State v Ligat [2019] PGNC 178; N7888 (21 June 2019)

N7888

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO’S 593, 594,595 of 2017

THE STATE

-v-

DOTA LIGAT
EMIL LIGAT
&
KAPITEN LIGAT
Defendants

Kokopo: Kangwia, J
2019: 18 & 21 June

CRIMINLAW LAW – sentence – guilty plea to charge of murder – murder of deceased resulting from a group fight – mitigating factors and aggravating factors considered – prisoners reacted to a de facto provocation – deceased attacked them first – prisoners sentenced to varying years in prison- pretrial custody period deducted – s300(1)(a) Criminal Code Act

Cases Cited:

Manu Kovi –v- The State (2004) SC 789
Sawan v the State (2010) SC 1076
Simon Kama –v- The State (2004) SC 740
State v Boat Yokun & Ors (2002) N2337
State v Gurua (2002) N2312
State v Sagalol & Ors (2018) N7353

Counsel:

G Tugah Jr, for the State
N. Katosingkalara, for the Defence

SENTENCE

21^st June, 2019

1. KANGWIA, J.: This is a decision on sentence. The three prisoners were convicted after they each and severally pleaded guilty to a charge of Murder under s. 300(1)(a) of the Criminal Code Act.
   
2. The facts to which the prisoner pleaded “Guilty” to were, that on 25 December 2016 the deceased and others fought with prisoner Emil Ligat on the road. He went and reported the matter to his brother Dota Ligat who is the first Defendant. Dote Ligat went to the scene of the earlier fight and a fight erupted between him and the deceased and his group. The second and third prisoners went armed with bush knives and assisted their brother to fight the deceased and others. Dota Ligat who was armed with an iron rod chased the deceased and hit him on the head with the rod. The deceased fell down. While the deceased was lying down Dota Ligat hit the deceased again on the head with his iron rod. The deceased died on the way to the hospital.
   
   1. Prisoner Dota Ligat is 35 years old single. He is a villager.
   2. Prisoner Emil Ligat is 40 years old and married with 4 children, he is the eldest in his family and is Catholic. He is a villager.
   3. Prisoner Kapiten Ligat is 38 years old and married with no children. He is a villager.
      
3. They all have no prior convictions.
4. On their allocatus the prisoners said;
   
   1. Dota Ligat, “I say sorry to the relatives of the deceased. They entered the road armed looking for us. I did not plan to kill the deceased. I am surprised to appear in Court. Deceased was from another ward.”
   2. Emil Ligat, “I say sorry for the problem and the relatives of the deceased. I ask for leniency with a low sentence.”
   3. Kapiten Ligat, “I’m humbled by the Court. In the incident they also cut me. I did not cut or hit anybody. I humbled myself and came. Three of us are here. I ask for leniency.”
      
5. On their behalf, Mr. Katosingkalara submitted that the prisoners pleaded “Guilty” early and saved time and expenses for everyone.
   
6. They were first time offenders. The case involved the presence of de facto provocation as the deceased and his friends assaulted prisoner Emil Ligat after being intoxicated. The deceased was armed with a bush knife and the death arose out of a group fight. The prisoners expressed remorse during their allocatus.
   
7. This was not a case that fell into the worst category of murder. It arose out of drunken arguments. Relying on the case of Manu Kovi v the State (2004) SC789. It was submitted for the defence that this case fell into category 01 and 02 of murder cases and a starting sentence between 16 and 20 years was appropriate with deductions.
   
8. For parity in sentencing counsel referred to the case of the State v Sagalol & Ors (2018) N7353 where 9 prisoners were sentenced to imprisonment between 21 and 22 years for various roles they played in the murder of another person. Citing the case of the State v Gurua (2002) N2312 it was further submitted that the other two prisoners should receive a lesser sentence from Dota Ligot.
   

There was no pre-planning even though weapons were used.

9. On the State’s behalf, Mr. Tugah submitted that this case fell into the 3^rd category of Manu Kovi and a sentence between 20 and 30 years was appropriate. Although the maximum penalty prescribed for Murder was life Imprisonment the maximum was not warranted in the present case.
   
10. The main aggravating factor was that a life was lost and the prisoners played a role in the loss of life by the deceased. Some elements of de facto provocation were present but the force applied was excessive. Dangerous weapons were used. Attacks were vicious. It was a mob attack. The deceased died from injuries sustained after he was hit twice on the head with an iron bar which was consistent with the medical report. There was a strong desire to do grievous bodily harm.
    
11. He referred to numerous cases of murder which showed that sentences between 20 and 30 years were imposed by the Courts.
    
