State v Kandui [2016] PGNC 304; N6503 (27 October 2016)

N6503

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 743 OF 2013

THE STATE

V

JAMES KANDUI

Wabag: Auka, AJ

2016: 23^rd May & 27^th October

CRIMINAL LAW – Wilful Murder – Charge of – Trial – Finding of guilt to a lesser charge – Criminal code s. 300 and s.539
CRIMINAL LAW – Finding of guilty to a charge of Murder – Sentencing principles- Offender of Murder – Killing aggravated by application of offensive weapon – Term of years appropriate

Case Cited:
Manu Kovi v. The State (2005) SC 789
The State v. Tukil Waninara No. 3 (2007) N3280
Goli Golu v. The State [1979] PNGLR 653
Lawrence Simbe v. The State [1994] PNGLR 38
The State v. Laura (No. 2) [1988-89] PNGLR 98
The State v. Wilson Mari (2011) N4419
The State v. Abaya Ulas (2010) N4009
The State v. Relvie Joe (2005) N2832

Counsel:
Mr. Joe Waine, for the State

Mr. Robert Bellie, for the Accused

DECISION ON SENTENCE

25^th October, 2016
1. AUKA AJ: The accused pleaded not guilty to wilful murder contrary to s.299 of the Criminal Code Act. A trial was conducted. On 18^th May, 2016 I handed down my decision on which I found the accused guilty of an alternative charge of murder under s. 300 by virtue of s. 539 of the Criminal Code.

2. The accused was found guilty of Murder under s. 300 (1) (a) of the Criminal Code that he on 26^th day of March, 2013 at Laiagam murdered Peter Kumon.

3. Based on the evidence, I found that the accused stabbed the deceased on his left chest with a chisel. The deceased and the accused initially had a fist fight which was stopped by bystanders and everything was normal. After a while after fifteen minutes, the accused pulled out his chisel blue in colour from his bag and rushed at the victim and stabbed him on the left chest. The deceased sustained a stab wound on the left chest with deep penetration serving the great vessels which caused massive bleeding resulting to death soon after from loss of blood.

4. The Medical Report showed a 20 millimetres stabbed wound on left chest at 3^rd Intercostal space. The internal examination showed the chest Arch Aorta with 5 litres of blood in both pleural space and pericardium.

5. I found after review of the evidence that the accused stabbed the deceased after the deceased punched the accused to the ground and when accused got up he used his chisel and stabbed the deceased on his left chest.

6. I found that the stabbing of the deceased was a vicious attack with a lethal weapon and that he died as a result of the stab wound sustained during the attack. His cause of death as confirmed by the Medical Report was as a result of blood loss from the stabbed wound.

7. On his statement on Allocatus, the accused said quote “The court has found out that I’m guilty but I am not guilty. In May, 2014, Nineteen (19) remandees escaped and I remained. On 30^th December, 2014 thirty three (33) remandees escaped and I remained. On 16^th May, 2016 twenty two (22) remandees escaped from Wabag Police Cell and I remained. I ask the court to have mercy on me and give me good behaviour bond. This is my first time to appear before the court. Thats all and thank you”.

8. In relation to the accused’s personal particulars, Mr. Bellie submitted that the accused is 57 years old and comes from Imi Village in Wabag District of Enga Province. He is married with seven (7) grown up children. Both his father and mother are deceased. Have three brothers and two sisters. He is the third born in the family of five children. He is a committed Seventh Day Adventist church follower. He completed grade ten (10) educations in 1974. He is a carpenter by profession. At the time of the offence he was a carpenter employed by Niugini Builders. He committed the offence on 26^th March 2013. He was arrested and taken into custody on 30^th March 2013. He has been in custody for three (3) years one month 23 days.

9. Mr. Bellie submitted that the court should consider that the accused was initially indicted with wilful murder but the court found him guilty on the alternative charge of murder by virtue of s. 539 of the Criminal Code Act.

10. Mr. Bellie submitted that this case falls under category two of the often cited case of Manu Kovi v. The State (2005) SC 789 which attracts a term of sentence between 16 to 20 years.

11. He referred the court to the case of The State v. Tukal Waninara No. 3 (2007) N3280. In that case the accused was charged with wilful murder and pleaded not guilty but after trial he was found guilty of murder and a term of 18 years imprisonment was imposed minus the time spent in custody awaiting trial and sentence. He was ordered to serve the balance. In that case the accused used a bush knife and cut the deceased on his stomach and caused his death.

12. Mr. Bellie submitted and urged the court to consider the following factors in accused’s favour on sentence:

1. That the accused acted alone;
2. That there was a high degree of de-facto provocation;
3. That there was no pre-planning;
4. That accused has no prior conviction;
5. That accused is a person of prior good character;
6. That during his remand period he has shown that he is a law abiding person in that he refused to escape from lawful custody during the past four (4) mass break-outs from Baisu jail and Wabag Police Station call;
7. That he had spent three (3) years one (1) month and 23 days in custody awaiting trial and sentence.
   

13. For the prosecution, Mr. Waine submitted and urged the court to consider the following aggravating factors against the accused on sentence;

1. That a dangerous weapon was used;
2. That the accused stabbed the deceased on a vulnerable part of his body;
3. That there was some intention to harm;
4. That the killing was done in a public view;
5. That the attack was vicious;
6. That the offence of murder is a prevalent offence especially in Enga Province;
7. That the accused did not express any remorse to the victim or his family;
   

14. The maximum penalty for the crime of murder under s.300 of the Code is subject to s. 19 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.

15. It is an established principle that the maximum penalty should be reserved for the worst type of murder case, Goli Golu v. The State [1979] PNGLR 653. In reviewing of the facts and the circumstances surrounding the commission of this case, I am of the view that the accused’s case is not a worst type case.

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

17. The case before me is homicide and the life of the victim was taken away prematurely under unexpected circumstances as revealed in the evidence. The accused was on his way carrying his carpentry tools to do some private work at the hospital when suddenly was confronted by the deceased who was with some girls drinking alcohol. One of the girls greeted accused and asked where he was going and the accused responded appropriately. The deceased was not happy about that and sweared at the accused and punched him to the ground. After 20 minutes accused used his chiesel and stabbed the deceased on his left chest which resulted in death some minutes later.

18. The unlawful taking of another person’s life has always been serious and loss of life’s happen in many different situations and circumstances as in this present case. Whatever and however human life has been taken away the offender must be appropriately punished depending on whatever aggravations and mitigations that might be.

19. The trend of sentencing on murder cases depends entirely on the facts of each case. The case of The State v. Laura (No.2) [1988-89] PNGLR 98 initially set some basis for any considerations for appropriate sentences for the offence of murder. The prisoner in Laura’s case pleaded not guilty to a charge of murder under s. 300 (1) (a) of the Criminal Code and was found guilty after a trial. He was sentenced to a term of eight (8) years.

21. At some later time, the Supreme Court in the case of Lawrence Simbe v. The State (Supra) considered the guidelines in Laura’s case and applied them. In that case the appellant appealed against the sentence of fourteen (14) years following a plea of guilty to a charge of murder. In dismissing the appeal, the Supreme Court said that it should be a principle that each case must be decided on its own facts and circumstances always remembering that the penalty under s. 300 is life imprisonment.

22. Since the above cases, the National Court have gradually increased the sentences for the offence of Murder depending on the facts of each cases.

23. I refer to few similar cases which illustrate the current trend of sentencing in cases of Murder:

1. In the case of The State v. Relvie Joe (2005) N2832, the accused followed the victim and assaulted her with his hands before stabbing her once on her left shoulder with a kitchen knife. The massive bleeding that resulted from a penetrating knife wound to the heart led to the death of the deceased. Upon his plea of guilty to murder he was sentenced to 12 years reduced by 11 months for pre-trial custodial term. To serve the balance of 11 years 1 month imprisonment.
   
2. In the case of The State v. Abaya Ulas (2010) N4009, the accused a police officer was charged with wilful murder but after trial was convicted of murder and sentenced to 16 years imprisonment. In that case there was only one fatal stab wound, and a high degree of de-factor provocation.
   
3. In the case of The State v. Wilson Mari (2011) N4419, the offender was convicted after a trial of murder of a friend with whom he had been drinking alcohol, who was later seen drinking and socialising with the offender wife. The offender followed the deceased and the offender’s wife and stabbed the deceased three (3) times, killing him almost instantly. A sentence of 22 years imprisonment was imposed. The pre-sentence period in custody was deducted and he was ordered to serve the balance.
   
4. In the case of The State v. Alois Lagu (2011) N4354, the accused pleaded guilty to murdering a fellow villager by stabbing him with a pocket knife once in the chest, while the deceased was at a family gathering. There was no apparent motive. He was sentenced to 20 years imprisonment. The pre-trial custodial term was deducted and none of the sentence was suspended.
   

24. The accused is a middle age man aged 57 and is married at the time of the offence. He is a strong member of the Seventh Day Adventist church. He received grade 10 education and went onto carpentry training. He was a member of the team of carpenters that were building police houses at Laiagam Police Station when he under unexpected circumstances committed the offence. He is a man of prior good character and has no prior conviction against him. During his remand period he has shown that he is a law respecting and abiding citizen, in that he did not escape from lawful custody during the mass break-outs as mentioned in his statement on allocatus. He has spent 3 years 1 month 23 days in custody awaiting his trial and sentence. In determining the appropriate sentence, I take these factors into account in his favour.

25. Against the factors in his favour, I take into account the following aggravating factors;

1. That the life was lost pre-maturely, due to accused’s dangerous action;
2. That the accused used a dangerous weapon;
3. That the accused had some intention to harm the deceased;
4. That the accused stabbed the deceased on a vulnerable part of his body;
5. That the killing was done in a public view;
6. That the offence of Murder is a prevalent offence especially in Enga Province and
7. That the accused has not shown any remorse at all to the victim for taking away the life of his former workmate or to his family for that matter. This is reflected by the accused’s statement on allocatus. He still maintained that he is innocent after he had been found guilty on an alternative charge.
   

26. The attack by the accused on the victim in my view is a “ferocious” one in the circumstances I have mentioned and as a result a life was lost. I accept that the present case falls into the second category in Manu Kovis’s case (supra). The accused could be sentenced to a term between 16 to 20 years imprisonment.

27. Weighing all the factors for and against the accused, I note that the aggravating factors outweigh those in his mitigation. Given the sacredness of human life, the prevalence of the offence and the absence of expression of any remorse on the part of the accused to his late workmate and his family, I consider a sentence of 18 years imprisonment appropriate in the circumstances of the case.

28. Accordingly I impose a sentence of 18 years. The term spent in custody including the period spent after submission on sentence on the 23^rd May 2016 shall be deducted. He will serve the balance.

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