State v Esom [2019] PGNC 264; N8041 (4 October 2019)

N8041

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 828 OF 2018

THE STATE

V

TANO ESOM

Lae: Numapo AJ
2018: 15^th October
2019: 04^th October

CRIMINAL LAW – Particular offence – Murder – Guilty Plea – Sentencing tariffs on murder cases - Sentencing Discretion – Aggravating & Mitigating factors – Extenuating circumstances – Sections 300 & 19 of Criminal Code.

Held:

(i) An appropriate sentence is influenced by various factors such as the gravity of the offence, the circumstances under which the offence was committed, the aggravating factors, mitigating factors and the extenuating circumstances. All these must be properly weighed out.

(ii) In the present case, the special aggravating factor is that the deceased was killed by the prisoner in the course of committing an armed robbery, which calls for stiffer penalty.

(iii) The fact that a dangerous weapon in a form of a gun was used to inflict injuries on the victim showed a strong intent on the part of the prisoner to do GBH.

(iv) Sentencing a youthful offender to life imprisonment would be too crushing on a young person as it won’t accord him the opportunity to reform himself and become a good law-abiding citizen. People deserve a second chance in life and I want to give him that chance.

(v) Sentence imposed by the Court must be aimed at achieving certain specific outcomes such as deterrence, rehabilitation, restitution and retribution.

• (vi) In homicide cases society expects that the offender, irrespective of his age, is incarcerated so that he is no longer a threat to the community.
  
• (vii) Prisoner sentenced to twenty -five (25) years imprisonment less the pre-trial period.
  
• (viii) No suspended sentence.
  

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
State v Bonsu (No.2) [2014] PGNC 312; N5571
State v Gango Nathan Kayak, CR. No. 922 of 2018

State v James Peter Kenneth CR. No. 381 of 2017
State v Lom [2012] PGNC 63; N4725
State v Pinapang [2017] PGNC 16; N6616
State v. Solomon Jack Goimas Cr. No. 396 of 2015 N7485
State v Sony Yauri and Willie Gideon CR. No. 1045 & 1046 of 2017
The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501.
The State v Jackson (2006) N3237
The State v Michael Gend Cr. No. 760/2011. 17^th February, 2014

Counsel:

J. Done, for the State
J. Huekwahin, for the Defence

SENTENCE

04^th October, 2019

1. NUMAPO AJ: This is a decision on sentence. The Prisoner TANOM ESOM was arraigned on one count of Murder pursuant to Section 300 (1) (a) of the Criminal Code and pleaded guilty to the charge and was convicted accordingly.
   
   1. BRIEF FACTS
      
2. The facts to which the prisoner pleaded guilty to are that; on the 02^nd March 2018 between 7pm – 8pm the prisoner and his accomplices were at Nami Gate compound in Wau. They were intoxicated with homebrew and armed with guns, and had gone to Enom Nauri’s (deceased) place to steal gold from him. Whilst in the process of robbing him the accused shot him. Deceased died from massive blood loss due to gunshot wound to the liver.
   
   2. PRE-SENTENCE REPORT (PSR)
      
3. In the Pre-Sentence Report (PSR) the prisoner stated that he was with a group of men and they planned to hold up the deceased at his house and steal his gold and money. They did not intend to kill him. He went ahead to the deceased’s house and signaled the others to follow him. During the hold-up the deceased tried to escape and was shot dead by one of the man in the group named John Siling. He saw the deceased fall to the ground after he was shot and he fled the scene.
   
4. The prisoner was very remorseful and apologized for his actions. He stated that he did not kill the deceased but regretted being part of the group who did. He has no prior convictions and asked the court to be lenient with him. He is not married and is a coffee farmer.
   