12. Both counsels were unable to address the Court on other possible matters as the Pre-sentence Report (PSR) was not ready at the time of submissions on sentence.
    
13. However, before the sentence was pronounced a copy of the PSR was given in chambers. On a quick perusal of the report the possibility of compensation orders was raised even though the prisoners were stated in the report as dangers to society as the grounds for their unsuitability for probation. I consider that compensation should not be ordered by the Court.
    
14. The incident arose out of celebrations in their own village settings where everyone was intoxicated. Whatever ensued therefrom should be resolved among themselves if they so desire. They are not strangers to each other. They should have considered the consequences before committing the offence. The deceased was also not an innocent by-stander. Based on those observations no probation orders shall be made.
    
15. This is another case of a death arising out of fighting while being intoxicated by alcohol. It is obvious that the deceased was one of those who was intoxicated and involved in the fight.
    
16. The Post Mortem report showed that the head injury was caused by application of a blunt object which is consistent with the fact that he was hit twice on the head with an iron rod.
    
17. This is a case where the prisoner’s allocatus are the only presentation to Court apart from the Record of Interview and submissions of Counsel. In the absence of contrary statements or evidence, the prisoner’s plea of guilty and the statement on allocatus are accepted for consideration of an appropriate sentence. It is accepted that there was de facto provocation present.
    
18. The Defence stated that the offence fell between the 1^st and the 2^rdcategory of the Manu Kovi guidelines while the State stated that it fell under category 3 from which positions their various suggestions were made in submissions. The actual sentence to be imposed is discretionary.
    
19. In the Manu Kovi case, the first category suggested 12 years to 15 years for an uncontested case with ordinary mitigating factors and no aggravating factors. Also considered were the suggestions for Murder in the case of Simon Kama –v- The State (2004) SC 740. In that case it was suggested in the 1^st category that where there is a guilty plea with no factors in aggravation a sentence of 12 to 16 years should be imposed. The Court there went onto suggest six other categories with increases for every category of Murder.
    
20. The present case was an uncontested case with ordinary mitigating factors. The prisoners were first time offenders and they pleaded guilty. It must be accepted also that they did express some remorse.
    
21. The aggravating factor though is that an iron bar was used by Dota Ligat to hit the deceased two times on the head. Application of such force indicates a strong desire to do grievous bodily harm. The deceased was armed with a bushknife. In my opinion the mitigating factors are rendered insignificant in light of the aggravating features present.
    
22. The primary issue is that a death was caused. Prisoner Dota Ligat played the main role that caused the death.
    
23. The other two prisoners did not inflict any injury on the deceased body apart from being in the midst of the fight and their involvement in fighting the others.
    
24. A life was lost and it can’t be replaced under any circumstance. That situation attracts a custodial sentence. A custodial sentence to reflect society’s general abhorrence for all forms of homicide must be factored in any sentence imposed. The sentence must also serve as a personal deterrence as well as the public at large and convey the message that killings of any kind will be met with high penalties.
    
25. Having said that, I also consider that the deceased was not an innocent bystander or caught up in someone else’s problem. He through his involvement contributed to his death.
    
26. In spite of counsel’s positions, I consider that this case falls into the lower end of category 3 of the Manu Kovi guidelines. This is a sentence after they pleaded guilty. There was a vicious attack by the the use of dangerous weapons associated with a strong intention to do grievous bodily harm present.
    
27. This case in my view attracts a custodial sentence for all prisoners for the sole reason that a life was lost at the hands of the prisoners. The prisoners took up arms to fight with the deceased and his friends.
    
28. For parity in sentencing it is deemed appropriate that each prisoner be sentenced according to the degree of participation in line with the decisions in the case of State v Boat Yokun & Ors (2002) N2337 and Sawan v the State (2010) SC 1076, even though they are all caught by s 7 and 8 of the Criminal Code as principal offenders. That is apparent from the undisputed evidence.
    
29. The evidence shows that prisoner Dota Ligat hit the deceased twice on the head with an iron rod which was consistent with the medical report that the death was caused by the use of a blunt object. His sentence must be higher than his two co-offenders. His co-offenders were involved in the fight but they played a lesser role in the death of the deceased.
    
30. A sentence similar to those sentences imposed by the Courts in the cases referred to by counsel is appropriate. In that vein the prisoners are sentenced in the following manner:
    
    1. Prisoner Dota Ligat is sentenced to 20 years imprisonment.
    2. Prisoners Emil Ligat and Kapiten Ligat are each and severally sentenced to 10 years imprisonment.
       
    3. For all prisoners any time they have spent in custody awaiting trial and sentence shall be deducted and they shall serve their respective balances at CS Kerevat.
       

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence