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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 972 OF 2017
CR. No. 973 OF 2017
CR. No. 975 OF 2017
THE STATE
V
SILINGO ABITENA, MEIRE TOGOMU & AIPI PAUL
Lae: Numapo AJ
2018: 23 March, 19 & 23 April.
CRIMINAL LAW – Particular offence – Murder – Guilty Plea – Sentencing Principles - Degree of participation in the commission of the crime - Sentencing guidelines on murder cases (Re: Manu Kovi) Appropriate Sentence - Sentencing Discretion – Aggravating & Mitigating factors – Extenuating circumstances – Sections 300 & 19 of Criminal Code.
Held:
(i) The appropriate sentence for vicious mob attack using offensive weapon with a strong desire to do grievous bodily harm (GBH) is between 20 to 30 years imprisonment – (Re: Manu Kovi).
(ii) Sentencing guidelines merely serve as a guide and does not take away the sentencing discretion.
(iii) Sentence imposed by the Court must reflect the purposes of sentencing such as deterrence, rehabilitation, restitution and retribution.
(iv) Where more than one person is involved, sentence imposed on each should reflect their degree of participation and levels of criminal culpability.
(v) Factors such as the gravity of the offence, extenuating circumstances, aggravating and mitigating factors, and other factual circumstances peculiar to the case including prevalence of the particular offence are taken into account in deciding both the appropriate sentence and the head sentence.
(vi) Prisoners sentenced to terms of imprisonment ranging from 12 to 20 years. Pre-trial custody of 7 months deducted. No suspended sentence.
Cases Cited:
Anna Max Maringi v The State (2002) SC 702
Goli Golu v The State [1979] PNGLR 653
Kumbamong v The State [2008] PGSC 51; SC1017
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 Marai [2017] PGNC 67; N6693
The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501
The State v Bake (2012) N4890
The State v Christine Omui Cr. No. 384 of 2007
The State v Iori Veraga (2005) N2921
The State v Ilagi Ila (2017) N7262
The State v Jackson (2006) N3237
The State v Michael Gend Cr, No. 760/2011
The State v Matai (2011) N4256
The State v Ngase Saomi, CR. No: 793/15
The State v Yapson Spoky, CR No. 436 of 2012
Ume v The State (2006) SC 836
Counsel:
J. Done, for the State
S. Katurowe, for the Defence
SENTENCE
23rd April, 2018
1. NUMAPO AJ: This is a sentence on murder. The accused Silingo Abitena and his two co-accuseds Meire Togomu and Aipi Paul each pleaded guilty to one count of Murder under Section 300 (1) (a) of the Criminal Code and were convicted accordingly. The facts to which the prisoners pleaded guilty to are that; On the 22nd of July 2016 between 5:00 and 6:00am the prisoners and their accomplices were at Omatoro, Waria LLG, Garaina, Morobe Province. The deceased Petoro Paul and two others had also camped at the said place and asleep in a small bush hut. Whilst they were asleep the prisoners and others crept up, surrounded them and set upon the deceased and chopped him with the bush knives and an axe they had in their possession. The deceased sustained serious injuries to his body and died as a result.
2. It is often difficult to state with certainty the type of sentence that fits the crime. There is no mathematical formula in sentencing. Every case is determined by its own peculiar facts and circumstances being the aggravating and mitigating factors, the extenuating circumstances and the gravity of the offence itself. The prevalence of the particular offence is also a consideration that is taken into account. All these have to be properly weighed up and balanced out in deciding the appropriate sentence. See: The State v Iori Veraga (2005) N2921. Maximum penalties are prescribed for each of the offences under the Criminal Code to assist the court in deciding the appropriate sentence between the lower and the upper end of the sentencing scale. It is trite law however, that the maximum penalty is reserved for the worst type case. See Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No 3) [1982] PNGLR 92.
3. The common law principles on sentencing provides a useful guide on sentencing particularly, that the sentence imposed is aimed at achieving a specific outcome, purpose or objective such as deterrence, rehabilitation, restitution and retribution. The sentence must reflect a purpose. The courts have, over the years, being guided by these principles in imposing sentences that are aimed at achieving those outcomes. These principles are well adopted in this jurisdiction. See: The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501.
4. In the present case, the State submitted that the Court should impose a sentence that reflect on the severity and gravity of the attack that resulted in a loss of life. The attack was pre-planned and offensive weapons namely, bush knives and axe were used in committing the crime. It was a vicious mob attack with a strong intent to do grievous bodily harm. The State submitted that a prison sentence of between 20 – 30 years is appropriate and should be imposed and urged the court to apply the sentencing tariffs on Murder set out in Manu Kovi v The State (2005) SC 789 as follows:
(a) Category 1: In plea case where there are mitigating factors with no aggravating factors i.e., no weapons used, minimum force used, little or no planning and the absence of string intent to do GBH: 12 – 15 years imprisonment.
(b) Category 2: In a trial or plea where there are mitigating factors as well as aggravating factors, i.e., weapon used, some element of viciousness, some pre-planning and no strong intent to do GBH: 16 – 20 years imprisonment.
(c) Category 3: In a trial or plea where there is special aggravating factors and the mitigating factors are reduced in weight or rendered insignificant by gravity of offence, i.e., dangerous or offensive weapon used e.g., gun or axe, vicious attack, pre-planned attack, strong desire to do GBH and other offences of violence committed: 20 – 30 years imprisonment.
(d) Category 4: Worst case in a trial or plea where there is special aggravating features, no extenuating circumstances, and no mitigating factors or rendered insignificant by gravity of the offence i.e., pre-meditated attack, brutal killing in cold blood, killing innocent or harmless person, killing in the course committing another serious offence and complete disregard of a human life: Life Sentence.
5. The State further submitted that this case falls under category 3 of the Manu Kovi guidelines and urged the court to impose the appropriate sentence prescribed under that category.
6. I should add that the Manu Kovi guidelines were developed as a result of an earlier decision of the Supreme Court in Anna Max Maringi v The State (2002) SC702 following concerns that manslaughter sentences have surpassed the tariff on murder sentence hence the need to review and set new tariffs on murder sentences to render consistency with manslaughter sentences. The Court called for a review in the following terms:
“.....whilst it is clear to us that sentences for manslaughter have increased significantly over the years, the same cannot be said of murder sentences. It seems to us that manslaughter sentences have surpassed the tariff for murder cases set out in the often quoted decision of The State v Laura (No.2) [1988-89] PNGLR 319 and other cases such as Lawrence Simbe v The State [1994] PNGLR 402. Therefore, there is a need now for the Supreme Court to develop new tariffs for murder sentences to render consistency with manslaughter sentences. As this case is concerned with manslaughter, we leave that task for the Supreme Court on another occasion, in an appropriate case.”
7. Defence on the other hand, submitted that although s. 300 of the Criminal Code prescribed the maximum sentence of life imprisonment for murder, this is subject to s.19 (Criminal Code) that gives the Court a wider sentencing discretion to impose a lesser sentence. It urged the Court to consider imposing a lesser sentence in the exercise of its discretion as the offence does not fall under a category of worst case. Section 19 however, does not prescribe the range of lesser sentences to be imposed and left it to the discretion of the court.
Section 300:
(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-
(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;
Penalty: Subject to section 19, imprisonment for life.
8. Defence submitted that the present case falls midway between categories 1 and 2 of the Manu Kovi guidelines and therefore the starting point is between 13-15 years imprisonment. Counsel pointed out that the court is not bound by the sentencing tariffs set out under category 3 as proposed by the State as it has a wider sentencing discretion to consider a lesser sentence below the recommended tariffs. It referred to the case of Kumbamong v The State [2008] PGSC 51; SC1017 where the Supreme Court held that the setting of sentencing range was an illegal restriction on a trial judge’s discretion. I made some observations regarding sentencing guidelines and sentencing discretion in the recent case of The State v Ilagi Ila (2017) N7262 (15th May 2018). The view I expressed in that case was that: “Whilst I agree that sentencing discretion should be left to the trial judge alone, I also accept that sentencing guidelines are necessary to ensure that there is some degree of uniformity, parity and consistency in sentencing for like cases”.
