State v Patiken [2019] PGNC 232; N7911 (12 March 2019)

N7911

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1270 of 2016

STATE

V

PATRICK PATIKEN

Maprik: Gora AJ
2019: 04^th, 12^th March

CRIMINAL LAW – Sentence – Charge of murder – Section 300 Criminal Code – Maximum of Life Imprisonment – Maximum penalty reserved for worst type cases – Case to be decided on its own facts and circumstances.

CRIMINAL LAW – Serious murder case – Elements of de-facto provocation and self-defense – Sentencing tariffs – Vicious attack – Use of bush knife – Desire to do grievous bodily harm – Sentence part custodial and part non-custodial.

Cases Cited

Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State [2005] PGSC 34; SC 789

Counsel

Mr. A Kupmain, for the State
Mr. S Parihau, for the Prisoner

JUDGEMENT ON SENTENCE

12^th March, 2019

1. GORA AJ: INTRODUCTION: Prisoner Patrick Patiken and Moses Kuaru Patiken (co-accused) were charged with one count of wilful murder pursuant Section 299 (1) of the Criminal Code. Both pleaded NOT GUILTY to an Indictment which is in the following terms:
   

“PATRICK PATIKEN and MOSES KUARU PATIKEN both of KUMUNUKUM village, Wosera Gawi, East Sepik Province stands charged that they, the said PATRICK PATIKEN and the said MOSES KUARU PATIKEN on the 25^th day of July 2015 at Kumunukum village in Papua New Guinea willfully murdered one TIMOTHY LAVI.”

2. After full trial court returned a verdict of NOT GUILTY on co-accused MOSES KUARU PATIKEN and was acquitted of the charge.
   
3. For PATRICK PATIKEN court returned a verdict of guilty on the lower charge of murder and convicted him accordingly. Sentence was deferred hence this ruling.
   

BRIEF FACTS

4. Facts are that on 25^th day of July 2015 at about 1.00pm you and your two wives were at Kumunukum No.3 village mending the roof of your house when the deceased TIMOTHY LAVI and his friend came. Deceased confronted you and enquired about the cocoa fermenter and cocoa buying business you operated jointly.
   

Deceased who was drunk at that time was very aggressive and attacked you and chopped one of you pointer fingers with a grass knife. You defended yourself and together with your son Moses Kuaru Patiken attacked the deceased. You chopped him with knife all over his head, arms and legs. He was rushed to Kaugial Health Center but died due to loss of blood.

ISSUE

5. What is the appropriate sentence to impose on you?
   

THE LAW

6. You were indicted under Section 299 (1) of the Criminal Code for the charge of wilful murder. However the court convicted you on the lesser charge of murder under Section 300 (1) (a) of the Criminal Code by reason that although the attack on the deceased was vicious there was no pre-planning involved and there were elements of de-facto provocation and self defense
   
7. Section 300 (1) (a) of the Criminal Code creates the offence of murder and it also prescribes the penalty. The provisions read:
   

“(1) Subject to the succeeding provisions of this Code, a person who unlawfully 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. Maximum penalty on the charge of murder is imprisonment for life. However I am aware it is now a settled law in this jurisdiction that the maximum penalty is reserved for the worst case scenario: Goli Golu v The State [1979] PNGLR 653.
   
9. It is also a settled law that each case must be decided own its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
   
10. Your case appears to be a very serious murder case given the serious nature of the injuries sustained by the deceased. He had fallen on the ground when you started chopping him with a bush knife all over his arms, legs, head and body inflicting serious injuries resulting in his death. The deceased was helpless and unable to defend himself at that time.
    
11. In homicide cases sentencing tariffs have been suggested by the Supreme Court in the case of Manu Kovi v The State [2005] PGSC 34; SC 789 (31 MAY 2005) which are now commonly applied for sentencing purposes and I intend to adopt these guidelines. In that case the Supreme Court suggested four (4) categories of sentencing tariffs for manslaughter, murder and wilful murder offences.
    
