State v Robert [2021] PGNC 161; N9002 (20 May 2021)

N9002

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 634 OF 2020

THE STATE

V

MATHEW ROBERT

Bialla: Batari J
2021: 19^th & 20^th May

CRIMINAL LAW – Sentence – murder – plea – accused attacked brother with axe resulting in death over father’s property – murder killings –seriousness of – killing of relative – domestic nature of – mitigation – accused acted on history of animosity – provocation – sentence of 18 years appropriate.

The prisoner attacked his brother with an axe resulting in death. He pleaded guilty. On sentence, the Court held:

1. In the exercise of its discretion, the sentencing authority must be cautious to impose a just and appropriate punishment, having proper regard to all the circumstances of the case, in keeping with the principle that each killing is different and hence, each case must be sentenced on its own facts and the way the killing was carried out: Lawrence Simbe v The State [1994] PNGLR 38. [para 5, 6]
   
2. A plea of guilty to a crime of violence like murder by itself may not warrant any credit unless supported by existence of such other factors like good background, restitution, old age, young age, etc., remorse and contrition and early guilty plea: John Elipa Kalabus v The State [1988] PNGLR 193 [para 17, 18]
   
3. The prisoner acted under some degree of anxiety and provocation in extenuating circumstances which sufficiently explains his acts and lessens the degree of his culpability. [para 23 –24]
   
4. Causing the death of a relative is a mitigating factor because the loss is a self-inflicting punishment; Kesino Apo v The State [1988] PNGLR 182 and with the domestic killing factor, for the same considerations as that of killing a relative, are two of the many factors that will be held in favour of the prisoner against the seriousness of the killing and the severity of his conduct, but there is no hard and fast rule that a greatly reduced sentence is mandatory. [para 25 – 29]
   

Cases Cited

Avia Aihi v The State (No.2) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
John Elipa Kalabus v The State [1988] PNGLR 193
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC789
Rex Lialu v The State [1990] PNGRL 487
Simon Kama v The State (2004) SC740
The State v Paul Kalu (2011) N5270
Ure Hane v The State [1984] PNGLR 105

Counsel

Mr. C. Sambua, for the State,
Mr. B. Takua, for the Accused

20^th May, 2021

1. BATARI J: The prisoner, Mathew Robert pleaded yesterday to one count of murder. He unlawfully killed his elder brother. Today he appears in Court again for the Court to complete the sentencing process.
   

Background

2. Mathew and the deceased, Philip Robert were biological brothers, originally of Yangoru, East Sepik Province. For some years, the two brothers had been quarrelling over their father’s oil palm block at Tiauru Settlement, Bialla, WNB Province. On the night of 20 November 2019 Philip was sitting with others at Banana Block, Bialla town when Mathew approached from the back and struck him on his head with an axe. Mathew axed Philip the second time on the leg after Philip fell to the ground.
   
3. A medical report compiled by a Dr Nuli showed the cause of death as hypovolaemic shock due to multiple wounds consisting of:
   
   • fractured temporal skull,
   • left leg laceration involving the tibia fibula (calf bone).
     

The offence of murder

4. This unlawful killing arose from an intention to cause grievous bodily harm, a crime of murder pursuant to s. 300 (1)(a) of the Criminal Code. The maximum penalty is life imprisonment. This is not mandatory because of the sentencing discretions of the Court preserved under s.19 of the Code.
   

Sentencing guides

5. In the exercise of its discretion, the sentencing authority must be cautious to impose the punishment that is not inordinately low or manifestly excessive. The final sentence ought to be just and appropriate, having proper regard to all the circumstances of the case. This necessarily entails apposite balancing of all relevant facts both apparent and latent from the face of the records, the interests of the State and the public it represents, the personal circumstances of the individual offender and the relativity of the seriousness of the offence with the other degrees of that offence.
   
6. It is trite, that not every case will attract the maximum sentence prescribed by law, which is usually reserved for the worst type of case. In other cases a term of years may be warranted. The law in vesting that discretionary power in the Court, recognises the fact that each killing is different and hence, each case must be sentenced on its own facts and the way the killing was carried out: Lawrence Simbe v The State [1994] PNGLR 38. See also, Rex Lialu v The State [1990] PNGRL 487; Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.2) [1982] PNGLR 92; Ure Hane v The State [1984] PNGLR 105; John Elipa Kalabus v The State [1988] PNGLR 193; Simon Kama v The State (2004) SC740; Manu Kovi v The State (2005) SC789.
   
7. The sentencing task of this Court is assisted with reliance on those decided cases. From those principles sentencing ranges are suggested in, Lawrence Simbe v The State; Manu Kovi v The State and Simon Kama v The State. The latter case authority stated:
   
   1. Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;
   2. 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;
   100. 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;
   4. On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;
   5. 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;
   6. 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.
      
