsel:
Ms Babra Gore, for the State

Mr. E Yavisa, for the Accused

DECISION ON SENTENCE

30^th August, 2016
1. AUKA AJ: The accused pleaded guilty to one count o Murder Contrary to Section 300 (1) (b) (1) of the Criminal Code. This provision reads;

“ S. 300. Murder
(1). Subject to the succeeding provision of this Code, a person who kills another person under any of the following circumstances is guilty of Murder
.......
(b) if death was caused by means of an act
(i) done in the prosecution of an unlawful purpose; and
........................
Penalty: subject to Section 19, imprisonment for life”.

2. The brief facts of the case were that on 28^th day of January, 2013 at about 3:00 am and 4:00 am the accused and others gained entry into Kamsi Trading store by cutting the back fence with intention to steal. The Kamsi Trading is owned and operated by the deceased and his family. The building is big and the family operate a shop on one side and use the other half as accommodation. At the material time the deceased was sleeping in the living room when the accused and his friends went into the house. It happened that the deceased got up and went to the toilet. On his return, he grabbed one of the co-accused who started calling out for help. Then the accused and his friends confronted the deceased and grabbed him and one of them hit the deceased using a piece of iron, after which one of them stabbed the deceased with a knife on the chest. Then all of them absconded. The deceased died from collapse of the heart and lung caused by the stabbing. The accused is charged with murder in conjunction with Section 7 and 8 of the Criminal Code.

3. A Medical report of Dr. Niure Badia dated 31^st January, 2013 confirmed the victim sustaining stab wound. The Post Mortem examination of the deceased reveals the following significant findings:

(a) Through and through stab wound to the upper chest near the midline when probed by finder. It had entered the heart and caused the heart to collapse.

(b) Posterior lower chest wound caused by knife which entered the left lower chest. This also caused the lung on the left to collapse.

Dr. Niure Badia concluded that the victim did not stand a chance as both lungs and the heart which is vital organs for survival were severely compromised.

4. On his statement on Allocatus, the accused said sorry for breaking the law and also said sorry to the relatives of the deceased. He said he is the eldest son in the family and has 3 brothers and 2 sisters. He said his 2 brothers have passed away and his 2 sisters are with his parents. He is married with a child but both his wife and the child have passed away. He said he was in the house when police arrived and belted him up and shot him on the leg and injured him. He said he surrendered but police shot him on the leg and as a result he is walking around and will walk around with aid of a walking stick for the rest of his life. The court confirmed his disability in the dock. He further asked the court to have mercy on him on Sentence. He said he will accept whatever punishment the court imposed on him.

5. Mr. Yavisa of Counsel for the accused submitted the accused is aged 30 years and is from Dimare village in Madang Province. He did his secondary education at Popendetta High School and completed grade 9 only. His parents are old and live in Popondetta town.

6. Mr. Yavisa submitted that in relation to the offence, the accused and his friends only plan to break enter and steal from Kamsi’s store. That was their only intention. Whilst in the premises the deceased woke up to use the toilet and it happened that he grabbed one of the co-accused who started calling out for help and one of the other co-accused helped by stabbing the deceased on the chest once and all of them escaped. And as such the plan to steal did not eventuate because the deceased disturbed them.

7. Mr. Yavisa urged the court to consider in accused’s favour the following matters:

1. That there was no planning to kill;
   
2. That accused pleaded guilty and saved courts time. actually the matter was originally listed as a trial matter but he elected to plead guilty and conveniently saved court’s time and money;
   
3. Accused is a first time offender;
   
4. That accused upon his arrest was shot by the police on his leg and have been permanently disabled;
   
5. That his co-accused have pleaded guilty to the same charge of Murder and sentenced to 15 years imprisonment. In accordance with disparity of sentence principle, it was submitted that the same sentence should be imposed CR No. 1070 OF 2014 Paul Masida (2016) N6246.
   

8. Mr. Yavisa referred the court to the often cited case of Manu Kovi v. The State (2005) SC 789 and submitted that the present case falls under the Second Category with the sentence between 13 to 16 years.

9. Mr. Yavisa further referred the court to the National Court case of The State v. Wakore (2007) N3223. In that case the accused pleaded guilty to the charge of Murder and was sentenced to 12 years. The accused in that case shot the deceased with a shot gun. It happened during a argument over a adultery incident.

10. For the prosecution Ms. Gore submitted that this was a merciless killing that took place in the deceased house. Ms. Gore submitted that a life has been lost and there was use of dangerous weapon in the form of a knife. She submitted that using of knifes or bush knifes and stabbing people to death is very prevalent and custodial sentences are called for to deter others. Ms. Gore submitted that a sentence between 12 to 16 years is appropriate.

11. The maximum penalty for this crime is life Imprisonment. The court has discretion to impose lower sentences with or without other forms of punishment enumerated in S.19 of the Criminal Code.

12. It is an established principle that the maximum penalty should be reserved for the worst type of murder case. Avia Aihi v. The State (No.3) [1982] PNGLR 92 and Goli Golu v. The State [1979] PNGLR 653.

13. It is also an established principle that each case should be considered on its own facts and circumstances, Lawrence Simbe v. The State [1994] PNGLR 38.

14. The accused is a young man aged 30 years old and married at the time of the offence. Both his wife and the only child passed away. He is a member of the Lutheran Church. He received grade 9 education only. He is a man of prior good character and has no prior conviction against him. He has pleaded guilty and has expressed remorse in court. He was wounded by police with a shotgun and has been permanently disabled. In determining the appropriate sentence, I take these factors into account in his favour.

15. Against the factors in his favour, I take into account the following aggravating factors as follows:

1. That there was some element of pre-planning;
   
2. That death occurred in the execution of another offence;
   
3. That the victim did not expect to be stabbed on a vulnerable part’s of his body namely the lung and the heart which resulted in his death;
   
4. There was use of dangerous weapon, namely a knife
   
5. That Murder is a prevalent offence;
   
6. That even though he did not use the knife to stab the deceased, he is deemed to be an active participant, by virtue of section 7 and 8 of the Criminal Code.
   

16. Weighing the factors for and against the accused, I note the aggravating factors outweigh those in his mitigation. Given the sacredness of human life, the prevalent of the offence and the use of knife on the vulnerable part of victim’s body which caused instant death, I accept that the case falls into the second category of Manu Kovi’s case guidelines.

17. The next issue to determine in the case is the disparity of sentence principle. It was said in Secretary for law v. Witrasep Binengim [1975] PNGLR 172 at 175. “The situation often arises where Mr. Justice A deals with one of a group of co-offenders one month and Mr. Justice B deals with the remainder subsequently. The second Judge might feel that the first Judge was lenient, but the principle is that the second Judge albeit rather unwilling (and absent distinguishing factors of aggravation) ought to award much the same sentence as awarded earlier”.

18. The evidence as I find revealed that there was a concerted action and a common intention and support and approval of a plan to break enter and steal on the part of the accused and the co-accused and as such it is difficult to distinguished his degree of responsibility from the co-accused.

19. However I have decided to apply the above principle in the present case as the accused is the second offender to the co-offender Paul Masiela who was sentenced to 15 years for the same offence of Murder CR No. 1070 OF 2014 Paul Masiela (2016) N6246.

20. Having applied the principle of disparity of Sentence and the total circumstances of the present case, I consider an immediate sentence of 14 years imprisonment appropriate. Accordingly I impose the sentence of 14 years. The sentence will be reduced by the time spent in custody on remand, to be confirmed by the Correctional Services, Biru and which will be reflected on the certificate of conviction.

Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused