N7338

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 381 OF 2017

THE STATE

V

JAMES PETER KENNETH

Lae:  Numapo AJ
2018:	 4, 17, 20 April, 4 May & 7 June

CRIMINAL LAW – Particular offence – Murder – Guilty Plea – Domestic Violence – Some Degree of de facto provocation - Sentencing Principles – Appropriate Sentence – Sentencing Discretion – Aggravating & Mitigating factors – Extenuating circumstances – Sections 300 & 19 of Criminal Code

Held:

(i)	Factual circumstances of this case does not place it under a category of worst case to attract a maximum penalty prescribed by law.

(ii)	Sentencing guidelines only provide as a guide it does not take away the sentencing discretion of the court.

(iii)	A sentence imposed by the court must reflect the purpose of sentencing such as deterrence, rehabilitation, restitution and retribution.

(iv)	Homicide cases in domestic settings is becoming too prevalent that it calls for a longer custodial sentence.

(v)	There was some degree of de facto provocation.

(vi)	Prisoner sentenced to 18 years imprisonment.

Cases Cited:

Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Manu Kovi v The State (2005) SC 789
Simon Kama v The State (2004) SC 740
State v Lom [2012] PGNC 63; N4725
State v Mareva [2012] PGNC 44; N5220
State v Rende [2013] PGNC 44; N5220
State v Roy N5968 of 19 March 2015
State v Tuu N3706 of 17 March 2008
Ume v The State (2006) SC 836

Counsel:

J. Done, for the State
S. Katurowe, for the Defence

SENTENCE
7th June, 2018

1.  NUMAPO AJ: This is a sentence on murder. The prisoner James Peter Kenneth pleaded guilty to one count of Murder contrary to section 300 (1) (a) of the Criminal Code Act.  The facts to which the prisoner pleaded guilty to were that; on the 4th of July 2016 at the Lae Main Market the prisoner met the deceased Jenny Mapi Labu and had an argument with her over some marital issues. They both got on a PMV bus and went to Kamkumung. At Kamkumung Block 15 they fought. The prisoner stabbed the deceased twice on the chest and twice on the abdomen with a kitchen knife. The deceased died from excessive loss of blood due to the multiple wounds. The prisoner fled the scene and was at large until his apprehension on the 29th of April 2017.

A.	THE CHARGE

2.   Section 300 (1) (a) of the Criminal Code reads:

300. Murder

(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 a person killed or to some other person;

Penalty: Subject to Section 19, imprisonment for life.

In his allocutus the prisoner apologized to the court and the relatives of the deceased.

B.	APPROPRIATE SENTENCE

3.   The maximum penalty provided under section 300 of the Criminal Code is life imprisonment. The court has a wider sentencing discretion to consider a lesser sentence by virtue of section 19 of the Criminal Code. Section 19 however, does not provide a range of lesser sentences for consideration and instead left it to the discretion of the court to decide on the appropriate lesser sentence.

4.  The State conceded that the present case does not fall within the category of worst cases and therefore, should not attract the maximum penalty of life imprisonment.  Maximum penalty is reserved for worst cases. See: Goli Golu v The State [1979] PNGLR 653 & Avia Aihi v The State (No.3) [1982] PNGLR 92. State submitted however, that a longer term of imprisonment should be imposed given the prevalence of the offence to serve as deterrence. 

5.  There are two (2) cases that set out some sentencing guidelines for Murder cases. The first case is that of Simon Kama v The State (2004) SC740 and the second case is that Manu Kovi v The State (2005) SC789. The Supreme Court in these two (2) cases outlined the sentencing tariffs on murder in the following terms:

1.	Sentencing Guidelines in Simon Kama’s case:

(a)	Category 1: 	Guilty Plea – No aggravating factors:  12 – 16 years imprisonment.

(b)	Category 2: 	Guilty Plea – Aggravating factors other than use of firearms and the commission of another serious offence: 17 – 30 years.

(c)	Category 3: 	Guilty Plea – Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting another serious offence: 31 years to life imprisonment.

(d)	Category 4: 	Not Guilty Plea – No aggravating factors: 17 – 21 years.

