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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 1096 of 2016
THE STATE
V
KEVIN KOLE
Bali/Vitu: Batari J
2017: 8, 14 August
CRIMINAL LAW- Sentence Murder- Accused stabbed decease with kitchen knife during church service-strong intent to cause grievously bodily harm-unlawful killing- prevalence of-payback-Plea-Factors in mitigation considered- 18 years prison
PNG Cases Cited
Avia Aihi –v- The State (No.3) [1982] PNGLR 92,
John Elipa Kalabus v The State [1988] PNGLR 195
John Kapil Tapi v. The State (2000) SC 635
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC 789
Simon Kama v The State (2004) SC 740
State v. Aiaka Karavea & Anor (1983) No. N452 (M)
The State v Laura (No.2) [1988-89] PNGLR 98.
The State v Urari Siviri (2004) N2747
Counsel
DECISION ON SENTENCE
14th August, 2017
1. BATARI, J: The Prisoner, Kevin Kole has pleaded guilty to the unlawful killing of, Fabien Tangogola. His offence comes under s. 300 (1) (a) of the Criminal Code. The maximum penalty for murder is life imprisonment. He is presented before the Court again today to receive his sentence.
Background
2. The common facts which support the sentence reasoning are briefly, that in 2010, the National Court acquitted the deceased on the charge of murder. He was alleged to have killed the brother of the accused. At or shortly before the incident of 9/4/2016 Kevin heard Fabien was back at their Kuravu village in Vitu Island, WNB Province. He armed himself with a kitchen knife and accosted Fabien where he was attending Seventh Day Adventist (SDA) Church afternoon service in the village. He walked up behind the deceased and stabbed him on the back with the kitchen knife and fled the scene. Fabien died soon after. Kevin was arrested a week later on 15/4/2016.
3. The medical report by a Dr James Apamumu stated that the knife pierced the left lung through to the left lower lobe. Cause of death was hypovolaemic shock and massive loss of blood.
The Law
4. The prescribed life imprisonment under s. 300 (1) (a) of the Criminal Code is not mandatory because s.19 gives the Court discretion to impose a term of years.
5. The exercise of judicial discretion must be guided first and foremost, by the need to protect the community from crimes of violence (and prevalence thereof) and from those with propensity towards violence as they may re-offend. The sentence imposed must be designed to meet both the specific and general deterrence aspects of sentencing. The sentence must be intended personally punish the offender and at the same time, inform the community that such needless violent antisocial behaviour will incur punishment. On the other hand, the interest of the community must be balanced with extenuating circumstances (if any) and personal interests present in subjective matters in favour of the offender.
6. The Court takes into account the facts surrounding the offence i.e., those factors for and against the offender both apparent and latent on the face of the records, his/her personal circumstances and whether the conviction followed a trial or a plea. I will deal first with mitigating factors then those factors against the offender and end with a penalty warranted on the facts.
7. Mr. Tunuma of counsel for the prisoner in his submissions pointed to a number of factors in his client’s favour. The prisoner also referred to personal matters which he said would lead to disadvantages and difficulties if he were sent to prison. I will refer to some of those matters in so far as they are relevant and important factors in mitigation.
8. Police arrested and detained Kevin Kole on 15/4/2016. His pre-trial custody period I will take into account in calculating his sentence is 1 year, 3 months. Deduction of time in custody is discretionary. The prisoner’s pre-trial custody period is substantial. I will deduct the time in custody from the head sentence.
9. Kevin readily confessed the killing to the police following his voluntary surrender. His conduct and admissions of involvement have saved the police and State time and expenses to investigate and prosecute his case. The prisoner’s voluntary surrender, his co-operation with police, bespeaks of personal acceptance of guilt and responsibility for his conduct. This supports remorse and contrition.
10. It is trite law, a plea of guilty will attract leniency. This will usually be reflected in the final outcome of the sentence imposed. However the value of the guilty plea generally depends on the serious nature of the offence and whether other mitigating factors like good background, restitution, old age, young age, etc., remorse and contrition are present. For instance in regard to serious crimes of violence, Kidu CJ suggested in John Elipa Kalabus v The State [1988] PNGLR 195 at p;
“When a case is a serious one such as wilful murder, murder, violent rape or violent armed robbery, a plea of guilty by itself deserve no credit”
11. In my view, the weight to be given may also depend on how soon a plea is taken. In this case, the prisoner has pleaded guilty at the earliest opportuntiy. That should carry more weight.
