State v Kiaro [2020] PGNC 277; N8610 (30 October 2020)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW – Sentence – Murder - Section 300 (1) (a) Criminal Code -Guilty plea- The victim died from two stab wounds to his right arm and left chest from a confrontation with the prisoner – Stabbing occurred in a village setting – Prisoner and victim are known to each other – Use of offensive weapon – De facto provocation present- first time offender

The prisoner pleaded guilty to one count of murder contrary to s 300(1)(a) of the Criminal Code. The victim died from two stab wounds - one to his right arm and another to his left chest from a confrontation with the prisoner. There was an element of de facto provocation. The prisoner is a first-time offender, pleaded guilty and has had his family home burnt in retaliation and submits for a sentence of 10 years. The state has however submitted that a sentence ranging from 17 to 30 years would be appropriate considering the sentencing range imposed by the Supreme Court.

(1) When deciding on the appropriate sentence the court is required to take into account a number of objectives of sentencing, which include:

(2) The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Although society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient.

(3) The court can impose a sentence depending on the circumstances of this case by invoking its discretion under s 19 of the Criminal Code (Kumbamong v The State (2008) SC1017 followed).

(4) In this particular case for murder on a guilty plea of a youthful offender, killing was not planned, there was an element of de facto provocation, offender was a first time offender, expressed remorse and his family suffered reprisal through loss of family home to be weighed out against commission of the offence by entry into the yard where the victim was having dinner, use of offensive weapon directed at the chest, the prisoner committed the offence in the company of others, prevalence of the offence in the area and family of the deceased did not accept compensation, warrants a higher sentence than that sought by the prisoner but less than that submitted by the State.

(3) A sentence of 13 years in hard labour less period spent in custody is considered appropriate in the circumstances.
Cases Cited:
Papua New Guinea Cases

The following cases are cited in the judgment:

Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510
Goli Golu v The State [1979] PNGLR 653
Kumbamong v State (2008) SC1017
Manu Kovi v The State (2005) SC 789
Nita v State (2020) SC1983
Simon Kama v The State (2004) SC740
State v Damun (2011) N4295
State v Dani [2020] PGNC] 254; N8469 (19 August 2020)
State v Harry Heni & 2 Ors, Cr Nos 487, 278 & 279 of 2009 (unreported judgement)
State v Laiam [2010] PGNC 61; N3995 (22 April 2010)
State v Muturu [2012] PGNC 322; N5163 (28 November 2012)
State v Ngaufu (2011) N4554
State v Namaliu (2020) N8506
State v Paugari (2011) N4438
State v Taria (2014) N5928
State v Young (2008) N3548
State v Wakore (2007) N3222

Deterrence is one of the most frequently used purposes in sentencing under this theory, if the sentence so acts upon the accused as to produce lack of repetition of criminal behaviour, the sentence will have achieved its purpose, namely to promote the peace and safety of the community by discouraging subsequent criminal behaviour of the accused. The other desired effect of a deterrent sentence is to warn others and cause them to refrain from the same criminal activity because if they do not they will be punished in the same way.

The second purpose of sentencing is what may be called the separation of the criminal from the society. This theory of sentencing is considered appropriate in crimes which involve grave risk to the personal peace and safety of the members of the community, such as murder, robbery, rape, etc. Emphasis is placed on the protection of the community rather than the offender.

The third theory of sentencing is that of rehabilitation. The emphasis in this theory is on the offender. The theory behind rehabilitation is that the offender should receive correctional treatment so that when he completes his sentence he becomes a useful member of the community, that is, he will obey the law rather than disobey it. In many of the developed countries, like Japan, special correctional have been built for this purpose. In others they have introduced probation services for releasing the offender into the community under special supervision. In this regard, we are far too behind in developing our institutions and programmes to effectively carry out this purpose of sentencing. Legislation for probation is now under consideration. Until these programmes are developed in this country, many offenders who would be considered under this theory of sentencing will not receive what many other offenders receive in other countries.