8. The often-cited case of, Manu Kovi v The State suggested, that murder convictions may be put in four categories of increasing seriousness, as:
   
   1. In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors.
   2. In a contested or uncontested case, with mitigating factors and aggravating factors, a sentence of 16-20 years imprisonment.
   100. In a contested or uncontested case, with mitigating factors and aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20-30 years.
   4. In a contested or uncontested case, the maximum of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons, substances, rendered execution style killings, killings in full view of the public in that for the safety and lives of others etc. These cases where there are no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime”
      
9. The Court in Kama v The State made it clear, that:
   

“.... these 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.”

10. I think the rider, “for very good reasons” connotes the discretionary power of the Court to impose a term of years or the maximum penalty commensurate with the feel of the case, the existence of exceptional mitigating factors or serious aggravating factors.
    

CONSIDERATIONS: Seriousness of offence

11. This case warrants a stern penalty to meet the high degree of gravity shown on the facts. When Mathew set out to attack Philip, his primary intention was to cause him serious grievous bodily harm. The resultant sudden death meant Mathew literally chopped Philip to death. His conduct was appalling. It exhibited a strong desire to cause grievous bodily harm.
    
12. The degree of viciousness with which the prisoner carried out his uncaring and ruthless attack against a defenceless victim is seen in the extent of the injuries inflicted. It was a violent cowardly attack no reasonable thinking person can fully comprehend. Philip was attacked in his leisure without warning. He was unarmed and had his back to the prisoner, least expecting his brother to carry on with their daytime fight into the night. He could not have possibly defended himself in the sudden vicious attack.
    
13. Every death, whether intentional, accidental or negligence is always a very serious matter whenever it occurs. It is despised by law abiding persons because of the violence involved and the sudden termination of life that follows. Unlawful killing is loathed because of the serious breach of the constitutional protection of life.
    
14. The Constitution preserves the sanctity of the God-given life by guaranteeing every man, woman, and child the right to life that is universally enjoyed by the humankind. No-one has the right to prematurely terminate another person’s right to live his or her life fully. It is also relevant to observe, that once lost; life can never be retrieved, replaced, or substituted.
    
15. I have expressed those sentiments to underline the seriousness of Mathew’s conduct. He deliberately set out armed with an axe, to hunt down his own brother. It was the least of his concern whether Philip was expecting the attack or not. The only “wrong” his brother had done him was the ongoing animosity and fights between them. They had earlier in the day exchanged heated arguments. Mathew had harboured his anger into the night and ended it with a dramatic public slaughter of his brother.
    

Prisoner’s Personal circumstances, Mitigating factors

Guilty Plea

16. A plea of guilty will usually be reflected in the final outcome of the sentence imposed. However, the assessment is not the same in serious cases of wilful murder, murder, violent rape or violent armed robbery. A plea of guilty by itself may not warrant any credit. Existence of such factors like good background, restitution, old age, young age, etc., remorse and contrition may add to the plea and thus a cause for some discount on sentence: John Elipa Kalabus v The State [1988] PNGLR 193.
    
17. Where a plea is to be given weight in any of those serious cases outlined, it is my view that the genuineness of the plea and how soon a plea is taken after commission of the offence or committal is a relevant consideration. In The State v Paul Kalu (2011) N5270 it was stated:
    

“The significance of an early plea is the opportunity the prisoner would have missed in having to serve the penalty early. Besides, a plea at the earliest opportunity adds to consistency of the offender’s mitigating behaviour and penitence since the commission of the offence. It has been long recognised that a guilty plea may demonstrate and support remorse and contrition. See, Public Prosecutor v Tom Ake [1978] PNGLR, 469; Kalabus v The State [1988] PNGLR 193.”

18. Other factors that may support the guilty plea will invariably come from the circumstances of the offence and conduct of the prisoner. Some will be apparent, some latent. I will refer to some of those factors.
    

Remorse

19. When asked if he has anything to say on sentence, the prisoner expressed grievance over unresolved enmity with his brother. He was also remorseful over his conduct. I am satisfied, his grievance and remorse were not a routine idiom for want of anything else to say, on allocutus.
    
20. Mathew’s conduct immediately following the killing showed him coming to grips with the magnitude of his crime. I accept his expression of remorse as genuine. I believe he has done some soul searching and that he is genuinely repentant and contrite. His co-operation with the police and early plea of guilty is indicative of remorsefulness and contrition. To his credit also, he has saved the State time and expenses to conduct a trial.
    

Personal Circumstances

21. The prisoner’s personal background is as per the Police Antecedent Report. Mr. Takua also added some useful submissions. Suffice to note he is a first-time offender at 31 years of age. He is married with two children. Both the prisoner and the deceased appear to be still, in their adult lives, reliant on their father’s oil palm block for cash earnings. There is little else known or submitted from his background to be relied on for sentence.
    