9. I am of the view that sentencing guidelines or tariffs merely provide as a guide and does not in any way, take away or interfere with the sentencing discretion of the sentencing authority. It is up to the trial judge to decide whether to apply the sentencing tariffs or not. The substantive legal basis for sentencing discretion is provided under section 19 of the Criminal Code. This gives the sentencing authority the ultimate discretion on sentencing. It is an extension of a broader judicial discretion that judges exercise exclusively in the discharge of their judicial functions.
10. A number of case laws were cited by both the State and the Defence in their respective submissions on sentence to show the current sentencing trend on murder and submitted that the court be guided by them. I find these cases very useful and referred to them below:
11. The circumstances of the case is somewhat similar to the present case. In this case, the prisoner, a juvenile went out with
his friends. They were armed with bush knives and a homemade shotgun. They followed a bush track and met the deceased and his friends.
The deceased had some money. They set on the deceased and his friends and attacked them. The deceased suffered knife wounds to his
hands and legs and was shot at the back. He died from the injuries sustained.
Upon a guilty plea, the prisoner was sentenced to 20 years.
12. The offender pleaded guilty to one count of murder. He cut the deceased on his head and thigh after the deceased raped his niece. The background of the case is that the deceased has a history of insulting the Prisoner’s family. On the first occasion, he attempted to rape the Prisoner’s niece and she ran away naked. Despite the village court order for him to pay compensation he again assaulted the victim while she was alone and raped her. When she refused, he stabbed her with a knife. She ran away bleeding. Upon seeing that, the offender took his axe and chased the deceased. When he finally caught up with him, there was a struggle between them. The offender overpowered the deceased and cut him on the back of his head with the axe and further cut him on the thigh.
13. The offender paid compensation before his arrest and committed to the National Court. The court imposed 18 years less the pre-sentence custody period.
14. The offender pleaded guilty to one count of Murder of his brother-in-law. The facts are that the offender inflicted serious injuries on the deceased on his neck, head and other parts of the body. The offender submitted there was de facto provocation, in that the deceased who was married to the offender’s sister did not take responsibility to look after her and their children. On many occasions, the deceased’s wife would go to the offender to assist her in looking after the children. Further the deceased had extra-marital affair and got a woman pregnant with his child. On the day of the incident, the offender went to his coconut garden and found the deceased and his children picking coconuts. When he confronted the deceased, he took out his knife and wanted to fight with the offender. The offender then attacked him and inflicted serious injuries to his body which resulted in his death. The court accepted that in mitigation as the offender had the benefit of doubt.
15. The court held that the case came under Category (3) of the Manu Kovi guidelines, attracting a sentence between 20-30 years. After considering all the relevant factors, the court imposed the head sentence of 22 years. The court deducted the pre-sentence custody period of 1 year and 11 months leaving the balance of 20 years and 1 month. None of the sentence was suspended.
16. The offender pleaded guilty to murder of a deceased whom he suspected of killing his father through sorcery. On the day of the incident, the offender and his friend armed themselves with long bush knives and went to the deceased’s house. It was very early in the morning and they were still asleep. When they finally woke up, the offender and his friend came out of their hiding place and attacked the deceased who was holding his grandchild. The offender inflicted two knife wounds to the deceased’s neck. He fell down motionless and they escaped. The court imposed 24 years with none of the sentence being suspended.
17. The prisoner stabbed the deceased with a knife following an argument. The deceased was pregnant when she was stabbed. There was a de facto provocation in that the deceased mocked the prisoner that she was old and cannot find a husband.
18. The prisoner pleaded guilty and sentenced to 16 years imprisonment.
19. The prisoner pleaded guilty to murder under section 300 (1) (a) of the Criminal Code and was sentenced to 25 years less pre-trial period of 3 years and 2 months leaving the balance of 21 years and 9 months to serve in prison.