(e)	Category 5: 	Not Guilty Plea – Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting to commit another serious offence: 22 – 40 years.

(f)	Category 6: 	Not Guilty Plea – Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting to commit another serious offence: 41 – life imprisonment. 

2.	Sentencing Guidelines in Manu Kovi’s case:

(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 strong 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 of committing another serious offence and complete disregard of a human life: Life Sentence.

6.  There are some slight differences in terms of years between the guidelines under Simon Kama and those under Manu Kovi but in general it highlighted the increases in sentences imposed on murder over the years. The Manu Kovi guideline is a recent decision of the Supreme Court and I intend to use that as a guide in the present case. 

C.	AGGRAVATING AND MITIGATING FACTORS

7.  Each case must be considered on its own merits and in order to place the present case under the appropriate category of the sentencing guidelines the court must take into account the relevant factors such as the aggravating and mitigating factors, extenuating circumstances, gravity of the offence and any other factors or  circumstances peculiar to the case. The prevalence of the offence is also a consideration.

8.   In the case of Ume v The State (2006) SC 836 the Supreme Court described the aggravating factors, extenuating circumstances and mitigating factors as follows:

“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.”  

9.   I now turn to the aggravating and mitigating factors of the present case.

(a)	Aggravating Factors

(i)	This was a vicious attack.

(ii)	The deceased suffered multiple stab wounds to her chest and abdomen.

(iii)	There was a strong intent to do grievous bodily harm.

(iv)	An offensive weapon was used.

(v)	The argument between the offender and the deceased went on for several hours in different locations before she was killed.

(vi)	The prisoner escaped after committing the offence and was apprehended a year later.

(vii)	Homicide cases in domestic settings are becoming too prevalent.

(viii)	The deceased is not married to the prisoner and both were living in a de facto relationship. The prisoner is a married man with two children and his family lives in Zenag village whilst he was living with the deceased in Lae.

(b)	Mitigating Factors

(i)	The prisoner pleaded guilty early.

(ii)	The prisoner made early admissions.

(iii)	The prisoner is the first time offender.

(iv)	The prisoner expressed remorse.

(v)	The prisoner is a youth leader of his Church and is actively involved in the Church activities.

(c)	Extenuating Circumstances

(i)	There was some degree of de facto provocation in that the deceased followed the prisoner to Kamkumung from the main market and continued on with the argument when she could have easily gone elsewhere to avoid further problems. There was no suggestion that the deceased was forced onto the PMV bus to go with the prisoner to Kamkumung.

10.   A number of case laws similar in circumstances to the present case were also cited by both the State and Defence to assist the court with its deliberations. I list some of them here below:

(i)	State v Lom [2012] PGNC 63; N4725 (Gauli AJ)

The offender in that case killed his wife after he found her having an affair with another man. He chopped her on her head, arm and leg with a bushknife. She died instantly. On a plea of guilty, the offender was sentenced to 18 years imprisonment.

(ii)	State v Mareva [2912] PGNC 222; N4805 (Gauli AJ)

The offender in that case beat his wife continuously for three days with a car jerk handle. She died from injuries sustained all over her body. The offender pleaded guilty and was sentenced to 24 years.

(iii)	State v Rende [2013] PGNC 44; N5220 ( David J)

In that case, the offender pleaded guilty to killing his wife. He chopped the deceased many times on her body. She died from the injuries sustained. On plea of guilty, the court held that the appropriate sentence was 24 years imprisonment. However, the court imposed 12 years instead due to the offender’s advanced age. 

(iv)	State v Roy N5968 of 19 March 2015 (Toliken J)

The deceased is married to the prisoner. They had an argument over cooking arrangements as the prisoner refused to do the cooking. The deceased picked up a stick and hit the prisoner on the back of her shoulder and also on her legs. The prisoner then got a kitchen knife and stab the deceased on the left side of his chest. The knife pierced the heart and caused heavy bleeding and the deceased died. The prisoner was sentenced to 14 years imprisonment.