   100. SENTENCING GUIDELINES
        
5. The Supreme Court in Manu Kovi v The State (2005) SC 789 (herein after referred to as the Manu Kovi Guidelines) set out some sentencing tariffs on homicide case as follows:
   

CATEGORY	MURDER
Category 1	12 – 15 years
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.
Category 2	16 – 20 years
Trial or Plea Mitigating factors with aggravating factors	No strong intent to do GBH Weapons used Some pre-planning Some element of viciousness.
Category 3	20 – 30 years
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.
Category 4	Life Imprisonment
Worst Case – Trial or Plea Special aggravating factors No extenuating circumstances No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	Pre-meditated attack Brutal killing, in cold blood Killing of innocent, harmless person Killing in the course of committing another serious offence Complete disregard for human life.

4. SENTENCING TREND ON MURDER
   

6. Counsels also referred the Court to some recent case laws on murder cases to show the current sentencing trend and submitted that they be used as a guide as well. I also included other similar cases and set them out here below:
   
1. State v Gango Nathan Kayak, CR. No. 922 of 2018
   
7. Prisoner was sentenced to 20 years imprisonment for stabbing the deceased with a kitchen knife on his chest. The deceased died soon after from a loss of blood.
   
2. State v Lom [2012] PGNC 63; N4725
   
8. The prisoner pleaded guilty to killing his wife by chopping her with a bush knife 4 times in the garden. The wife was accused of having an affair with another man. Prisoner was sentenced to 18 years imprisonment.
   
3. State v Pinapang [2017] PGNC 16; N6616
   
9. The offender pleaded guilty to killing his adopted mother. He had an argument with her and cut her neck with a bushknife. She died instantly from wound inflicted on her. The offender was sentenced to 21 years.
   
4. The State v Bonsu (No.2) [2014] PGNC 312; N5571
   
10. The prisoner was found guilty on one count of Murder. At Ambunti Station in East Sepik Province, the prisoner hit the deceased with a 4x2 piece of timber on the deceased’s head and neck killing him instantly. He was sentenced to 20 years.
    
5. The State v Jackson (2006) N3237
   
11. 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.
    
6. The State v Michael Gend Cr. No. 760/2011. 17^th February, 2014
   
12. 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.
    
13. 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.
    
    7. State v Sony Yauri and Willie Gideon CR. No. 1045 & 1046 of 2017
       
14. The offenders pleaded guilty to one count of Murder. They stabbed the deceased with a knife on his left chest. Both were sentence to 18 years imprisonment.
    
    8. State v James Peter Kenneth CR. No. 381 of 2017
       
15. The prisoner pleaded guilty to killing his wife by stabbing her twice on her chest and twice on her abdomen. He was sentenced to 18 years imprisonment.
    
    5. PRESENT CASE
       
16. In the present case the special aggravating factor is that the deceased was murdered during the commission of another offence namely, an armed robbery. The accused and his accomplices were armed with a dangerous weapon, a gun and had gone to the deceased’s house to hold him up and steal his gold. In the process of committing the armed robbery they shot the deceased. This falls within the category of life imprisonment under the Manu Kovi Guidelines.
    
    6. AGRAVATING FACTORS
       
       • (i) Use of a dangerous weapon, a gun
       • (ii) Deceased was murdered during an armed robbery
       • (iii) Deceased was shot on the lower part of his right chest
       • (iv) Strong desire to cause GBH
       • (v) Prevalence of the offence.
         
    7. MITIGATING FACTORS
       
       • (i) Prisoner pleaded guilty early
       • (ii) Prisoner expressed remorse
       • (iii) Prisoner has no prior conviction
         
    8. ALLOCUTUS
       
17. Prisoner in his allocutus said:
    

“Your Honour, I say sorry to the Court for what I did and I ask the Court to be lenient on me and give me a light sentence. I have three brothers and I am the first born. This is my first time in Court. I say sorry for what I did and I ask for probation or good behaviour bond. I was held in custody for 2 years now. That is all. Thank you”.