20. The offender and his wife were having an argument that started at the market place. The offender was armed with a knife and stabbed his wife at her back and around the genital and abdomen area. They reached their house and the deceased fell to the ground and died due to loss of blood from injuries she sustained. She received multiple injuries to her body. She was taken to the hospital and but was pronounced dead on arrival. She was 4 months pregnant at the time.
21. The aggravating factors, the extenuating circumstances and the mitigating factors are taken into account in deciding what should be the appropriate sentence but as to how much weight is given to those factors is in the discretion of the court.
22. The degree of and the extent of each of the prisoner’s participation in the commission of the offence are also taken into account to determine their levels of criminal culpability. The lesser role they play the lesser sentence they get. The Supreme Court in Ume v The State (2006) SC 836 described the aggravating factors, extenuating circumstances and mitigating factors in the following terms:
“The consideration of aggravating factors is of course not new. They include pre-planning, degree of pre-mediation, weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after the killing, and so on.
As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself; factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances includes de-facto provocation, duress or coercion, the degree of and extent of the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did.
As for mitigating factors, relevant factors to be considered include the offender’s youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first time offender, guilty plea; early confession to police; remorse; co-operation with police; poor health and restitution or compensation.”
(I) Silingo Abitena
23. The prisoner is a biological brother of the late Jose Abitena who was stabbed by the deceased’s brother, Sio Paul during a soccer match a few months earlier. After seeing his brother died a painful death from the injuries he sustained from the stab wounds, the prisoner decided to take revenge on Sio Paul. He went looking for Sio Paul but could not find him and turned on his brother Petoro Paul (deceased) instead. Prisoner Silingo Abitena was the main instigator. He planned everything and was determined to take revenge for his brother’s death as a payback. He does not show any remorse towards the family of the victim but was very apologetic to the court for his actions.
24. In allocutus the prisoner said:
“Your Honour, I apologize to God and to the Court for what happened. The incident started from a soccer match. My team was taking the field when we were told that it was not our time to play because the match officials mixed up the draws so my small brother Jose Abitena was upset and cut down the goal post because he was the one who erected the goal post. Sio Paul got a grass knife and charged towards my brother and stabbed him in the stomach and the intestines came out. Sio Paul is the elder brother of Petoro Paul (deceased). My brother Jose was seriously injured so my father took him to Angau hospital in Lae. When he got discharged he was not able to do any work because of his injuries. He was very weak. We were helping him out in a lot of things. My brother Jose later died from his injuries. He died a painful death. During the attack Petoro defended his brother Sio Paul who stabbed my brother Jose. I was looking for Sio Paul but he wasn’t around so I cut Petoro instead. I chopped him once. The whole thing happened because Sio Paul started it. That is all”.
(II) Meire Togomu
25. The prisoner was the first person to cut the deceased on his arm using an axe. Although, he was apologetic he did not regret anything and does not show any remorse. He is 16 years of age and is considered a juvenile.
26. This is what he said in his allocutus:
“I say sorry to the judge, lawyers and policemen. We were playing soccer at the time the incident happened. The goal post was erected by Jose Abitena (deceased). The match officials told us to go and play and whilst we were getting ready to run on to the field they called on another team to go and play. Jose got angry and went and cut down the goal post. Sio Paul went and stabbed Jose Abitena in the stomach with a grass knife and the intestines came out. We wanted to retaliate at the time but Petoro Paul came and defended his brother with a bush knife. Jose’s father took him to Angau hospital in Lae and after a few months Jose got discharged and returned back to the village. He was in the village for almost five months but his wounds became sore again and eventually he died.
After Jose died we went to Omatoro to look for Sio Paul but he was not there. Only his brother Petoro was there and was armed with a bush knife and wanted to attack us when he saw us. I cut him once on his arm with an axe. That is all.”
