State v Philemon [2021] PGNC 160; N8977 (3 May 2021)

N8977

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 252 OF 2020

THE STATE

V

YAUSA PHILEMON

Lae: Kangwia J.

2021: 15 March, 14 & 19 April, 03 May

CRIMINAL LAW – Sentence – Murder – Sudden mob attack – Multiple injuries by use of offensive weapons on defenseless person – custodial sentence begging – sentenced 25 years less time spent in custody.

Cases Cited
Manu Kovi v the State [2005] SC 789
Lawrence Simbe v State [1994] PNGLR 88
Goli Golu v the State (1979) SC 172
Simon Kama v the State ( 2004) SC 740
State v Brian Romantien (CR 857/13 Unreported Judgment of 14 October 2014);
the State v Sabiu Wari (2011) Unreported Judgment of Mogish J dated 29 March 2011);
State v Matai [2011] N 4256;
State v Alois Lagu [2011] N3454;
Max Java v the State [2002] SC 701;
Joseph Enn v the State [2004] SC 738;
Kepa Wanenga v the State [2004] SC 742;
Sakarowa Koe v the State [2004] SC 739.

Counsel
P. Matana, for the State
G. Peu, for the Defence

03^rd May 2021

1. KANGWIA J: The prisoner appears for sentencing after he was convicted on his guilty plea to one count of murder pursuant to s 300 of the Criminal Code. The State also invoked s 7 (a) (b) (c) & (d) of the Criminal Code.

2. The facts in brief are that on 24 September 2019 there was a birthday party at the village where Yoapa Dickol (deceased hereon) lived. After the party, a person named as Gabriel who was the prisoner’s cousin, and the deceased escorted two others who were returning to the highway on their way to Lae.

3. On the way one of the persons being escorted and Gabriel entered into a commotion from which Gabriel was injured.

4. The accused and his accomplices heard of it, armed themselves and set upon the deceased who was not part of the assault on Gabriel. They repeatedly shouted, ‘kill him ‘and assaulted him.

5. The deceased was taken to the hospital but died. The Medical Certificate of death revealed that the death was caused from severe head injuries and slash wounds on the head and face.

6. The State alleged that by the actions of the prisoner there was an intention to cause Grievous Bodily Harm to the deceased and charged him with murder.

7. According to the defence the prisoner is 26 is years old, single and 4^th in a family of six siblings. He is educated to grade 9 but left and is a villager. He has no prior convictions.

8. On his allocatus the prisoner said; “I’m a first time offender. I say sorry for breaking the law. I ask for the Court’s mercy. The family paid compensation of K2, 000. 00, 2 pigs and garden food.”

9. On the prisoner’s behalf Ms Peu while conceding that a life was lost, submitted that after considering the extenuating circumstances and the aggravating factors present a sentence between 12 and 20 years was warranted. The Court was referred to several cases similar in nature to the present case, where sentences between 16 and 21 years were imposed as relevant guides.

10. It was further suggested that there was de facto provocation present, and the prisoner reacted on the spur of the moment in the heat of passion in support of his cousin. He has realised his wrong and entered a guilty plea which has saved the Court time and expenses and the sentence range suggested should apply.

11. As for suspension of sentence even though it is discretionary, suspension will promote personal deterrence, rehabilitation, and reformation of the prisoner as he is a young first-time offender.

12. Finally, it was suggested that the prisoner has already spent 01 year, 5 months and two weeks in pretrial custody which should be deducted.

13. On behalf of the State Ms Patana through a written submission sought a sentence between 20 and 25 years in view of the following aggravating factors. There was a loss of life; the offender acted in a group; he was armed with a bush knife; he was under the influence of alcohol; there was no regard for the sanctity of life; it was a vicious attack on vulnerable parts of the body, and the offence was prevalent in our society.

14. The court was referred to sentences in several murder cases, where the Supreme Court dismissed appeals against 20 - year sentences as possible guides.

15. It was submitted that the present case fell under the third category of the sentencing guidelines and tariffs in the case of Manu Kovi v the State [2005] SC 789 which suggested a sentence of 20 to 30 years.

16. The Pre-Sentence Report tendered contains some evidence of compensation being paid by the prisoners relative. However, it also contains confusing answers from the prisoner which led the probation service to be unable to make a suitable recommendation to the Court in sentencing.

DECISION ON SENTENCE

17. The offence of Murder and its penalty are created by s 300 of the Criminal Code of which the relevant parts are in the following terms.

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) if 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

(b) ...

Penalty: Subject to Section 19, imprisonment for life.

The prisoner is liable to be sentenced to life imprisonment.

18. However, the Court has discretion pursuant to s 19 of the Criminal Code to impose other sentences. There is no precise sentencing formula to be followed. It is not a matter of tariffs. It depends on the facts and circumstances of each case and the exercise of discretion in line with the prescribed penalties.

19. The Court is mindful of the guiding principles in sentencing.
20. In determining a sentence in the present case, I adopt what the Supreme Court in Lawrence Simbe v State [1994] PNGLR 88 said:

“Each case of murder must be decided on a case by case basis, but always remembering that the sentence laid down by s. 300 is life imprisonment and the term of years is by virtue of s. 19.”

21. At the outset it is an established principle of law that the maximum prescribed penalty for each offence should be reserved for the worst type of each offence. (See Goli Golu v the State (1979) SC 172)

22. However, it is also accepted that in the exercise of discretion, the more serious the circumstance of the offence, the higher the penalty should be.
23. In the renowned case of Manu Kovi v the State [2005] SC 789, the Supreme Court suggested guidelines and tariffs for all homicides. The Supreme Court has also suggested varying sentences for homicides. The Supreme Court in the case of Simon Kama v the State ( 2004) SC 740 in suggesting its guidelines and tariffs in homicide cases said;

“Where there is a guilty plea with aggravating factors other than the use of a firearm and the commission of another offence a sentence between 17 and 30 years should apply”.

24. Despite that Supreme Court suggestion this Court is still of the view that the guidelines and tariffs suggested for murder cases in Manu Kovi are still relevant as having universal application and are adopted here.

25. In the present case it is accepted as an important mitigating factor that the prisoner, as a first-time offender pleaded guilty to a very serious offence. It has saved the Court time and expenses.

26. It is also accepted that the offence has placed him on the spotlight and makes him look like a hardcore offender with criminal tendency. It was a one-off incident.

27. It is further accepted that substantial compensation in cash and kind was paid by the family of the prisoner to the victim’s relatives. The Supreme Court in the Manu Kovi case described compensation as a special mitigating factor. This suggestion is accepted as a special mitigating factor in sentencing despite compensation not being a valid mitigating factor in law.

28. Even though the offender pleaded guilty early as a first-time offender and the plea that compensation had been paid by his relatives, these factors fall into insignificance when considering the mode and severity of the attack. It was a vicious mob attack. The prisoner in the company of others committed a horrendous crime with the use of a bush knife.

29. The aggravating factor that stands out from the facts and circumstances of this case is that there was complete disregard for the sanctity of life. Life exists only once. After it is gone it cannot return or be replaced.

30. The deceased who was unarmed could not defend himself when he was attacked repeatedly. There was a strong intention to cause grievous bodily harm.
31. Offences involving violence and death are prevalent.

32. Owing to the prevalence of offences involving wanton killings and the overall view of giving effect to the “right to life” entitlement under s35 of the Constitution, deterrence must be a priority consideration in sentencing. A custodial sentence to reflect the public abhorrence for all homicides must also be factored as a necessity in sentencing.

33. Courts in recent times are placing great importance on the sanctity of life and the need to impose adequate sentences on those offenders who caused death or are in any way involved in the loss of a life.

34. In the State v Brian Romantien (CR 857/13 Unreported Judgment of 14 October 2014) the Court said this on the sanctity of life:

“Taking sanctity of life as the paramount consideration... the single common denominator in sentencing for the loss of a life by any homicide should be a custodial sentence. The exercise of the Court’s discretion to impose any non-custodial sentence should be a rarity.”

35. Although those comments were made in a manslaughter case a death was involved and it equally applies to the present case.

36. The Courts have imposed high sentences for murder cases as reflected in the submissions by Ms. Patana. They include the following.

37. In the case of the State v Sabiu Wari (2011) Unreported Judgment of Mogish J dated 29 March 2011) the principles of sanctity and value of life were factored into the sentence imposed.

38. In that case the Court intimated that it was compelled to impose a deterrent sentence to reflect the sanctity of human life and sentenced the prisoner to 18 years over a death caused in a bush knife attack by the prisoner.

39. In the case of Max Java v The State (2002) SC701 the Supreme Court affirmed a sentence of 20 years for Murder on a guilty plea where the prisoner cut the victim on the stomach with a bush knife.

40. In the case of the State v Matai [2011] N 4256 the prisoner who pleaded guilty to cutting his in-law with a bush knife was sentenced to 22 years imprisonment.

41. In the State v Alois Lagu [2011] N4354 on a guilty plea the offender was sentenced to 20 years imprisonment for stabbing the deceased with a pocketknife.

42. The Supreme Court also in the cases of Joseph Enn v the State [2004] SC 738, Kepa Wanenga v the State [2004] SC 742 and Sakarowa Koe v the State [2004] SC 739 dismissed the appeals against a sentence of 20 years each on guilty pleas to a charge of murder.

43. The litany of cases referred to reflect the position of the Courts to treat Murder offences seriously with high sentences.

44. Be that as it may, the Court still has discretion to impose a higher or lower sentence from the cases referred to.

45. Given the facts and circumstances present, this case falls into the 3^rd category of the sentencing guidelines and tariffs suggested in Manu Kovi. In that case a sentence range of 20 and 30 years was suggested.

46. It is the opinion of the Court that a similar custodial sentence as those imposed in the cited cases is appropriate.

47. In the present case a sentence of 30 years fits the crime but would be a crushing sentence for a first-time offender who pleaded guilty early. The head sentence shall be 25 years imprisonment. In the exercise of discretion five years shall be suspended in consideration of the payment of substantial customary compensation as a special mitigating factor. It is further ordered that the period spent in custody awaiting sentence shall be deducted from the remaining 20 years sentence and the prisoner shall serve the balance at CIS Buimo.

Formal Orders

1. Prisoner Yausa Philemon is sentenced to 25 years imprisonment.
2. From the 25 years 05 years is suspended in the exercise of discretion.
3. From the balance of the sentence the period spent in custody awaiting sentence shall be deducted and the prisoner shall serve the balance at CIS Buimo.

______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence