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State v Bikeh [2020] PGNC 215; N8456 (6 August 2020)

N8456

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR Nos. 511 & 512 of 2019 and 833 & 834 of 2019.


THE STATE


v


KENUNGA BIKEH


And


BIKEH KENUNGA


Kimbe: Numapo J
2020: 18th June & 06th August


CRIMINAL LAW – Particular offence –One count of Murder s. 300 (1) (a) & one count of GBH s. 319 Criminal Code – Guilty Plea –‘One transaction rule’ - Totality Principles in Sentencing -Sentencing Discretion –Aggravating & Mitigating factors – Extenuating circumstances.


Held:

(i) Generally speaking, a sentence imposed by the Court must match the gravity of the crime.

(ii) The appropriate sentence for vicious attack using offensive weapon with a strong desire to do grievous bodily harm (GBH) is between 20 to 30 years imprisonment – (Re: Manu Kovi Guidelines).

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 Iori Veraga (2005) N2921.
State v Pinapang [2017] PGNC 16; N6616
State v Silingo Abitena & Ors,CR Nos. 972, 973 & 975 of 2017
State v Bonsu (No.2) [2014] PGNC 312; N5571
State v Jackson (2206) N3237
State v Christine Omui, Cr No 384 of 2007

State v Michael Gend Cr. No. 760/2011. 17th February, 2014 State v Sony Yauri and Willie Gideon CR. No. 1045 & 1046 of 2017

State v James Peter Kenneth CR. No. 381 of 2017

State v Jessie Kaia [2018] N7341

State v Martin Konos [2010] N4157

State v Wagi [2008] N3543

State v Robert [2009] N3629

State v Jacky Vutnamur and Kaki Kialo (No 3 (2005) N2919

State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801

State v A Juvenile, “TAA” (2006) N3017
Counsel:


A. Bray, for the State
D. Kari, for the Defence

SENTENCE

6th August 2020


  1. NUMAPO J: This is a decision on sentence. The accuseds KENUNGA BIKEH AND BIKEK KENUNGA both pleaded guilty to one count of Murder contrary to section 300 (1) (a) and one count of Grievous Bodily Harm (GBH) pursuant to section 319 of the Criminal Code and were convicted accordingly. State also invoked section 7 of the Criminal Code.
  1. BRIEF FACTS
  1. The two accuseds are father and son; Bikeh Kenunga is the father and Kenunga Bikeh is his son. The victims; deceased Bomai Bikeh and Thomas Kenunga are brothers of the accused Bikeh Kenunga and uncles to accused Kenunga Bikeh.
  2. The facts to which the prisoners pleaded guilty to were that; on 17 January 2019 at Buvusi Section 1 Block 1392, Kimbe, an argument broke out between the accused persons and victims regarding the Oil Palm Block. The dispute over the block of land has been going on for quite sometimes.
  3. The argument escalated into a fight between the accused persons and the victims. The two accuseds attacked Bomai Kenunga (deceased) and Thomas Kenunga with bush knives inflicting multiple injuries to their bodies. Bomai Kenunga died from massive blood loss from the multiple deep wounds he sustained to his body and Thomas Kenunga suffered serious injuries to his head and face.
  1. AGRAVATING FACTORS
  1. MITIGATING FACTORS
  1. APPROPRIATE SENTENCE
  1. Generally speaking, a sentence imposed by the Court must match the gravity of the crime. Each case is determined on its own peculiar facts and circumstances being; the aggravating and mitigating factors, the extenuating circumstances and the prevalence of the offence. A number of victims attacked and the type of injuries sustained are also factors for consideration. All these have to be properly weighed up and balanced out in deciding the appropriate sentence. See: State v Iori Veraga (2005) N2921. It is trite law however, that the maximum penalty is reserved for the worst type offence as enunciated in the case of Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.
  1. SENTENCING GUIDELINES
  1. Counsels submitted that the Court be guided by the sentencing guidelines on Murder set in the infamous case of Manu Kovi v The State (2005) SC 789(herein after referred to as the Manu Kovi Guidelines). The guidelines is set out here below:
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.

  1. ALLOCUTUS
  1. In their respective allocutus, the prisoners told the Court the following:

Bikeh Kenunga:


“I apologize to the victim’s families and also our neighbours. I also apologize to the Court and the lawyers. This is my first time in court. That is all.”


Kenunga Bikeh:


“I apologize to the families of the victims and also apologize to the Court. This is my first time in court. I say sorry and ask the court to have mercy on me. I ask the Court to put me on probation. That is all.”