12. For murder cases in particular the sentencing tariffs suggested are as follows:
    

CATEGORY 1: No weapons are used – Little or no pre-planning – minimum force used – Absence of strong intent to do GBH.

Suggested sentencing tariff is 12-15 years.

CATEGORY 2: No strong intent to do GBH – Weapon used – Some pre-planning – Some elements of viciousness.

Suggested sentencing tariff is 16- 20 years imprisonment.

CATEGORY 3: Pre-planned – vicious attack – strong desire to do GBH- Dangerous or offensive weapons used e.g gun or axe.

Suggested sentencing tariff is 20- 30 years imprisonment.

CATEGORY 4: WORST CASE – Pre- meditated attack, brutal killing in cold blooded – killing of innocent harmless person – killing in the commission of another serious offence – complete disregard for human life.

Suggested Sentencing tariff is life Imprisonment.

SENTENCE

13. Defense counsel submitted you case falls within the lower range of Category 2 which has a suggested sentencing tariff of 16-20 years imprisonment.
    
14. State counsel on the hand submitted that it falls in Category 3 because your attack on the deceased was vicious, you used a bush knife causing serious injuries to his body. He further submitted that you had an intention to do GBH as evidenced by the injuries suffered by the deceased. Category 3 has a suggested sentencing tariff of 20-30 years imprisonment.
    
15. However I must remind myself that this case must be considered on its own facts and circumstances when deciding on the appropriate sentence to impose on you.
    
16. Evidence show that you were in your house with your two wives doing some repair work on the house roof when the deceased and one other person approached you. They were drunk and swore at you. Deceased without warning attacked you first with a grass knife and completely chopped off one of your pointer fingers. You then retaliated and gave chase to the deceased who jumped over a flower bed but he fell down on the ground. You then started chopping him with the bush knife causing severe injuries to his body resulting in his death.
    
17. What makes your case very serious is the fact that when you chased the deceased he fell to the ground. He was still lying on the ground when you started chopping him with a sharp knife. You did not cut him once but eight (8) times all over his body even though he cried out begging you for mercy “enough you have already cut me”. You took no heed of his cry and instead continued to chop him all over his body which resulted in his death.
    
18. This was a merciless attack on the deceased not proportionate to the injury he inflicted on your pointer finger which was not life threatening but the injuries you inflicted on the deceased caused him his life. I agree with state counsel that this is a very serious murder case. I would therefore agree with the learned counsel that it falls in category 3 of the Manu Kovi’s case which has a suggested sentencing tariff of 20 – 30 years. But this is only a guide. The court has unfettered jurisdiction by operation of Section 19 of the Criminal Code to impose alternative sentences or penalty depending on the facts and circumstances of each case.
    
19. In your case I take into account certain mitigating factors which appear to be in your favor. Firstly you are a first time offender with no conviction records held against you. Meaning that you have generally been a good citizen prior to this incident. Secondly you surrendered yourself to the police immediately after the incident and cooperated well with police at the time of your arrest and thereafter during your remand at the Correctional Service remand facility. Thirdly you have expressed deep remorse for what you did to the deceased knowing that he was your close relative, a first cousin. Lastly your counsel has submitted for the court to take into account your advanced age, you are now is 57 years old.
    
20. But the aggravating factor is that a life has been lost and cannot be brought back. There were also multiple cuts numbering eight (8) which you inflicted on the deceased’s body which were serious thus resulting in his death. As alluded, these injuries you inflicted on the deceased were not proportionate to the injury he inflicted on you. It was not life threatening injury but in your case, you caused his death.
    
21. These aggravating factors in my view renders the mitigating factors less significant. I am therefore of the view that sentence should be in the lower part of category 3 which 20 years imprisonment.
    
22. I therefore order that:
    
    • (a) You are sentenced to 20 years imprisonment ILL less 3 years and 7 months for time spent in pre-trial custody, leaving a balance of 16 years and 5 months.

`

(b) Four (4) years are suspended on mitigating factors and by reason of your advanced age.

(c) You are to serve the remaining balance of 12 years and 5 months at the Boram Correction Institution.

Sentenced Accordingly
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused