N8541
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.1391 OF 2016

THE STATE

V

BILLY GILBERT BILAGA

Kokopo: Suelip AJ
2020: 3rd, 8th June & 10, 21 July

CRIMINAL LAW - Sentence - Plea - Guilty-Murders - s300(1),(a) of the Criminal Code Act-accused, deceased and 2 others drinking together when an argument erupted and the accused and deceased started fighting- accused hit deceased with a 5x1 timber on the face - deceased fell to the ground and was taken to a1i aid-post where he was pronounced dead- sentence of 14 years partly suspended with conditions.
Cases Cited 
Goli Golu v. State [1979] PNGLR 653 Simon Kama v. State (2001) SC 740 
Manu Kovi v. State (2005) SC 789 
Thress Kumbamong v. State (2008) SC1017 
State v. Tom & Bobi (2009) N3675 
State v. Feter Uratigal CR No.183112016 State v. Kaur Aquila CR No. 10/2017 
The State v. Niaka [2014] N5581 
The State v. Kumbakor & 2 Ors [2014] N5803
The State v. Paise [2015] N5911 
Legislations 
Section 300(l)(a) of the Criminal Code Act 
Counsel 

J Batil, for the State 
JM Ainui, for the Accused 

SENTENCE
 21st July, 2020 

1. SUELIP AJ: On 3 June 2020, Billy Gilbert Bilaga of Volavolo Village in the Balanataman LLG, Rabaul District, was indicted on one count of murder. It is alleged that the offence was committed on 17 April 2016 at Lamarain Village, East Pomio LLG, East New Britain Province. 

2. 	The prisoner appears from custody whilst awaiting trial and pleaded guilty to the charge. 

3.   Parties made their respective submission on sentence on 10 June 2020. 

4.     This is now my decision on sentence. 

Facts 

5.  The State alleges that on 17April 2016 between 7 am and 7:30 am at Lamarain Village in the East Pomio LLG, the accused, the deceased and two others were drinking together in a kitchen. An argument erupted between them about money, and the accused and deceased started fighting. The accused got a 5xl piece of timber from the ground and hit the deceased on his face. The deceased fell down on the ground and was taken to Sango Aid Post where he was pronounced dead. 
	
6. 	The deceased died as a result of severe head injury, which was caused by 
the physical assault. 

7. 	The accused was arrested and charged with the offence of murder pursuant to Section 300(l)(a) of the Criminal Code Act. 

The offence 

8.	Section 300 of the Criminal Code Act provides: - 

300. Murder 
	
(1) 	Subject to the succeeding provisions of this Code, a person who 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; or 
	(b) 	death was caused by means of an act - 
		(i) 	done in the prosecution of an unlawful purpose; and 

		(ii) 	of such a nature as to be likely to endanger human life; or 
			(c) 	if the offender intended to do grievous bodily harm to some person for the purpose of facilitating- 
			(d) 	the commission of a crime other than, a crime specified by a law (including this Code) to be a crime for which a person may only he arrested by virtue of a warrant; or 
			(e) 	the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); 
			(d) 	death was caused by administering any stupefying or overpowering thing for a purposed specified in Paragraph (c); or 
			(I) 	if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c). 

Penalty: Subject to Section 19, imprisonment for life. 

9.	    The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code. The onus is on the prosecution to prove that the offence amounts to murder pursuant to Section 300 of the Criminal Code. 

l 0.    I have read the depositions and I have confirmed the plea of guilty. 

Issue
 
11.	      What is the appropriate sentence? 

Antecedent report 

 12.  The accused was born in 1983 and is 37 years old and comes from Volavolo Village in the Balanataman LLG of Rabaul District. He is married to a lady from Lamarain village and they have five (5) children together. He attends the United Church and occasionally attends church services. 

13.  He comes from a family of eleven (11) which consists of four (4) females and seven (7) males. He is the fifth in the family. His father passed away in 2017 whilst his mother is alive and is 63 years old. 

14.   The accused completed his Primary Education at Tavui No. 1 Primary School in Rabaul District. He then went onto George Brown High School to do his Grade 9 however he did not complete his Grade 9 but left school. 

15.    He was working as a survey assistant at Masarau Oil Plam from 2012- 2016 when he committed the offence and was arrested and detained in custody ever since. 

16.    He is a first-time offender and has no prior convictions. He has been in prison since 18 April 2016 and to date, his pre-sentence term is 4 years, 3 months and 3 days.

Allocutus 

17. The accused apologised to the Holy Trinity and to this Court. He also apologized to the deceased and his family. He said he is sorry to the relatives of the deceased. He said this is his first time to stand before this Court. He has a family with 5 children, and he supports the needs of the family. He said his father is deceased and only his mother is alive. He asked for this Court's mercy to give him a minimum sentence. 