(v)	State v Tuu N3706 of 17 March 2008 (David J)

The deceased and the offender were married to the same husband. The deceased travelled into Mt Hagen with a little child to go to the hospital in a PMV truck driven by her husband. The prisoner followed them into town and confronted the deceased. An argument developed which led to a fight. The prisoner took out a kitchen knife and stabbed the deceased on her abdomen. The knife penetrated the right kidney and part of her liver and the deceased died a little later. The prisoner pleaded guilty and cooperated well with the police and expressed remorse. She was sentenced to 16 years imprisonment.

D.	PRE-SENTENCE REPORT

11.   The prisoner is married with two young children and his family lives in Zenag village, Mumeng LLG, Morobe Province whilst he lives in Lae with the deceased in an extra marital relationship. The deceased is also married with four children but left her husband and children in Bulolo and lived with the prisoner. They met when they were both working for Zenag Chicken. They have been together for quite some time now. The prisoner decided to leave the deceased when he found out that she was married with four children. The deceased’s husband confronted him in Bulolo where they were living with the deceased’s relatives. Prisoner then left and came down to Lae and the deceased followed shortly after. They rented a place at 14 Block in Kamkumung in Lae and were residing there. He then left and was living at Markham Farming outside of Lae. He came to Lae on the day in question and met the deceased at the main market and that’s when the argument started. They both got into the PMV bus and went to Kamkumung and the argument continued until they started fighting and that’s when a kitchen knife was used to stab the deceased.

12.  The prisoner expressed remorse and apologized for what happened. He hopes that the deceased’s family will forgive him. 

13.   The Probation Officer in her assessment does not think the prisoner is a threat to anyone or to the community. However, given the seriousness of the offence the prisoner is considered not suitable for probation and accordingly non-custodial sentence has not been recommended.

E.	PRESENT CASE

14.  Having considered all the factors and circumstances, I agree with both the State and Defence that this case falls under Category 2 of the Manu Kovi Guidelines which carries an imprisonment term of between 16 – 20 years. The next task for the court now is to decide what should be the head sentence in this case. And in doing so, I take into account the relevant factors such as the gravity of the offence, the aggravating factors and circumstances and the mitigating factors, and assess what factors and considerations stand out strongly that will dictate the type of sentence to be imposed.
 
15.  Firstly, in Aggravating factors I find the following strong points: 

(i)	An offensive weapon was used. 

(ii)	The deceased suffered multiple stab wounds to her chest and abdomen and which showed a strong intent to do grievous bodily harm. 

(iii)	There were some elements of viciousness.

(iv)	The incident arose from a domestic argument.

(v)	Prisoner went into hiding after committing the offence and was apprehended almost a year later. Although, he expressed remorse and apologized for what he did but he has not demonstrated that by turning himself in at the police station after he committed the offence. Had it not being for a police witness, Timothy Kalo who identified the prisoner and assisted the police to apprehend him the prisoner would still be on the run today.  

16.  Secondly, for Mitigating factors, there are only two things that go in the prisoner’s favour and these are: 

(i)	He pleaded guilty early. 

(ii)	He is a first time offender. 

17.  Overall, I am convinced that the gravity of the offence itself and the aggravating factors outweigh the mitigating factors in this case. It will therefore, push the barometer towards the upper end of category 2 of the sentencing scale in the Manu Kovi Guidelines.

18.   Finally, the increasing number of killings arising out of a domestic setting is becoming a concern for the courts in recent times. Domestic violence in all forms is becoming too prevalent and this has prompted both the government, Church groups and civil societies and NGOs to direct their focus and resources in combating this problem. The court has a role to play in ensuring that those who committed such offence are given a long custodial sentence. This will also serve as a deterrence to other would-be offenders. And I intend to reflect that in this case.

F.	SENTENCE

(i)	I sentenced the prisoner to Eighteen (18) years imprisonment. 

(ii)	I deduct One (1) year and ten (10) days for the pre-trial custody period.

(iii)	Prisoner is to serve in full the balance of seventeen (17) years and twenty (20) days imprisonment.

(iv)	No suspended sentence.

Orders Accordingly,

Public Prosecutor:	 Lawyers for the State
Public Solicitor:  	 Lawyers for the Applicant