The fourth purpose of sentencing is retribution. This theory of sentencing may be referred to as vengeance. This conveys the notion that the person who commits a crime must pay for it, or deserves it. This purpose of sentence is not foreign to the cultures of the people of this country. This is what is normally referred to as payback. This notion grew out of many years of tradition in the village. A person who broke the rules or customs of the village deserved punishment.”

“... sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

“A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. ...

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”

“The agonizing task for the sentencing judge is to evaluate which of these theories of sentencing should be achieved in the particular case he is dealing with. A judge is faced with a dilemma because if he chooses one theory of sentencing he is likely to frustrate the other theories. In some cases, a judge will need to give a balanced consideration to all the theories of sentencing. In others, a judge will want to emphasize or achieve one theory of sentencing more than others in certain classes of offences.”

“On the court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors, both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) and Simbe v The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d) On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence, [that] may warrant a sentence lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons.”

“Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence should be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. In a case of homicide, careful regard must be had to the circumstances of death and the way death was caused: Rex Lialu (supra).”

“51. By authority of the Manu Kovi case the sentencing trend for category 2 types of murders is locked between 16 years and 20 years, but if I were to apply s.19 of the Criminal Code, I would have a discretion to consider a non custodial term and consider a term from life to a term of years imprisonment.

52. In this case I will, with respect go back to s.19(1)(a) of the Criminal Code and to come to an appropriate sentence and I will consider other case precedents on murder cases, and I will consider the circumstances of the case to come to an appropriate sentence.”

“67. Section 19 of the Code makes it clear that, a trial Judge has a wide discretion to impose any punishment from a term of years to life imprisonment. It is worth noting that, the discretion thus vested in the courts is not subject to any guidelines to be set by the Supreme Court or anybody. The discretion is instead left entirely within the discretion of a trial judge. That discretionary power ought to be exercised judicially and according to law and not arbitrarily, vaguely or fancifully. It must be exercised on proper grounds for good reason and not capriciously.”

No	Case and Year Decided	Circumstances of the case	Period of sentence ordered
1.	Nita v State [2020] PGSC 77; SC1983 (7 August 2020)	The appellant pleaded guilty to hitting the deceased, who had been accused of killing Terry Milim by sorcery, with a heavy, dry piece of wood. Terry Milim was the appellant’s father-in-law. The appellant continued to hit the deceased on the head and on other parts of the body while he was on the ground, rendering the deceased unconscious. The appellant then dragged the deceased by the legs in the direction of the haus krai for Terry Milim, eventually dumping the deceased in the middle of a road near the haus krai. The deceased was still alive at that stage. Bystanders came to his aid and he was rushed to Tabubil Hospital, where he died several hours later.	18 years
2.	State v Paugari [2011] PGNC 159; N4438 (7 October 2011)	Found guilty of murder after trial. “It was a finding of the court at the trial that when Laurie Kemuel and the other prisoners met with Johnson Isau, Laurie told Johnson what happened to him. Johnson said they should go back to Ishmael's house to sort out the matter. All the prisoners, including Saina and Johnson and others went to Ismael's house and destroyed his house. Buka, the deceased was fatally wounded during that raid.” (at para 5 of the judgement)	10 years
3.	State v Young [2008] PGNC 212; N3548 (10 September 2008)	Prisoner was a bystander, watching a group of men shouting obscenities. However, he soon got involved. At that time, he was armed with a double edged knife. The prisoner assaulted one of the men. The deceased chased the prisoner, who then used the knife to stab the deceased and one other. The deceased died from the stab wound.	17 years
4.	State v Wakore [2007] PGNC 61; N3222 (16 August 2007)	Guilty plea. There was a dispute between clans in a village after a man was alleged to have committed adultery with another man’s wife. Two clans had a confrontation and in the course of it the offender shot dead the victim.	12 years
5.	State v Laiam [2010] PGNC 61; N3995 (22 April 2010)	The Offender pleaded guilty to murder. He used a knife to stab the victim, a young 20 years old man, once on the chest. This was a culmination of an ongoing uneasy relationship between the offender and the deceased.	15 years
6.	State v Taria [2014] PGNC 293; N5928 (30 October 2014)	Guilty plea. The offender had two wives; the deceased was his second wife. In the late night of the incident he was drunk and unstable at the time. He met the deceased and an argument erupted leading into a fight. The fight got serious, and he beat his wife badly where she sustained fatal injuries to her body. She died as a result of her injuries.	13 years
7.	State v Muturu [2012] PGNC 322; N5163 (28 November 2012)	The deceased was standing in front of a canteen. He was drunk. The deceased called out to the prisoner. When he approached him, an argument erupted between the two of them. In the course of the argument the deceased punched the prisoner he fell down. The deceased walked away leaving the prisoner on the ground. He got up and ran after the deceased. He then stabbed the deceased from behind with a kitchen knife. The knife penetrated the left side of the deceased's chest and pierced the apex or top of his heart. This resulted in the deceased losing a lot of blood from which he died almost immediately. He intended to cause him grievous bodily harm but ended up killing him instead.	13 years with 5 years suspended.
8.	State v Harry Heni & 2 Ors; Cr Nos 487, 278 & 279 of 2009 (unreported case referred to in the judgement of Salika DCJ (as he then was) in State v Paugari)	Trial – murder , prisoner in company of other offenders, armed with knife and pieces of wood attacked deceased, the deceased was initial and main aggressor, deceased sustained stab wounds and 1 proved fatal, no pre-planning, no compensation paid, mob attack, 2 offenders juveniles at time offence was committed, youthful offenders at the time of sentence.	1.Mire Basanu (21 yers old) – 10 years 2.Totona kakana (30 years old) 9 years 3.Tawan Yasaling (16 years old) 8 years 4.Karao Kakanana & Bayawe Eli (16, 17 & 18 years) 7 years 5.John Yowa (15 years) 6 years
9.	State v Dani [2020] PGNC 254; N8469 (19 August 2020)	On 27 August 2019 at Bom village in the Rai Coast District of Madang, the husband and wife prisoners murdered Kuya Masai. The dispute arose over a family plot of land said to be owned by the Prisoners. Upon learning that their newly planted garden produce was destroyed by the deceased. The wife prisoner summoned her husband to come and see what had happened. Upon the two prisoners arriving at the garden, the two brothers fought in which the Prisoner cut his brother with a bush knife which led to his death, due to loss of blood. All along the wife prisoner was encouraging her husband to cut the deceased.	1.Sawa Dani – 18 years; 2.Loreta Sawa – 10 years, with 9 years suspended.

“Dellasalle Kiaro stated that it was on a Tuesday evening and he was walking with Sigu Baduk and Dickler Pasopai outside Mollie Kelemesi’s residence when he heard late Clifford Salusalu called out his name and swore at him three (3) times. He then took a torch and went in and asked everyone sitting underneath the house and no one responded He said they were all sitting down and facing the road where they were walking on and he continued on to ask Mollie Kelemesi and she replied that Clifford swore.. Dellasalle then turned to late Clifford and asked him but without any warning. Clifford slapped him and punched him and they started fighting each other. Dellasalle then pulled out a small kitchen knife shoved it in his left side and late Clifford screamed and said to him ”knife nogat, mi brother blong yu’ and so Dellasalle removed the knife and left the house. He then met up with Sigu Baduk and Sigu got him to his house at 8.30pm and whilst at home, Clifford family came rushing and Dellasalle ran for cover and Clifford’s family set their house on fire.”

“Your Honour, whatever sentence it may be for the sake of justice and social rehabilitation of this accused, may such a sentence is served over a reasonable period of time.”

National Court of Papua New Guinea

State v Kiaro [2020] PGNC 277; N8610 (30 October 2020)