(III) Aipi Paul
27. This prisoner accompanied the two other prisoners but did not participate in attacking the deceased and told the court in his allocutus that:
“I went with Silingo Abitena and Meire Togomu to look for Sio Paul but he was not there. When we arrived at the small hut at Omatoro I stayed outside with others and did not see what went on inside the hut. I was not armed and did not take part in attacking the deceased.”
28. In the Pre-Sentence Report the prisoners stated that they were members of a new breakaway faction of the Lutheran Church called the New Life Ministries and are faithful Church-goers and actively participate in all the Church activities. They are ordinary villagers and do not have any form of employment. They try to grow coffee and cocoa to sell to earn some money to support their families. Sometimes they try to pan for gold but it is hard work. Silingo Abitena and Aipi Paul are married with three children each whilst Meire Togomu is single and does not have a family. They accept full responsibility for their actions and apologized for what they did. None of the prisoners were recommended as suitable for probation and it was left to the court to decide the appropriate sentences.
29. As stated above, every case is to be determined by its own peculiar facts and circumstances being the aggravating circumstances, the extenuating circumstances, the gravity of the offence and the mitigating factors in deciding what should be the appropriate head sentence.
30. In the present case, I consider the aggravating factors to be as follows:
(i) This was a mob attack on an unsuspecting victim who was unarmed and asleep at the time of the attack.
(ii) The attack was vicious with a strong intent to cause grievous bodily harm (GBH).
(iii) The attack was pre-planned.
(iv) It was a payback killing.
(v) The deceased was chopped up on various parts of his body.
(vi) Offensive weapons were used namely, bush knives and axe in the attack.
(vii) A life was lost as a result of the attack.
31. The mitigating factors are:
(i) The prisoners pleaded guilty early.
(ii) They made early admissions in their respective records of interview with the Police.
(iii) They are unsophisticated villagers.
(iv) Prisoner Meire Togomu is a youthful offender as he was 16 years old when he committed the offence.
(v) There was a subsequent payback killing following the death of the deceased Petoro Paul. A female relative of prisoner Silingo Abitena was killed with a shotgun by the relatives of the deceased. Silingo Abitena and his 5 year old son were also injured during the attack. It is clear that the relatives of the deceased Petoro Paul took the law into their hands and retaliated. This is considered a special mitigating factor in favour of the prisoners.
32. The extenuating circumstances are:
(i) There was de-facto provocation in that the prisoners were upset over the death of their brother Jose Abitena who was stabbed earlier on by the brother of the deceased Sio Paul and eventually succumbed to his injuries and died a few months later.
(ii) There was some pre-planning involved but the plan was to attack Sio Paul the person responsible for killing Jose Abitena and not the deceased but when they arrived at Omatoro place Sio Paul was not around so they attacked his brother Petoro Paul (deceased) instead. It was a spontaneous attack. It was the case of the deceased being at the wrong place at the wrong time.
(iii) They each played different roles in the attack. Silingo Abitena cut the deceased on the head with a bush knife and Meire Togomu also cut the deceased on his arm with an axe. Aipi Paul was unarmed and did not take part in the attack. He stood outside the hut and watched.
The Gravity of the Offence
33. It was obvious that the attack was pre-planned with the use of offensive weapons consisting of an axe and bush knives. There was a strong desire on the part of the prisoners to do grievous bodily harm (GBH).
34. This was a vicious mob attack and the deceased suffered horrific wounds to his body as shown in the photographs taken during the post mortem. There were two (2) axe wounds to the right side of the head measuring 7.5cm and 8cm in length respectively.
35. There was a knife wound stretching from the right-centre of the head towards the face measuring 17.5cm in length. There was also another knife wound on the left side of the head towards the upper area of the face measuring 17cm in length. The wound was very deep and exposed the brain tissues. The left hand and arm were also slashed. The ulna in the forearm was fractured by a wound caused by an axe that is 3cm long and 1.5cm deep. The wrist was slashed exposing the wrist bones. The sole of the left foot below the ankle was completely severed. It was cut open exposing the flesh. The medical cause of death was severe brain injury as a result of a deep depression wound to the head caused by a sharp instrument that exposed the brain tissues.
