State v Alipio [2018] PGNC 508; N7609 (23 November 2018)

N7609

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1226 OF 2017

THE STATE

V

MARK SIMO ALIPIO

Alotau: Toliken, J
2018: 12^th July, 24^th August, 23^rd November

CRIMINAL LAW – Sentence – Murder – Plea – Prisoner kills deceased by cutting him several times on various parts of body with grass knife – Deceased had adulterous affair with and living with prisoner’s wife when attacked and killed – Mitigating/extenuating and Aggravating factors considered –Appropriate sentence – 20 years imprisonment less time in custody – Nil suspension – Criminal Code Ch. 262, s 300(1)(a).

Cases Cited

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No. 3) [1982] PNGLR 92
Manu Kovi v The State (2005) SC 789
The State v Wilson Mari (2011) N4419

The State v Bobby Lato; CR 61 of 2013 (unreported and unnumbered judgment dated 21^st November 2014).
Counsel

H Roalakona and J Apo, for the State
N Walis, for the prisoner

SENTENCE

23^rd November, 2018

1. TOLIKEN J: On 12^th July 2018, the prisoner Mark Simo Alipio pleaded guilty to an indictment charging him for murdering one Skita Daniel on 07^th May 2017 at Ebadidi village, Ferguson Island, Esa’ala District, Milne Bay province thus contravening Section 300 (1)(a) of the Criminal Code.
   
2. The deceased had been having extra marital affairs with the prisoner’s wife. The prisoner was not happy when he found out about this. He asked his wife to return to him but she refused initially at first. Then sometime prior to May 2017, the prisoner’s wife returned and stayed with him for a week on Ferguson Island. She, however, advised him that she had to return to Waema village outside Alotau Town because she had secured a job at the Driftwood Resort. The prisoner later followed her to Alotau only to find out that his wife was not working at the Driftwood but had gone to live with the deceased. He then returned to his village on Ferguson Island.
   
3. On 07^th May 2017, the prisoner armed himself with a grass knife and went to Ebadidi village where he attacked the deceased cutting him four times. The deceased sustained fatal wounds from which he died.
   
4. The medical report, which included coloured photographs of the deceased’s wounds showed that he sustained a deep 14cm long x 6cm deep right posterior wound extending from the right Iliac crest to the thoraco-lumbar region of the vertebrae, a right shoulder gaping wound measuring 14cm long x 2 cm deep along the shoulder blade severing major blood vessel, an 8cm long x 3.6 cm deep wound on the left upper arm, a right leg wound measuring 5 cm long x 2cm deep which severed the right tibial muscle and chopped pointer and digital fingers and severed lateral aspect of the right palm of the right hand.
   
5. I confirmed the prisoner’s provisional guilty plea and convicted him. I then adjourned the matter for allocutus and submissions and also to allow for a pre-sentence report to be furnished. I administered the allocutus and heard submission on 24^th August 2018 and adjourned for sentence.
   
6. The offence of murder carries a maximum penalty of life imprisonment – the maximum penalty, as is trite, being reserved for the worst instances of the offence. Hence, whether the prisoner here will receive the maximum penalty will depend on whether or not his case falls within the worst category of the offence and according to the peculiar circumstances of his offence. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92).
   
7. My task then is to determine an appropriate sentence for the prisoner.
   
8. The case of Manu Kovi v The State (2005) SC 789 is the current leading authority on sentencing for homicide offences. For murder the guidelines are as follows –
   

Category	Circumstances	Sentence
1.	Plea. Ordinary cases. - Mitigating factors with no aggravating factors -No weapons used - Little or no pre-planning - Minimum force used -Absence of strong intent to do GBH.	– 15 years
2	Trial or Plea. Mitigating factors with aggravating factors - No strong intent to do GBH -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 GBH - Dangerous or offensive weapons used e.g. gun or axe - Other offences of violence committed.	– 30 years
4	Trial or Plea Special aggravating factor – No extenuating circumstances – No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence – Pre-meditated attack – Brutal cold-blooded killing – killing in course of committing another offence – Complete disregard for life .	Life Imprisonment

9. Viewing the prisoner’s case objectively, I note that it shows pre-planning, viciousness, use of dangerous weapon and a strong desire to cause grievous bodily harm. The prisoner’s culpability was therefore quite high and the case ought to fall within the upper end of Category 2 and the lower end of Category 3. It should thus attract a sentence between 19 years to 24 years.
10. The prisoner is 35 years old and comes from Mokai village, Bosalewa Ward, Dobu RLLG, Esa’ala District of Milne Bay. He is married with 2 children and is the last born in a family of 6 siblings. His parents are both deceased. He is a member of the Seventh Day Adventist Church. He has no formal education and hence illiterate and has never been formally employed. He is a first time offender. He has been in pre-trial custody for 1 year 6 months and 15 days.
    
11. In his address to the Court the prisoner apologised to the Court and to God for his crime. He also apologised to the deceased’s family and to his community. He said he is a first time offender and in pleading guilty to his offence he said that he takes full responsibility for his offence. He promised that he will not ever re-offend and asked for probation.
    
12. In his PSR the prisoner said that his wife had been having an affair with the deceased when she came over to Alotau from the village. He had heard rumours and had wanted to find out for himself it this was true, and so he followed his wife to Alotau where he reside at the Rossel Compound at Ahioma. His wife heard about his arrival and went and stayed with him for a week. He asked her about her alleged affair with the deceased but she denied it.
    
13. He stayed in Alotau for a while to sell his brus (tobacco) while his wife returned to the island. When the prisoner returned to the village he found out that his wife had lied to him and that she in fact had gone to live with the deceased at Ebadidi village in the inland Salakahadi area. Angered and frustrated, he armed himself with a Pukpuk brand grass knife he set on foot at night to Ebadidi village in search of his wife and the deceased. He arrived at the village and found them in the deceased’s kitchen and in his anger he attacked the deceased cutting him on his shoulder, back, leg and hand.
    
