State v Bakamini [2021] PGNC 275; N8983 (26 July 2021)

N8983

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 428 OF 2021

THE STATE

v

SAMUEL BAKAMINI

Lae: Kangwia J.

2021: 12^th May & 26^th July

CRIMINAL LAW – Murder – vengeance attack – complete disregard for life - several attacks with knife harbored strong desire to cause grievous bodily harm – no de facto provocation present - guilty plea as first-time offender- substantial compensation paid treated as special mitigating factor – sentenced to 25 years with deductions.

Cases Cited:

Manu Kovi v the State (2005) SC789
Goli Golu v the State [1979] PNGLR 653
Ure Hane v the State [1984] PNGLR 105
State –v- Polin Pochalou Lopai [1988-89] PNGLR 48
Simon Kama –v- the State (2004) SC740
State –v- Laura (NO. 2) [1988-89] PNGLR 98
State v Tom Keroi Gurua, David Laiam Bawai & Joseph Nimagi (2002) N2312 Max Java v the State (2002) SC701
Joseph Enn v the State [2004] SC738
Kepa Wanenga v the State [2004] SC742
Sakarowa Koe v the State [2004] SC739
State v Jacob Aku Matai [2011] N4256
State v Alois Legu (2011) N4354
State v Dellasalle Kiaro (2018) N7432

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

26^th July, 2021

1. KANGWIA J: The prisoner appears for sentence. On arraignment he pleaded guilty to the murder of John Kokolak. Murder is an offence under s.300 (1) of the Criminal Code Act (CCA).

2. The murder arose in the following circumstance. The deceased was involved in an earlier scuffle in which the prisoner was injured. That matter was settled.

3. On 27 June 2020 while the deceased was walking on the road the prisoner approached and while referring to a scar on his body, attacked the deceased with a knife.

4. The deceased warded off the attack with his bush knife and tried to run away. Under the urging of bystanders to kill the deceased, the prisoner caught up with the deceased and stabbed him. The autopsy report identified two penetrating stab wounds to both sides of the chest. The cause of death was determined as haemothorax due to penetrating stab wounds.

5. The prisoner is 27 years old, married and a villager. He has no record of any prior conviction.

6. On his allocutus the prisoner said, “I did not commit the offence without provocation and in Court. I ask for mercy of the Court”.

Submissions

7. On the offender’s behalf Ms Peu through a written submission highlighted the basic principles in sentencing and cited various cases where sentences imposed for murder ranged from 12 to 22 years. It was then submitted that the present case fell into the second category of the sentencing guidelines in the case of Manu Kovi v The state (2005) 789 case which suggested a sentence of 16 to 20 years. Despite that it was submitted that a sentence of 10 to 15 years was appropriate.

8. While conceding that a knife was used in the attack and a life was lost, it was submitted that the offender pleaded guilty which saved time and expenses. He was a first-time offender and his family had paid K10,000. 00 as compensation. It was also submitted that there was de facto provocation.

9. On behalf of the State Ms Patana sought a sentence of 20 to 30 years to reflect punishment and for deterrent purposes.

10. The offender intended to cause grievous bodily harm. The deceased who was armed walked away after fending off the attack, but the offender caught up with him and cut him twice rupturing the lungs and once on the hand.

11. There was premature termination of a life in breach of the right to life pursuant to s 35 of the Constitution. There was complete disregard for human life. The attack was vicious on vulnerable parts of the body. A dangerous weapon was used.

12. The court was also referred to the sentencing guidelines and tariffs in Manu Kovi and further cited other cases as possible guides in sentencing.

13. The pre-sentence report suggested that it could not make a recommendation without any input from the deceased line who failed to attend upon. The report also showed through interviews that the relatives of the prisoner had paid compensation of K10, 000. 00. It was left to the discretion of the Court .

The law
14. Murder is an offence under s 300 of the Criminal Code. It prescribes a maximum penalty of life imprisonment.

15. The relevant parts are in the following terms:

300. Murder

(1) Subject to the succeeding provisions of this code, a person who kills

another 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;

Penalty: Subject to s. 19, imprisonment for life.

16. Life imprisonment is subject to section 19 of the CCA and the sentencing discretion of the Court. As sentencing is discretionary, other sentences may be imposed.

17. The established principle of law is that the maximum prescribed penalty is reserved for the most serious instances of the offence committed. (See Goli Golu v the State [1979] PNGLR 653 and Ure Hane v the State [1984] PNGLR 105.)

18. The sentencing principle is not a complete bar to the imposition of the maximum prescribed penalty. It can be imposed where the circumstances warranted the maximum prescribed penalty.