12. In his allocutus, the prisoner said he is sorry. It is pertinent that he did that personally in open Court to be consistent with his conduct following the commission of the offence. He voluntarily surrendered and freely admitted involvement to the police. Some form of compensation was also paid and he pleaded guilty. This makes his expression of remorse genuine.
d) Compensation
13. A report ordered from Probation Officer, Mrs Passingan reveals that immediately after the incident, the prisoner and his relatives paid bel kol moni of K500.00 to the widow. His family also paid K4, 600.00 in cash and kind. The SDA Church on a separate occasion paid K2, 800.00. The effect of all these as compensation in a punitive sense is not conclusive. However the SDA church’s contribution implied acceptance of responsibility and resolve to maintain community trust and confidence. Likewise, the family had responded promptly to appease peace and harmony.
14. Both sides have spoken of further reconciliation compensation. That is a matter they can work out themselves. I do not see any good reason to make any orders to that effect. Too, in crimes of violence like unlawful killings, aggravated sexual offences and armed robbery, payment of compensation should not be taken as a way of avoiding criminal sanction.
15. In his allocutus, the prisoner spoke of retaliatory action by family members of the deceased resulting in substantial losses of properties. Relatives of the deceased set his home on fire, destroyed his gardens, damaged other personal properties and repossessed his dinghy with its outboard motor. He pleaded that the court orders the return of the dinghy and outboard motor.
16. I will not make any order that may equate with a civil remedy outside the ambit of the Criminal (Compensation) Act provisions. The prisoner has recourse to civil remedy against relatives of the deceased. However, I will take into account and allow for the personal harm and loss of properties the prisoner suffered. This is permissible as a mitigating factor under the head of difficulties the offender suffered following commission of the offence. I also take this course to avoid any misapprehension of double punishment.
d) Personal Circumstances
17. The prisoner’s personal background is set out in the Police Antecedent Report. It will be read into the records. He is aged 32 years, married with two children, with the third on the way. He completed grade 8, follows the SDA faith, lived in a one bedroom house, has three coconut blocks, operated a 23 foot dinghy powered by 40 horse out board motor. This is his first offence.
e) Motive
18. The killing was motivated by payback. Fabien had earlier killed Kevin’s brother over a land dispute. At his trial in 2010, Fabien successfully raised self-defence. I think he had then exiled himself from the island village following the National Court decision until at or shortly before his unexpected tragic demise. Kevin had spotted Fabien in church by chance and he attacked him.
19. The prisoner had clearly reacted upon impulse from a situation that had suddenly presented itself; that the attack was unplanned; that it was single knife wound; that it was against an old nemesis with some elements of provocation falling short of the legal defence. Kevin told the police the killing would not have occurred had Fabien been convicted and sentenced for killing his brother. He clearly harboured deep resentment and bitterness over the sudden loss of his brother. He possibly did not fully appreciate the workings of the legal process which resulted in the acquittal of a “killer”. On those facts the serious culpability of the crime is lessened, albeit, the conduct is inexcusable.
20. The prisoner killed his enemy in the most disturbing circumstances. Fabien was inside God’s temple, preoccupied in service and worship when the prisoner and attacked and killed him where he sat between a pastor and another worshipper near the front pews. He stabbed the victim from the back without warning and in the presence of many SDA devotees. This was a direct attack against God and Christian principles. In The State v Urari Siviri (2004) N2747 where a suspected sorcerer was killed in the church grounds and within the precincts of the pastor’s house, I made these observations which I adopt –
“The killing on church premises is a very serious matter for two basic reasons. First, it is generally accepted that, church grounds are sanctified holy and sacred places for worship, must be treated with respect and held in reverence for that purpose. It is in my view, sacrilegious to use church facility for unholy events as in this case, let alone breaking God’s first Commandment, ‘Thou shalt not kill’.
Second, ....... it is generally accepted that, church grounds and God’s servants would provide safe havens for the faithful and unfaithful alike. ...... if a person cannot be safe in church grounds or in the hands of the clergy, then where else can they seek protection and just treatment?”
21. Some correlation can also be drawn from killings in the presence of the court as in the case of Avia Aihi –v- The State (No.3) [1982] PNGLR 92 where the Supreme Court stated, those persons who are in the custody of the court should feel safe. Where a person in the custody of the police was killed, Kidu CJ stated in, State v. Aiaka Karavea & Anor. (1983) No. N452(M):
“When people who are accused of crimes seek the protection and custody of the police, it is one place where they should feel safe and be confident that they will have a proper trial in the courts of law”.
22. I would extend that proposition to Church sanctuary. People who are present or participating in lawful activities within church premises or mission grounds are entitled to feel safe and confident that no intrusive harm will befall them and that they will have a proper trial in the courts of law if accused of any wrong doing. Besides, it is the constitutional right of every man, woman and child to walk freely and to feel safe from any form of harm wherever they may lawfully be. They are entitled to freedom and safety anywhere including use of church and government facilities.