36. The question regarding the gravity of the offence was decided by the Supreme Court in Lawrence Simbe v The State [1994] PNGLR 38 and it was held that each case must be determined on its own peculiar circumstances:
“We say that it is not a matter of tariff for a particular type of murder but, rather, that each case must be decided on its own facts, bearing in mind the various factors that are involved in each case, the gravity of the attack, and the concern of the court at people who take the law into their own hands.”
37. Applying this rationale, I am of the view that this case appropriately falls under category 3 of the Manu Kovi guidelines. Hence, the starting point on the term of imprisonment should be between 20 – 30 years. However, I am also mindful that the court is not necessarily limited or restricted to stay within the confines of the prescribed sentencing range as it has a wider sentencing discretion to also consider a lesser sentence. And in that regard I take into account the degree of and extent of the offender’s participation in the commission of the offence. And for that, I relied on the factual circumstances of the case and also what each prisoner said in the Police record of interview and in their allocutus.
The Prevalence of the Offence
38. Killing in retaliation or as a revenge sometimes referred to as ‘payback killing’ is becoming too prevalent in the country. Payback killing in all its forms is unlawful and the perpetrators must be severely punished. The court must show its disapproval against such killings by imposing a long custodial sentence to deter others from committing the offence.
(i) Sentence for Prisoner Silingo Abitena
39. It is obvious that prisoner Silingo Abitena was the main instigator. He planned the attack and carried it out. He was determined to take revenge over the death of his brother Jose Abitena. He used a dangerous weapon, a bushknife to cut the deceased on his head. He delivered the fatal blow to the head with a strong intent to do grievous bodily harm. It was a vicious attack.
40. Accordingly, I Sentence Silingo Abitena to Twenty (20) years imprisonment being the head sentence. I deduct seven (7) months for the pre-trial custody period leaving a balance of 19 years and 5 months to serve in prison. I do not intend to give any suspended sentence and therefore, the prison term will be served out in full.
(ii) Sentence for Prisoner Meire Togomu
41. According to the facts prisoner Meire Togomu delivered the first blow as he was the first one to cut the deceased on his arm with an axe severing the wrist and the knuckle of the left hand. He also chopped the deceased on his left foot stopping him from running away. He continued to chop him on various parts of his body. It was indeed a vicious attack. I take into account the prisoner’s age as he was 16 years old at the time he committed the offence. Despite the prisoner’s young age, the Probation Officer does not consider him suitable for probation in the pre-sentence report. It was left to the court to decide the appropriate penalty. I take into account the fact that the prisoner is a young offender. Sentencing a youthful offender to a long term imprisonment has its disadvantages one of which is that it could turn him into a hardened criminal. Another is that it does not give the prisoner the opportunity to reform himself and integrate back into the community. He told the court that he wants to get married, raise a family and settle down when he comes out of prison. I want to give him that chance and it is only fair that I do so.
42. Accordingly, I Sentence Meire Togomu to a head sentence of 15 years imprisonment. I deduct 7 months for the pre-trial custody period leaving a balance of 14 years and 5 months to serve in prison. No suspended sentence is given and the prisoner will be required to serve his term in full.
(iii) Sentence for Prisoner Aipi Paul
43. Prisoner Aipi Paul was a by-stander and did not play any active role in the commission of the offence. He however, knew of the plan to attack Sio Paul in revenge for the death of Jose Abitena and decided to accompany his two co-accuseds to look for Sio Paul. He stood outside the bush hut and kept watch when the attack on the deceased was carried out inside the hut by his two co-accuseds.
44. Accordingly, I sentence Aipi Paul to 12 years imprisonment as the head sentence. I deduct 7 months for the pre-trial custody period leaving a balance of 11 years and 5 months to serve. No suspended sentence given. Prisoner to serve his prison term in full.
Orders Accordingly,
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence
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