14. Mr. Walis submitted that given the fact that the prisoner was provoked in the non-legal sense, amongst other mitigating factors an appropriate sentence for the prisoner ought to be 16 – 18 years and the Court may consider suspending part of the sentence.
    
15. The prisoner’s PSR report recommended a partial suspension of sentence and that the offender be placed on 5 years probation with condition that he performs the traditional three-part compensation and reconciliation ceremony according to local custom.
    
16. The State on the other hand, while acknowledging that the prisoner’s wife’s affair was an extenuating circumstance, that must be accorded to the prisoner’s benefit, submitted among other things, that there was a very strong intention by the prisoner to cause grievous bodily harm of the deceased judging from the ferocity of his attack on him and the nature of the wound he inflicted on various parts of the deceased’s body. There was pre-planning, counsel submitted and this can be gauzed by the long distance which the prisoner had to walk to get to the deceased’s village. The State therefore called for a sentence between 19 – 22 years.
    
17. Moving on, I find the following mitigating and extenuating factors in the prisoner’s favour –
    
    • He pleaded guilty very early to the charge
    • He co-operated very early with the police
    • He is a first time offender
    • He is a simple uneducated and unsophisticated villager
    • He was of prior good character
    • He acted alone
    • Has shown some remorse and has offered to complete the customary compensation and reconciliation ceremony which his relatives had already commenced.
    • He was provoked in the non-legal sense by the deceased adulterous affair with his wife and catching them together on that night in question is in fact an extenuating circumstance which had a significant impact on his mental and emotional state at the relevant time.
      
18. Against him though are the following aggravating factors –
    
    • He used a dangerous weapon to attack and kill the deceased

• He had a very strong desire to cause grievous bodily harm on the deceased and this can be gauzed from the number and type of wounds he inflicted on various parts of the deceased’s body
• There was pre-planning involved. The prisoner did not act in the spur of the moment. Rather he had clearly intended to confront his wife and the deceased and undertook the long uphill walk through the night to Ebadidi which is located in the mountain region of Salakahadi on Ferguson Island
• This is a very prevalent offence not only in Esa’ ala District but also within this province and country.
  

19. What should then be an appropriate sentence for the prisoner? Both counsel had cited several cases to the Court and submitted that the prisoner’s sentence ought to be similar to the sentences in those cases. Both the State and the defence cited The State v Bobby Lato; CR 61 of 2013 (unreported and unnumbered judgment of mine dated 21^st November 2014). There I sentenced the offender to 23 years. The offender was provoked into attacking the deceased after the deceased and his relatives had cut down about 50 betel nut trees belonging to the offender on which they were disputing. The offender speared the deceased and then proceeded to cut him all over his body. The State said that a sentence slightly below that of Bobby Lato – perhaps 22 years will be appropriate.
    
20. Mr. Walis on the other hand was of the view that a more appropriate sentence should be similar to that imposed on the offender in The State v Wilson Mari (2011) N4419 (Cannings J) because both offences were provoked by an adulterous affair. In Wilson Mari offender was convicted after trial for the murder of a friend whom he had been drinking with and who was later seen drinking and socializing with his wife. He followed his wife and the deceased and stabbed the deceased killing him almost instantly. He was sentenced to 22 years from which the period in pre-sentence custody was deducted. None of the balance was suspended.
    
21. I agree that the prisoner’s head sentence ought to be in the range suggested by counsel – between 18 – 22 years. This is a case where the level and degree of non-legal provocation was higher than in Mari’s case and certainly much higher than in Bobby Lato.
    
22. This is a crime of passion and I can understand the prisoner’s anger and rage, not simply because his wife had been lying to him about her affair with the deceased, but also by the fact that after leaving the prisoner in Alotau she returned to the island and went straight to the deceased’s village. And finding them together at the deceased’s hamlet exacerbated the situation.
    
23. It is true that the prisoner ought to have taken the better option of pursuing a legal and lawful resolution to his problem. However, one must also acknowledge human frailty and that people react differently to situations that will test their restraint and resolve.
    
24. This is not to say that reactions to situations such as that which the prisoner found himself ought to be condoned. Far from it for people who take other peoples life must be served their just dessert. However, discounts may be given where appropriate and this is a case in which I will give an appropriate sentence which takes into account, not only the prisoner’s many mitigating factors, but more importantly the fact that he was provoked in the non-legal sense, which I have said is an extenuating factor. But on the same token the prisoner must be given a sentence which must reflect the Court’s and society’s disapproval for this type of crime. The crimes list for this province is replete with homicide cases which rank just slightly above sexual offences. Hence the prisoner’s sentence must serve to punish him personally and also deter others out there in our communities because the sanctity of life appears to be losing its value judging by the number of homicide cases before this Court.
    
25. I would like to think that in the circumstances an appropriate sentence for the prisoner ought to be 20 years. I therefore sentence him to 20 years imprisonment less the period spent in pre-sentence custody which is 1 year 6 months and 15 days. That should leave a balance of 18 years 5 months and 15 days.
    
26. Should any of this be suspended? I do not think so. Regardless of the recommendation in the PSR for a partial suspension I do not think that the circumstances of this case warrant a consideration of the discretion. There is too much killing many of which are totally unnecessary and a strong message must be sent out to our villages, towns and communities that the wanton taking of life will not be condoned nor should people think that payment of compensation will get them sympathetic treatment from the Court. None of the resultant sentence will therefore be suspended.
    
27. Ordered accordingly. The prisoner has the right to appeal to the Supreme Court within 40 days should he be aggrieved by his sentence.

________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyer for the Prisoner