State v Pinapang [2017] PGNC 16; N6616 (3 February 2017)

N6616

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1751 OF 2016

THE STATE

V

MAILONG PINAPANG

Madang : Cannings J

2016:18 November, 9 December
2017: 3 February

CRIMINAL LAW – sentencing – murder – Criminal Code, Section 300(1) – guilty plea – offender killed his adopted mother, by a bushknife wound to the neck – victim offered no provocation and entirely innocent – vicious, surprise attack – sentence of 21 years imprisonment.

The offender, 20 years old at the time, had an argument with his adopted mother, in a bush location and used a bushknife to cut her on the neck. It was a severe wound and she died instantly. He pleaded guilty to murder. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for this sort of murder (special aggravating factors, mitigating factors reduced in weight or rendered insignificant by gravity of offence, vicious attack, strong desire to do grievous bodily harm, offensive weapon used) is 20 to 30 years imprisonment.

(2) Mitigating factors: the offender was the sole attacker, high level of cooperation with the Police, early admissions, pleaded guilty, very early guilty plea, he is a first-time offender, difficult family upbringing, he has expressed remorse.

(3) Aggravating factors: use of lethal weapon, brutal killing, killing of defenceless, harmless, entirely innocent person.

(4) The mitigating factors are not sufficiently strong to warrant a sentence below the starting point range. The sentence imposed was 21 years imprisonment, none of which was suspended.

Cases cited:

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v “GM” CR No 1048/2014, 24.06.15
The State v John Ururu (2015) N5980

SENTENCE

This was a judgment on sentence for murder.

Counsel:

F Popeu, for the State
J Morog, for the offender

03^rd February, 2017

1. CANNINGS J: This is the judgment on sentence for Mailong Pinapang who has been convicted of murder under Section 300(1)(a) of the Criminal Code. He pleaded guilty to the murder of his adopted mother,
   Pisek Pinapang. The offence was committed at a bush location known as Tagal, near the offender’s village, Ulun No 2, on Karkar Island, Madang Province, in daylight hours on 13 July 2016. The offender was aged 20 at the time. He went into the bush with his father to do garden work and after a while his mother arrived. His father left them, to climb a tree and collect mustard. The offender then had an argument with his mother. He became angry with her, and used a bushknife to cut her on the neck. It was a severe wound and she died instantly.
   

ANTECEDENTS

2. The offender has no prior convictions.
   

ALLOCUTUS

3. The offender was given the opportunity to address the Court on the question of sentence. He stated:
   

I apologise for what I have done. I say sorry to God and ask for the mercy of the Court.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). It is apparent that he made very early admissions to the Police after his arrest and that he has cooperated fully with the Police in their investigation. He maintains that he got frustrated with the deceased as she did not treat him well. As for the nature of the attack and the brutality involved, there is nothing in the depositions that mitigates the gravity of the crime.
   

PRE-SENTENCE REPORT

5. Personal details of Mailong Pinapang
   

Age : 20
Origin : Ulun No 2 village, Karkar Island
Upbringing : village
Marital status : unmarried

Family : his adoptive father is alive, but is believed to have gone into hiding after the death of his wife (the deceased)
Education : no formal education
Employment : no formal employment
Occupation : villager
Health : OK

6. The views of the community were obtained from a local leader, Jerry Kaurias, who states that the community is very much against the offender, who did not enjoy a good reputation and is widely believed to have been a user of illicit drugs. The community’s view is that the offender should be imprisoned for killing his adopted mother.
   
7. Despite the unfavourable pre-sentence report, prepared by the Madang branch of Community-Based Corrections, a recommendation is made that the offender is suitable for probation. The basis of this recommendation is the offender’s statement to the author of the report that the deceased engaged in ongoing harassment and showed little love towards him, so he became frustrated to the point that he killed her.
   
8. The offender did not make a statement to that effect in his allocutus and there is only a vague reference to his frustration with the deceased in his record of interview. Given the gravity of the crime, the recommendation for probation is unrealistic and unreasonable and it is rejected.
   
9. I point out that in addition to the pre-sentence report, a two-page document, headed “Further informative evidence for Mailong Pinapang”, was presented to the court, without objection. The report is signed by ward member, Tony Kalmak; peace officer, Biom Tatu; Village Court magistrate, Babuk Kalmak; adoptive father, Pinapang Siou; biological father, Tatu Gaun; and uncle, Jerry Kaurab. The views expressed in this document are similar to those expressed by Mr Kaurias in the pre-sentence report: that the offender, Mailong, had a drug problem, that he had been involved in cult activities and had become mentally unstable and that these factors must have led him to committing the offence. It is significant that the authors of this document express no desire to see the offender back in the community.
   

SUBMISSIONS BY DEFENCE COUNSEL

10. Mr Morog highlighted the very early guilty plea and asked the Court to regard this as a spontaneous offence, committed by the offender in the course of an argument, following a long period of frustration and his feeling that he did not have a loving family environment. The mitigating factors are strong enough to bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, and make the appropriate sentence 16 to 18 years imprisonment.
    

SUBMISSIONS BY THE STATE

11. Mr Popeu did not agree that this was a category 2 case according to the Kovi guidelines. This was a brutal killing involving a severe cutting of the victim’s neck and it falls within category 3 of the Kovi guidelines. There was no apparent reason for the attack, other than the vague claim that the offender had been a neglected child. A death in these circumstances warrants a sentence of 30 years imprisonment, Mr Popeu submitted.
    

DECISION MAKING PROCESS

12. To determine the appropriate penalty I will adopt the following decision making process:
    
    • step 1: what is the maximum penalty?
      • step 2: what is a proper starting point?
      • step 3: what sentences have been imposed for similar offences?
      • step 4: what should the head sentence be?
      • step 5: should the pre-sentence period in custody be deducted?
      • step 6: should any part of the sentence be suspended?
        

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. The maximum penalty for murder under Section 300(1) of the Criminal Code is life imprisonment. The offender was not convicted of the more serious offence of wilful murder. Hence the death penalty is not applicable.
    

STEP 2: WHAT IS A PROPER STARTING POINT?

14. I will apply the sentencing guidelines for murder from the leading Supreme Court case of Manu Kovi v The State (2005) SC789.
    

SENTENCING GUIDELINES FOR MURDER: KOVI’S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, 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 offences.	Premeditated 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

15. I reject Mr Morog’s submission that this case falls within category 2. Though it can be regarded as a spontaneous incident, there is little evidence that the victim offered any substantial provocation. She was harmless and innocent. This is a category 3 case. There are special aggravating factors and the mitigating factors are rendered insignificant by the gravity of offence. It was a vicious attack, exhibiting a strong desire to do grievous bodily harm, and an offensive weapon was used. The starting point is 20 to 30 years imprisonment.
    

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

16. Two recent Madang cases are useful precedents. In The State v John Ururu (2015) N5980 the 19-year-old male offender pleaded guilty to the murder of his 13-year-old step-sister. The deceased had with other young village girls been rehearsing for a graduation ceremony at a local school. The offender waited under a tree for the deceased to finish the rehearsal. He was armed with a short bushknife. As the deceased started to walk home, he approached her without warning, grabbed her by the hair and used the bushknife to cut her on the back of her neck, almost severing the head. She died instantly. A post-mortem report revealed that the deceased died due to hypovolaemic shock as a result of a severed right carotid and jugular vein. The circumstances of the offence were horrific and deeply disturbing. It was dealt with as a category 3 case under the Kovi guidelines. The sentence was at the top of the starting point range: 30 years imprisonment, with no suspension.
    
17. In The State v “GM” CR No 1048/2014, 24.06.15 the 16-year-old male offender pleaded guilty to the murder of a fellow villager, a 15-year-old girl. He had an argument with her in a garden, and used a bushknife to cut her on the head and neck. She died instantly. It was dealt with as a category 3 case under the Kovi guidelines. The mitigating factors were: no prior convictions, de facto provocation; juvenile offender, difficult family upbringing, the guilty plea and the expression of genuine remorse. The sentence was 21 years imprisonment, with no suspension.
    

STEP 4: WHAT IS THE HEAD SENTENCE?

18. To determine the head sentence I will focus on the starting point range of 20 to 30 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be at the bottom of or below the starting point range. The more aggravating factors present, the more likely the head sentence will be at the top of or above the starting point range. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.
    
19. Mitigating factors are:
    
    • the offender was the sole attacker;
    • high level of cooperation with the Police;
    • early admissions;
    • pleaded guilty;
    • very early guilty plea;
    • he is a first-time offender;
    • difficult family upbringing;
    • he has expressed remorse.
      
20. Aggravating factors:
    
    • use of lethal weapon;
    • brutal killing;
    • killing of defenceless, harmless, innocent person.
      
21. The mitigating factors are not sufficiently strong to warrant a sentence below the starting point range. The sentence of 18 years imprisonment suggested by Mr Morog would not reflect the gravity of the crime. The sentence of 30 years suggested by Mr Popeu would be too great and not reflect the stronger mitigating factors applicable in this case compared to a case such as Ururu. I consider that the present case should be dealt with in the same way as “GM”. The sentence is 21 years imprisonment.
    

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

22. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is six months, three weeks.
    

STEP 6: SHOULD ANY PART OF THE HEAD SENTENCE BE SUSPENDED?

23. No. I reject the recommendation of probation in the pre-sentence report. There is no evidence that the offender has the support of anyone in his community, of the sort that would warrant a suspension of any part of the sentence. This is a case in which to suspend any part of the sentence would not reflect the sanctity of human life. There is no suspension.
    

SENTENCE

24. Mailong Pinapang, having been convicted of one count of murder under Section 300(1)(a) of the Criminal Code, is sentenced as follows:
    

Length of sentence imposed	21 years
Pre-sentence period in custody to be deducted	6 months, 3 weeks
Resultant length of sentence to be served	20 years, 5 months, 1 week
Amount of sentence suspended	Nil
Time to be served in custody	20 years, 5 months, 1 week
Place of custody	Beon Correctional Institution

Sentenced accordingly,
____________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the offender