Mitigating factors 

18.	    In his favour, the accused submitted the following:-

	(i) 	he is a f1rst-time offender. 
	(ii) 	he co-operated well with the Police, he voluntarily surrendered and readily made admissions in his Record of Interview, 
(iii)	he had pleaded guilty to committing the offence and thus saving the Court's time and State money In calling in witnesses. 
(iv)	 there was no pre-planning on his part. 
	(v) 	there was de-facto provocation where he and the deceased were involved in a drunken brawl. They were both assaulting each other. 
	(vi) 	he is willing to pay compensation to the family of the deceased in the sum of Kl,000.00 in cash and 400 fathoms of shell money which is equivalent to K2.,000.00, garden food worth K200.00 and a pig worth K500.00. His family members are also willing to assist in the compensation payment. 
(vii) He expressed remorse to the family of the deceased. 

19.	   In the Means Assessment Report, the accused does not have any savings but states that he has a Nasfund contribution of K3,000.00. The accused is willing to pay Kl ,000.00 in cash and 400 fathoms of shell money which is equivalent to K2,000.00, garden food worth K200.00 and a pig worth K500.00 but he asks the Court to give him sufficient time to prepare. 

20.  Also, in that report, the mother of the accused will assist with K5000.00 with K300 worth of garden food plus two pigs cost K500 each total up to K1000 and 200 fathoms of shell money equivalent to Kl000. His elder brother will also assist the accused with K3000, 200 fathoms equivalent to Kl 000 with garden food worth K300 and pig cost K500 whilst his wife will also give K1000 with 100 fathoms of shell money equivalent to K500 plus a pig and food. The family of the accused are willing to provide financial assistance and strongly support the accused if compensation is ordered by the Court. The Village Court Magistrate, Ward Member, Pastor and the Probation Officer will witness the reconciliation and furnish a report back to Court. 
Aggravating factors 

21.      Against him, the aggravating factors are: 

(i) there was an intent to do grievous bodily harm. 
(ii) there was use of a heavy weapon, a 5xl timber. 
	(iii) 	piece of timber was used to inflict severe injury on the deceased, particularly to his head, 
(vi) piece of timber caused the almost immediate death of the deceased. 
	(v) 	there was viciousness in the attack as demonstrated by the manner in which the accused lifted the timber and landed it on the deceased's face/head. 
(vi) A life has been lost and cannot be recovered. 

22.	    The State submitted that, at the time, the deceased was unarmed, and the accused was drunk having consumed alcohol, when he used a timber to hit the deceased. The State also submitted that the Court note that he had absconded bail and was on bench warrant for a year. A Warrant of Arrest was issued on 6 February 2018 and returned on 6 September 2019. That is for a period of 1 year and 7 months. 

Submission on sentence 

23.    Ms Ainui for the accused, submitted the maximum penalty for the offence of murder is life imprisonment however this is subject to Section 19 of Criminal Code for the Court not to impose the maximum penalty but to reserve for the worst type of case as held in Goli Golu v The State [1979] PNGLR 653. 

24.  Counsel for the accused submitted that the sentencing tariff in Manu Kovi v The State (2005) SC789 is a guide and that the present case falls under category 1 and 2 of the Manu Kovi sentencing tariffs for murder where a sentence range of 12-15 years and 16-20 years is appropriate. There was no pre-planning, both the accused and deceased had used some form of weapon which is a knife and a 5xl piece of timber, and there is an absence of strong intent to cause grievous bodily harm. 

25. Counsel further submitted that this Court is not bound by the sentencing tariffs of Manu Kovi by relying on Thress Kumbamong v. State (2008) SC 1017. 

26.   Counsel cited The State v Tom & Bobi (2009] N3675 where the deceased and the two prisoners were drinking alcohol with some other people at a club in Kutubu, An argument arose between the deceased and the prisoner. The deceased had demanded that the prisoner give him some money but the prisoner said that he did not have money as he had spent everything on buying alcohol. The deceased then swore at the prisoner to come and eat his penis. The prisoner was provoked by this and punched the deceased. A fight ensued between them. They were thrown out of the club and the other prisoner joined in and also assaulted the deceased, even though the deceased surrendered and said that he did not want to fight. The deceased fell and died a few minutes later. The deceased died from respiratory failure and broken ribs. They both were convicted after a trial and sentenced to 12 years imprisonment. 

27.   Counsel for the accused also cited CRNo.1831/2016-State v. Peter Uratigal. This is a Kokopo matter which was dealt by the then Susame AJ in 2019 where the prisoner had an argument with his wife and his wife swore at him and ran off. He then grabbed a spade and hit his wife on the head with it. His wife died of head injuries. The prisoner pleaded not guilty and a trial was conducted after evidence was called and a visit to the crime scene, the prisoner was found guilty of killing his wife. He was sentenced to 18 years imprisonment in hard labour. 