  1. SENTENCING TREND ON MURDER
  1. A number of case laws were cited by both Counsels in their respective submissions on sentence to show the current trend on sentencing for Murder cases and submitted that the court be guided by them for purposes of consistency and parity on sentencing. The sentencing tariffs of Manu Kovi Guidelines were reflected in many of these case laws. I referred to them below:
  2. State v Pinapang [2017] PGNC 16; N6616
  3. 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 Silingo Abitena & Ors, CR Nos. 972, 973 & 975 of 2017
  5. The offenders pleaded guilty to one count of Murder. They attacked the deceased with bush knives and axes. The deceased died from the injuries inflicted on his body. The offenders were sentenced to 18 years, 12 years and 15 years respectively.
  6. The State v Bonsu (No.2) [2014] PGNC 312; N5571
  7. 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.
  8. The State v Jackson (2206) N3237
  9. 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.
  10. The State v Christine Omui, Cr No 384 of 2007
  11. The prisoner stabbed the deceased with a knife following an argument. The deceased was pregnant when she was stabbed. There was a de facto provocation in that the deceased mocked the prisoner that she was old and cannot find a husband.
  12. The prisoner pleaded guilty and sentenced to 16 years imprisonment.
  13. The State v Michael Gend Cr. No. 760/2011. 17th February, 2014
  14. 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.
  15. 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.
    1. State v Sony Yauri and Willie Gideon CR. No. 1045 & 1046 of 2017
  16. 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.
    1. State v James Peter Kenneth CR. No. 381 of 2017
  17. 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.
  1. SENTENCING TREND ON GBH
  1. A number of precedent case laws were cited to provide some guidance on the type of sentence to be imposed for GBH cases. I refer to some of them here below:
    1. The State v Jessie Kaia [2018] N7341
  2. Prisoner was a policeman and was found guilty of causing grievous bodily harm to two victims. The attack started in the police vehicle and later continued at the police station. Both victims sustained serious injuries to their bodies some of which were permanent. Prisoner was sentenced to 3 years each on each count to be served concurrently. Court ordered partial suspension of sentence if compensation is paid to the two victims.
  3. The State v Martin Konos [2010] N4157
  4. The prisoner was sentenced to 3 years IHL less the pre-trial custody period with the balance to be served in custody. The offender pleaded guilty to doing grievous bodily harm to his nephew by attacking him with a piece of timber fracturing his knee and also other minor injuries.
  5. The State v Wagi [2008] N3543
  6. Prisoner pleaded guilty to having slashed the forehead of the victim with a bushknife because of the victim’s failure to pay a court-ordered compensation to the prisoner. The injuries were quite serious and could have been fatal. The victim suffered some permanent injuries as a result. He was sentenced to 4 years.
  7. State v Robert [2009] N3629
  8. Prisoner pleaded guilty to cutting his brother with a bushknife inflicting a deep wound. He showed remorse and was a first time offender. He was sentenced to 3 years, 6 months less the pre-trial custody period.
  1. PRESENT CASE
  1. The facts in the present case showed that this was a pre-planned and deliberate attack with a strong desire to do grievous bodily harm (GBH) which ultimately resulted in the death of one of the victims, BomaiBikeh. Offensive weapons namely, bushk nives and slingshots were used in the attack. The deceased received deep cuts to his body and suffered multiple deep wounds to his head, chest and neck resulting in a massive loss of blood that led to his demise. The other victim Thomas Kenunga received deep wounds to his head and face. Some of the injuries have become permanent affecting the full use of his limbs and other parts of his body. The photos of the victims presented to the court showed both victims suffered from horrific wounds. It was a vicious attack, no doubt.
  2. Mr. Kari for the Defence submitted that this was not a worst type offence to attract the maximum sentence prescribed by law on Murder and urged the Court to adopt the approach taken in Goli Golu and Avia Aihi (supra). Counsel further submitted that the present case falls under category 2 of the Manu KoviGuidelines and the prisoners should be sentenced to a term of between 16- 20 years’ imprisonment. As for the GBH, Counsel submitted for a head sentence of 6 years. Counsel further submitted that under the ‘one transaction rule’, the sentences should be made concurrent.
  3. Mr. Bray for the State submitted that given the serious aggravating circumstances the appropriate sentence to impose on the prisoners should be between 18-22 years for Murder and 4-6 years for GBH. The sentences should be made cumulative. Counsel further submitted that to decide on whether the sentences should be cumulative or concurrent it must apply the principle of ‘one transaction rule’ and the ‘totality principle’ that was adequately discussed in the case of State v Jacky Vutnamur and Kaki Kialo (No 3 (2005) N2919; State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801; and State v A Juvenile, “TAA” (2006) N3017.
  4. The Principles are:
  5. Mr. Bray submitted that although the two offences were committed out of the same set of facts there were two separate victims from this attack. The sentence should therefore, be cumulative.
  1. PRE-SENTENCE REPORT (PSR)
  1. The PSR generally is not in favour of the prisoners and have not recommended probation or good behaviour bond for them. This was a family feud that led to the death of one their family members and the other with serious injuries to his body. The families of the deceased and the other victim Thomas Kenunga wanted both prisoners to be incarcerated to avoid further problems in the future. They would not accept any compensation as the crime was committed with their own family and there is no one to compensate.
  1. DECISION
  1. Having considered the factual circumstances of the case, I am of the view that this case falls under category 3 of the Manu Kovi Guidelines on Murder which carries an imprisonment term of between 20-30 years’ imprisonment. With respect to the second count on GBH, a sentence of between 4 - 6 years would, in the circumstances, be appropriate. Applying the one transaction rule and the totality principle, I considered it just and appropriate that the term of imprisonment be served concurrently so that the total sentence is not crushing on the prisoners.
  1. SENTENCING
  1. I make the following Orders:

Count 1 - Murder


  1. I sentenced the Prisoners each and severally to Twenty (20) years IHL.

Count 2 – GBH


  1. I sentenced the Prisoners each and severally to Four (4) years IHL.

Further Orders


  1. I deduct One (1) year and Six (6) months for the pre-trial custody period pursuant to Section 3 (2) of the Criminal Justice (Sentence) Act 1986.
  2. Prisoners to serve the remaining balance of Eighteen (18) years and Six (6) months IHL.
  3. I further order that the sentences to be served concurrently.
  4. No suspended sentence.

Orders Accordingly


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


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