State v Kwaram (No. 2) [2020] PGNC 212; N8424 (22 July 2020)

N8424

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1400 OF 2019

THE STATE

v

BALA KWARAM
(NO.2)
Prisoner

Madang: Geita J
2020: 20^th & 22^nd July

CRIMINAL LAW – Sentence after trial - Wilful Murder s. 299 (1) Criminal Code – Deceased speared on his hips with a 2-meter hunting spear, resulting in death.
CRIMINAL LAW – Sentence – Aggravating factors outweigh mitigating factors – Extenuating factors insignificant – Prevalence and deterrence sentence considered - Prisoner sentenced to 25 years less pre-trial custody period available to him - Wilful Murder – Section 299 (1) Criminal Code.

Cases Cited:

Avia Aihi v The State (No.3) [1982] PNGLR 92
Anna Max Marangi v The State (2002) SC 702
GoliGolu v The State [1979] PNGLR 653
Lawrence Simbe v The State (2005) SC789
Manu Kovi v The State (2005) SC 789
Setep v The State [2001] SC666
St v Vincent Isanda CR 1893/16
The St v Ben Aisaka CR 590/19
The St v Ferdinand Waru CR 545/18
The St v Terry Yagama CR 314/18

Counsel:

Ms Deborah Ambuk, for the State
Mr John Zauya, for the Prisoner

JUDGMENT ON SENTENCE

22^nd July 2020

1. GEITA J: The prisoner was found guilty after trial on 3 July 2020 for the wilful murder of Peter Karo on 8 June 2019 at Avarak village, Bogia District. The offence comes under section 299 (1) Criminal Code and attracts a maximum penalty of death sentence.

Brief Facts

2. The brief facts are these: On Saturday 8 June 2019, as the deceased and four other persons were on their way to a neighbouring village, they were ambushed at Avarak village where the deceased was attacked and speared on his hip. The deceased managed to remove the spear from his side and was rushed to hospital some four hours later but succumbed to his death as a result of the spear wound.

Criminal History

3. No prior convictions have been recorded against your name and I accept that position as presented to me by the Public Prosecutor.

Allocutus

4. In your allocutus or when you were asked if you had anything to say about the punishment that should be considered you said this was your first time to appear before a National Court and you asked for leniency. You further said you assaulted the deceased in self-defence. You apologised to the Court, to the lawyers and to the deceased’s wife and family. You said you were sorry for breaking the law and asked to be considered for probation.

Mitigation Circumstances
5. These factors were considered in favour of you:
1. No prior convictions, first time offender
2. Acted alone
3. Uneducated subsistence farmer
4. Inflicted one blow

5. Some form of bel kol compensation had been paid to the deceased family.

Aggravating Circumstances

6. The aggravating factors are:
   

1. Prevalence of the offence

2. Loss of life

Pre- Sentence Report

7. A pre-sentence report was prepared and submitted on your behalf by Probation Officer Alice Biko dated 13/7/ 2020. Your suitability for probation was not recommended but left to the Court to decide. You are married with two young children. You come from a family of 6 siblings and your parents have since separated. The deceased’s daughter does not want compensation, but rather have you sent to prison for the death of her father. The Probation Officer is of the view that you do not pose any real danger to the community.

Community Attitudes
8. The views of your community were sought through Bobby Atmani, a youth representative from Sirin no.2 village. Your community has spoken very highly of you as a hard-working man and good in your community.

Submissions on Sentence – Defence

9. Defence Lawyer Mr. John Zauya submitted that in light of some extenuating factors and some element of de facto provocation the lower end of category two in the sentencing guidelines for wilful murder in Manu Kovi v The State (2005) SC 789 be considered: Between 15 – 20 years. The case of Anna Max Marangi v The State (2002) SC 702 was submitted in support. In that case some guidelines were set out by the Supreme Court which enabled the Courts to adopt category two sentencing tariff. Mr. Zauya correctly pointed out that the maximum penalty should not be considered in this case but to be imposed only on worst types of cases. (Avia Aihi v The State (No.3) [1982] PNGLR 92; Goli Golu v The State [1979] PNGLR 653 and Setep v The State [2001] SC666.)The case of Lawrence Simbe v The State (2005) SC789 was also relied on by Defence Counsel: That case holds the proposition that every case shall be decided based on its own merits and peculiar circumstances, to which I whole heartedly agree.
Submissions on Sentence - State

10. The Public Prosecutor Mr. Steven Francis submitted that the crime was serious and prevalent in the province and called for a deterrence sentence of 30 years. He submitted that the prisoners aggravating factors outweighed his meagre mitigating factors of being a first-time offender with no prior convictions. The prisoner used a hunting spear to kill his stepfather in the presence of his own mother who was married to the deceased. He referred the court to the following cases in which courts in Madang have sentenced offender up to 30 years and in one instance of wilful murder to life imprisonment. (The St v Terry Yagama CR 314/18- Tamate J; St v Vincent Isanda CR 1893/16-Tamate J; The St v Ferdinand Waru CR 545/18- Tamate J and The St v Ben Aisaka CR 590/19 – Cannings J). Mr Francis submitted that due to the prevalence of wilful murder cases in Madang, courts have imposed longer prison terms, using category 2, sentencing tariffs in the case of Manu Kovi v The State (2005) SC 789. He called for a head sentence of 30 years to be considered by this court.

Appropriate sentence in this case?

11. In deciding the appropriateness of sentence to be imposed to the factual situation before me I have had the benefit of submissions from both lawyers on all relevant issues. I also have had the benefit of a pre-sentence report presented to me including the very helpful cases. For the moment I am satisfied that the prisoner’s aggravating factors outweigh his mitigating factors. I am mindful that he is an uneducated villager and now concerned for his wife and young children. A wrong has been committed and he must be made accountable for that wrong. The prisoner’s plea for extenuating circumstance in my view do not hold water and even if those considerations were taken into account, they would not impact greatly on the outcome in severity of sentence. Based on the cases put before the Court in submissions by State, it is apparent that the high sentences imposed on prisoners is yet to deter offenders. Now considering this case on its own facts and circumstances it is clear to me that the degree of seriousness of the crime committed in this case is very minimal. It follows that this case should attract a lesser sentence, equal to or if not, below those previously ordered by Courts in Madang. Both counsels are commended for your submission which has made my job very easy in deciding on what is the most appropriate sentence in this case.

Sentence

12. My task as trial judge and sentencing judge is exercised judicially based on all evidence before me from both sides. Each case is different with peculiar circumstances and in most situations will ultimately determine the kind of sentence that must be imposed. Due to the foregoing reasons, I consider that the appropriate sentence in respect of this crime to be within the mid-range of 25 years less your pre-trial custody periods available to the prisoner. Any probation or suspended sentence is not appropriate in this case.

Orders accordingly.

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