28.   Counsel relied further and cited CR No. I 0/2017 State v. Kaur Aquila. This is also another Kokopo matter dealt by the then Susame AJ in 2019 where the prisoner and the deceased were in a de facto relationship. They had just finished from a night out at a club for a fundraising dance in Kokopo. They were dropped off near their home and went to the shop nearby. They then walked home and an argument ensued between the couple. The prisoner then hit the deceased over the head several times. The deceased fell unconscious and was taken to the hospital. The assault resulted in head injuries and her eventual death. The prisoner pleaded not guilty and a trial was conducted, the Court found him guilty after the trial. He was sentenced to 15 years imprisonment in hard labour however the Court suspended 3 years of the head sentence upon the prisoner's payment of compensation to the children of the deceased. 

29.  It is therefore submitted on behalf of the accused that the appropriate sentence range in this case should be 12 to 15 years to be imposed on the accused. 

30.     It is also submitted on behalf of the accused that this is not the worst type of case of murder to warrant the maximum penalty of life imprisonment. It is submitted that the Court should partially suspend his sentence as the mitigating factors far outweigh the aggravating factors and further, this Court order compensation to be paid by the accused. 

31. The State, on the other hand, submitted that 2 recent Supreme Court decisions provide guidelines for sentencing in murder cases. The first of these is Simon Kama v The State (2004) SC 740 and the second is Manu Kovi v The State (supra). The State submitted that the guidelines in Kama and Kovi are not identical but in both decisions the Court highlighted the increase in murder sentences over the years and the need to consider each case on its merits. Having regard to the guidelines provided at page 2 of the judgment in Simon Kama, the State submitted that this case falls within the second category, namely where there is a guilty plea with aggravating factors other than use of firearms and the commission of another serious offence, which would result in a sentencing range of 17 to 30 years. 

32. The State submitted, however, that Manu Kovi, is the more recent decision and therefore submitted on the basis of that case, whilst having regard to the guidelines in Simon Kama. The State referred to the guidelines contained at page 13 of the judgment in Manu Kovi and submitted that as a starting point this case falls within the upper range of the first category (range 12-15 years) and well into the second category murder cases (range 16-20 years). 

33. The State referred to The State v Niaka [2014] N558 where the offender had pleaded guilty to murder. In this case, the offender threw a rock repeatedly at the victim's stomach and she died as a result. The offender was sentenced to 18 years in hard labour. 

34. The State also referred to The State -v- Kumbakor & 2 Ors [2014] N5803, where the third offender, Abel Morgan, had pleaded guilty to murder. In this case the deceased was under the influence of alcohol when he made comments to a woman nearby who called out to her relatives. Her relatives came and assaulted the deceased on two different occasions on his head and chest rendering him unconscious. He later died when taken to the hospital. In this case the offender was one of those who assaulted the deceased. He was sentenced to 13 years as the head sentence and the pre-trial custody period was deducted from it. 

35. Finally, the State referred to The State -v-Paise [2015] N5911, the offender cut off the head of his brother with a bush knife five times. He also cut off one of his fingers and attempted to sell it saying it had power. He was sentenced to 17 years less pre-trial custody period. 

36. The State submitted that there is a strong need for both personal and general deterrence in cases of murder as the offence is becoming more prevalent in the society. 

37. Having regard to the above authorities and the particular circumstances of this case, the State submitted, an appropriate range of sentence is between 13 to 18 years. 

38. The State further submitted that any suspension of the sentence is within the Court's discretion. 

Determining sentence 

39. The issue before the Court is the appropriate sentence for the accused. Whilst Ms Ainui for the accused submitted that the maximum penalty for the offence of murder is life imprisonment however, this is subject to Section 19 of Criminal Code for the Court not to impose the maximum penalty but to reserve for the worst type of case as held in Goli Golu (supra). Counsel submitted that this is not the worst type of case to warrant the maximum penalty of life imprisonment. 

40. Defence submitted that a sentence range of “twelve and fifteen (12-15) years should be imposed on the prisoner" and as this is not the worst type of case of murder to warrant the maximum penalty of life imprisonment, the Court should partially suspend his sentence as the mitigating factors far outweigh the aggravating factors and orders for compensation to be ordered for the accused to pay. 

41. Are the facts of this case so serious that the maximum penalty must be imposed? If not, what is the lesser penalty? This Court also has a very wide discretion to impose a sentence below the maximum penalty under Section 19 of the Code based on proper judicial principles. 

42. In the Pre-Sentence Report dated 8 June 2020, there were several people interviewed and they all say that the accused is a person of good character and assists in all activities in the family and community. They were all shocked to hear that the accused was involved in the killing of the deceased. They also blamed the deceased who had instigated the whole incident which resulted in a fight between the two and the accused was cut on the forehead with a knife and he retaliated and hit the deceased with a piece of timber. 

43. 	The accused's family members are willing to assist the accused in paying 
the compensation to the deceased' s family and therefore ask the Court to be lenient in sentencing the accused. 

44. The author of the Pre-Sentence Report, Mr. Noel Awagalas has assessed that the accused is not a threat to the community but because of the seriousness of the offence, he could be dangerous to others, However, he has considered all the factors and those he had interviewed and recommend that the accused is a suitable candidate for probation with strict conditions to be imposed and compensation to be paid. 

45.   In consideration of the facts and the circumstances of this case with the case precedents cited by both counsels, I am of the view that this is not a worse case and so, I will impose a lesser penalty to the maximum penalty of life imprisonment. 

Application of facts to the law 

46.   The mitigating factors in the accused's favour are that the accused is a first-time offender, pleaded guilty, had no priors, co-operated with police, there was no pre planning, de facto provocation by both the deceased and the accused, he is willing to pay compensation and he showed genuine remorse. The Pre-Sentence Report also states that the accused is a person of good character and assists in all activities in the family and community.

47.   Against him, the aggravating factors should be taken into account are there was an intent to do grievous bodily harm, use of a heavy weapon, namely a 5xl timber which was used to inflict severe injury on the deceased, particularly to his head, and which caused the almost immediate death of the deceased. Further, there was viciousness in the attack as demonstrated by the manner in which the accused lifted the timber and landed it on the deceased's face/head. Finally, a life has been lost and cannot be recovered. 

48.   Whilst the aggravating factors seemed to outweigh the mitigating factors slightly, the State concedes that there is a degree of provocation on the part of the deceased where both the deceased and accused were fighting. 

49 	Having considered all the case precedents referred to by both counsels, 
which I find very helpful, in particular, the cases from this locality, to the particular circumstances of this case, I agree with the defence submission that the appropriate range of sentence is between 12 to 20 years. 

50.     I am therefore satisfied that the appropriate penalty for this accused for the charge of murder is a sentence of 14 years. 

Should all or part of the head sentence be suspended? 

51. Counsel for the prisoner submitted that the Court should partially suspend his sentence as the mitigating factors far outweigh the aggravating factors and orders for compensation to be ordered for the accused to pay. 

52.     On the other hand, the State submitted that the aggravating factors in this case outweigh the mitigating factors and there is a strong need for both personal and general deterrence in cases of murder as the offence is serious and is becoming more prevalent in the society. The State counsel submitted that any suspension is within the Court's discretion. 

53.    The accused had voluntarily surrendered on 18 April 2016 at Masarau Police Station. Since his arrest, he has spent 4 years, 2 months, 1 week and 12 days in custody. Section 3(2) of the Criminal Justice (Sentence) Act which gives this Court the power to deduct pre-sentence custody term from the head sentence. 

54.     The accused absconded bail for a period of 1 year and 7 months and this period will be added to his head sentence of 14 years. 

Orders 

55.      In consideration of all the above factors, I make the following orders;

	(i) 	The accused is sentenced 14 years imprisonment. 
			(ii) 	The period of 1 year and 7 months in which prisoner absconded bail is added to his head sentence making a total of 15 years and 7 months imprisonment. 
			(iii) 	The balance of his pre-sentence term of 3 years, 8 months, 3 weeks and 6 days be deducted from the head sentence. 
(iv)    He shall serve another 8 years in custody at Kerevat, 
		(v) 	The balance of his sentence is suspended, and he will return to his family on the following conditions: - 

(a)	that he pays the sum of K5,000 in cash, K500 in garden food, 3 pigs and 400 fathoms of shell money as compensation to the deceased and his family within 6 months from his release from custody to be witnessed by the Ward Member, Pastor and the Probation Officer in Kokopo. 

(b)	he shall enter into his own recognizance without surety to keep the peace and be of good behaviour during the period of suspension. 

(c)	he shall not change his residential address at Lamaraen Village, VolaVolo, Rabaul, East New Britain Province unless he has given the National Court Registry reasonable notice of his intention to do so and the reason for the proposed change.

(d)	he shall not leave East New Britain Province without the leave of this Court during the period of suspension. 

- 
 (e) 	he must attend his local United Church every Sunday for service and worship and submit to counselling; 
(f)       he shall not consume alcohol or drugs. 

(g) 	if he breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence. 
_________________________________________________________________________
Public Prosecutor: Lawyer for State
Public Solicitor:  Lawyer for Accused