23. In this case, the public execution of the deceased was done in deliberate contempt of the established system. The prisoner took the law into his own hands. He became the accuser, the police, the court and the executioner, oblivious to the presence of the clergy and worshippers. His sacrilegious and defiant act against God is most appalling and deplorable. He also acted in direct contempt of the Constitution and the laws of this country. The wheels of justice had turned and his brother’s killer was acquitted by operation of law. The prisoner however decided to dish out his own style of justice against his brother’s killer. He professed to be a member of the SDA faith but his conduct clearly showed he did not believe in God and in God’s first commandment, “Thou shall not kill”. He will now meet with severe punishment.
(b) Use of Weapon
24. It is trite law that unlawful killing with the use of a weapon aggravates the offence. The use of such dangerous weapons as a knife, axe, spear, bow & arrow, stones, timber etc. and nature of the injury caused may indicate a strong intention to cause grievous bodily harm. Hence, this would call for a higher sentence: John Kapil Tapi v. The State (2000) SC 635; Simon Kama -v- The State (2004) SC740; Manu Kovi v The State (2005) SC789.
25. When the prisoner armed himself with a kitchen knife, the clear inference is at least, to threaten violence and at the most, to cause grievous bodily harm. His ruthless and cowardly attack on an unarmed victim during a church service showed a very strong desire to cause grievous bodily harm. He displayed the highest degree of actual violence and complete disregard for life. Yet the victim had the right just as everyone else in this country to live his God-given life to the fullest.
(c) Nature of injury
26. The prisoner stabbed the victim only once but aimed at the most vital part of the body. The resultant injury suggested a forceful and determined attack with the murder weapon. Any direct blow to a vital part of the body is always a very serious matter and in some cases will support an intention kill. In this case, it supported strong intention to cause grievous bodily harm.
(d) Prevalence of Offence
27. There is no issue that murder killings have been one of the most common offences of violence in this country. West New Britain Province has its fair share of murder killings that is increasing than decreasing in frequency. The frequency of such killings just about anywhere in urban or rural areas suggests that mission and government influences have had little impact on attitudes and mindset of individuals. People must surely know that it is unlawful as well as morally wrong to kill and that the penalty can be severe.
28. The penal servitude of life imprisonment underpins the gravity of unlawful killings, the community abhorrence and repulsion against it because of the sudden loss of life sometimes in the most shocking circumstances. Those who commit murder will expect to meet with severe punishment as a measure of achieving both the retributive and deterrent aspects of sentencing.
29. Anyone who unlawfully kills shows that he or she has an attitude or propensity towards violence. No society can tolerate such potentially violent persons living freely amongst its people. The law and good sense demands that if any person shows inclination towards violence, he or she must be removed from the society. Therefore, no amount of personal considerations or sympathy can save the prisoner from the legislative intention of Parliament that anyone who is responsible for a death must be punished with imprisonment. The court is empowered to apply the law to protect the society by punishing the murderer.
30. I consider that the prisoner has propensity towards violence and may re-offend. The sentence I impose should be sufficient to drive home to him at personal level, the serious consequences of his extreme conduct. I consider also that the general deterrence aspect of sentencing is relevant to warn others who are like-minded that they will meet with the same consequences.
What is the appropriate Sentence in all the circumstances then?
31. This case does not fall into the worst case of murder. I have considered the sentencing pattern of the Courts in recent years. Previously, the tendency was to impose sentences upward or downward from a mid range of 8 years in murder cases: The State v Laura (No.2) [1988-89] PNGLR 98. Sentences have increased since the case of Lawrence Simbe v The State [1994] PNGLR 38 where a term of 14 years on a plea of guilty to murder was confirmed by the Supreme Court.
32. In Simon Kama v The State (2004) SC 740 the Supreme Court attempted some guideline for murder sentences. This was followed shortly after by the case of Manu Kovi v The State (2005) SC 789. Although different sentencing ranges for murder were suggested, both cases are consistent in suggesting increased sentence for unlawful killings. They also consistently suggest that the range for murder killings must be higher than manslaughter but lower than the range for wilful murder.
33. I have referred to those principles. I agree with Mr Bray for the State that the prisoner’s case falls into the 16-20 years category. Allowing for those factors in his favour, his plea of guilty and the extent of his culpability, Kevin Kole is sentenced to 18 years imprisonment IHL.
34. The period of 1 year 3 months and 2 weeks spent in pre-trial custody is deducted from the head-sentence. I do not consider it appropriate to make any suspension orders on the head sentence. The effective term to serve is therefore, 16 years, 8 months 2 weeks.
_____________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused
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