1. SENTENCING RANGE
   

18. Mr Done for the State submitted that the aggravating factors outweighs the mitigating factors and for this reason an appropriate sentence should be the one with a punitive effect to reflect the seriousness of the offence and also to serve as a deterrence to the Prisoner himself and other would-be offenders. The use of dangerous weapon to inflict injuries calls for a stiffer penalty. Counsel further submitted that the prevalence of the offence should also influence the type of sentence to be imposed. In the last several years there has been a dramatic increase in the number of homicide cases especially in and around the Wau/Bulolo and Menyamya area. The Court must be firm in punishing the perpetrators of such heinous crime. Counsel submitted that the present case falls within the third category of the Manu Kovi Guidelines and submitted that the Court to impose an imprisonment term of between 20 – 30 years.
    
19. Mr Huekwahin for the Defence submitted that although section 300 (1) of the Criminal Code carries a maximum sentence of life imprisonment for murder, the Court has the discretion under section 19 of the Criminal Code to impose a lesser sentence in place of a maximum sentence. Counsel submitted that this case does not fall into the category of worst case and asked the Court to impose between 12 – 16 years with the head sentence of 10 years imprisonment and also that prisoner’s pre-custody period of 1 year and 2 months be deducted pursuant to section 3 of the Criminal Justice Sentencing Act.
    
    10. APPROPRIATE SENTENCE
        
20. An appropriate sentence is influenced by various factors such as the gravity of the offence, the circumstances under which the offence was committed, the aggravating factors, mitigating factors and the extenuating circumstances. All these must be properly weighed out.
    
21. In the present case, the special aggravating factor is that the deceased was killed by the prisoner in the course of committing an armed robbery which calls for stiffer penalty. The deceased was shot at point blank in cold blood in his own house after he was held up. He was an innocent harmless person. This is a complete disregard for a human life. The circumstances under which the deceased died was very tragic indeed.
    
22. Secondly, the frequency and the prevalence of this type of offence is also a factor for consideration. I agreed with Mr Done that most of the homicide cases reported in Morobe Province in recent years comes from the Wau/Bulolo and Menyamya Districts. The criminal lists before the Courts showed a marked increase in homicide cases from these respective areas. The Court has a duty to impose a punishment that sends out a clear message that it will no longer tolerate such behaviour. The sentence be one with a very strong deterrent effect that will serve as a deterrence not only to the prisoner but also for other like-minded people who might have to think twice before committing such offence.
    
23. Thirdly, the fact that a dangerous weapon in a form of a gun was used to inflict injuries on the victim showed a strong intent on the part of the prisoner to do GBH. I have said on many occasions that the use of an offensive or dangerous weapon to inflict injury raises the seriousness of the offence. See: State v. Solomon Jack Goimas Cr. No. 396 of 2015 N7485.
    
24. Finally, the sentence imposed must be aimed at achieving certain outcomes such as deterrence, rehabilitation and restitution. The common law sentencing principles are well established in this jurisdiction. See: The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501.
    
25. I am of the view that the present case falls under Category 4 of the Manu Kovi Guidelines on Murder which calls for life imprisonment. However, in exercising my discretion under section 19, I have decided to impose a lesser sentence in place of a maximum sentence after having considered the youthful age of the offender. He was 18 years old when he committed the offence. Sentencing a youthful offender to life imprisonment would be too crushing on a young person as it won’t accord him the opportunity to reform himself and become a good law-abiding citizen. People deserve a second chance in life and I want to give him that chance. Furthermore, it is trite law that the maximum penalty should only be reserved for the worst type case. See: Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.
    
26. Having said all that, I am of the view that this is one case that a long custodial sentence is the most appropriate form of punishment.
    
    11. SENTENCING
        
27. I make the following orders:
    
    • (i) I sentenced the Prisoner to Twenty –Five (25) Years imprisonment.
      
    • (ii) I deduct Two (2) Years for the pre-trial custody period pursuant to section 3 of the Criminal Justice Sentencing Act.
      
    • (iii) Prisoner to serve the remaining balance of Twenty-Three (23) Years imprisonment.
      
    • (iv) No suspended sentence.
      

Orders Accordingly

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