Extenuating circumstance surrounding the killing

22. This killing sadly has its origin in a feud between two siblings over their father’s property. One may not fully understand the intense hate between them. But the use of violence is on record. In 2015, Philip attacked and caused Mathew serious bodily injuries resulting in hospitalisation. Mathew laid a complaint with Police in vain as police took no action. He had since felt aggrieved when seemingly let down by the justice system. The enmity between the brothers continued unabated to the time of the killing. It is clear, the intense rivalry motived the killing. It is possibly true to say, one brother dying at the hands of the other was long-time coming.
    
23. In short, the prisoner’s violent act was fuelled by animosity which remained unsolved between him and his brother to the day of the incident when a daytime confrontation led to the night killing. The prisoner acted under some degree of anxiety and provocation in extenuating circumstances which sufficiently explains his acts and lessens the degree of his culpability.
    

Killing of a relative

24. The prisoner killed his own brother. Causing the death of a relative may be a mitigating factor because the loss is a self-inflicting punishment. In Kesino Apo v The State [1988] PNGLR 182 the Supreme Court held:

“The traditional self-punitive aspects relating to the killing of a relative are matters which may be taken into account on sentencing.”

25. The appellant in that case had appealed his sentence of six years for killing his cousin brother. The Court held that the trial judge erred in holding against the appellant, the killing of a relative was not in his favour. The observations by his Honour Kapi DCJ (as he then was) is pertinent. His Honour said, the killing of a person in Papuan New Guinea, whether a relative or an enemy, has special significance where a person other than a relative is killed. In the case of killing a relative, his Honour said at p183:
    

“In a sense, a killing of a relative is self-inflicting in that, a killer may lose a warrior, worker or contributor to bride price or even a helper. This may be regarded as a punitive aspect of the killing which he has brought upon himself. It should not be taken into account as a factor against him but in his favour. The trial judge was wrong in holding this against the appellant.”

26. His Honour Woods J added that a killing within the family will usually mean, the perpetrator will suffer shame and the other burdens for the rest of his life for the killing of a relative and therefore a long-term of imprisonment is not really necessary or appropriate as a punishment. (p 184)
    
27. And in the words of his Honour, Los J at p. 185:

“The sentencing judge while applying numerous factors in favour of the appellant made an error in applying against the appellant certain factors which should have been applied otherwise. The apparent one relates to the relationship between the appellant and the deceased. The appellant was a fool. But apart from undergoing the punishment imposed by the court, he would be suffering for the rest of his life from self-imposed punishment. The self-imposed punishment is that he had lost a cousin brother whose assistance he would need in difficult times. While there is therefore a need for general deterrence, in terms of personal punishment, he would be suffering twice.”

28. The emphasis on the “killing of a relative” factor is to demonstrate its relevance to this case. The killing here was over a family affair in a domestic setting. A domestic killing, for the same considerations as that of killing a relative also mitigates the prisoner’s conduct. There is however, no hard and fast rule that a greatly reduced sentence is mandatory where the killing involved a relative in a domestic setting. These are two of the many factors that will be held in favour of the prisoner against the seriousness of the killing and the severity of his conduct.
    

Summary of factors for and against the prisoner

29. The prisoner has sufficient mitigating factors as follows:
    

• Plea of guilty.
• Cooperation with police with early admissions
• Expression of remorse
• Background with no prior conviction
• Extenuating circumstances
• Domestic killing of his biological brother
  

30. His crime and conduct is aggravated by the following factors:
    

• Strong intention to cause grievous bodily harm
• Direct brutal killing
• Use of weapon
• Attacked the victim with an axe
• Killing in nature of public execution.
• Killing of victim in surprise attacked.
  

Sentence of the Court

31. This case falls into the second category of Kama v The State where a sentencing range of 17 to 30 years is suggested for a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence. Manu Kovi v The State in the second and third category, suggested terms of 16 to 20 years and 20 to 30 years respectively.
    
32. The circumstances of the killing here may also fall into the category of cases with mitigating factors and aggravating factors and special mitigating factors which weight is reduced or rendered insignificant by the gravity of the offence as suggested in Manu Kovi v The State.
    
33. I am inclined to conclude that this case calls for a term of imprisonment within the range of 17 to 20 years. This is because in my view, it is not the worst type of killing when all the facts for and against the prisoner are considered and taken into account.
    
34. Mathew Robert is convicted and sentenced to 18 years with hard labour. This term is reduced by the pre-trial period of 16 months and 10 days. The effective sentence to serve is 16 years and 7 months and 20 days.
    

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Offender