19. In the case of The State –v- Polin Pochalou Lopai [1988-89] PNGLR 48 His Honor Bredmeyer, J. while discussing sentencing principles for a manslaughter case said:

“Every form of punishment takes into account the intention behind the act or omission and the consequences, both the seriousness of the intention and the seriousness of the consequences. . . with consequences the more serious the consequence the greater the punishment”.

20. Where the consequence of a homicide is death, a sentence commensurate with death including the death sentence for willful murder can be imposed.

21. The Supreme Court in Simon Kama –v- the State (2004) SC 740 suggested variations to the sentencing guidelines in the State –v- Laura (NO. 2) [1988-89] PNGLR 98 for murder cases with six categories of sentences with increased tariffs.

22. The first three categories covered sentences for guilty pleas while the last three covered not guilty pleas. Those guidelines seem to encroach upon the sentencing discretion of the Court by confining categories of offences to specific instances of crimes committed.

23. In the oft cited case of Manu Kovi v the State (2005) SC 789 the Supreme Court revisited the sentencing guidelines for all homicides.

24. The suggestions for Murder in Laura (No 2) case were also considered and the Court suggested guidelines with increases to the tariffs starting at 12 years to life imprisonment under four broad categories.

25. Even though the Supreme Court in both Simon Kama (supra) and Manu Kovi (supra) suggested increases in the tariffs for Murder, I am inclined towards the guidelines and tariffs in Manu Kovi.
26. Its guidelines are good law being broad based, more recent, having a universal application and are suitable for the present time.

27. The Supreme Court has on appeals against sentences for murder, affirmed high sentence imposed. The following cases attest to that.

28. In the case of the State v Tom Keroi Gurua, David Laiam Bawai & Joseph Nimagi (2002) N2312 the offenders who were convicted after a trial for the murder of a schoolteacher were sentenced to 50 years each and 20 years for Joseph Nimagi. Upon appeal against sentence the Supreme Court dismissed the appeal saying the sentence should have been life imprisonment.

29. 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.

30. 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 their appeals against a sentence of 20 years each on guilty pleas to charges of murder. They involved attacks with offensive weapons.

31. The sentencing trend of the courts have increased dramatically since increases were suggested in Simon Kama and Manu Kovi.

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

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

34. In the case of the State v Dellasalle Kiaro (2018) N7432 the prisoner who attacked and stabbed the deceased several times for swearing at him was sentenced to 13 years.
35. The cases referred to and those cited by counsels identifies the position of the Courts and the sentencing trend employed for murder. The present case shall not be an exception

Decision

36. The present case started after a scar on the offender’s body was shown to the deceased before the attack. The assertion was that the scar was caused from an earlier injury the deceased inflicted on the offender. Out of the earlier incident, the deceased offered K50. 00 and a live chicken which were accepted out of fear, after the deceased purportedly engaged a former convict to threaten him.

37. The offender alleged that there were no formal apologies from the now deceased.

38. Despite that assertion, I am of the view that upon his acceptance of the compensation even if it was under duress, the matter was deemed closed. From the day the prisoner got injured to the day the deceased was murdered there was ample time for the prisoner’s passion to cool. However, it is apparent that there was no cooling of passion. He was further spurred on by bystanders.

39. There seems to exist another underlying reason for the attack. According to the Probation Report the families of the deceased and the offender held grudges against each other over land. Without delving into that issue, it is deemed that de facto provocation is not present.

40. This case falls into the 3rd category of the Manu Kovi guideline which suggested a sentence of 20 to 30 years imprisonment. The present case involved a vicious attack with a bush knife. There was a strong desire to do grievous bodily harm.

41. It is considered that this case is similar in nature to the Lagu case referred to earlier where a sentence of 20 years was imposed.
42. The offender in that case and the present case chased the victims before catching up and stabbing them with a knife. The only difference is that in the Lagu case there was an element of de facto provocation present. The action of the offender in that case was immediate and before there was time for his passion to cool. The present case is different. It was a revenge attack after some time.

43. The sentence in the Lagu case also augurs well with the Supreme Court decision in the case of Max Java which was also referred to earlier.
44. The other case similar in nature to the present case is the case of The State v Willie Gideon (2018) N7340 which Ms Peu referred to. In that case the prisoner attacked the deceased over a previous altercation. The prisoner was sentenced to 18 years.

45. According to the probation report the offender is educated to Grade 12. Despite that level of education and at the age of 26 years, it seems the offender completely lacked any knowledge of proper dispute resolution.

46. He resorted to a vengeance attack as the only way to settle a problem that led to the commission of a horrendous crime.

47. The offender had accepted the offer of compensation for the scar he sustained. After compensation is accepted, the problem is deemed to have come to an end.

48. That was not the case in this case. The old wound was resurrected, and he is now facing a Court sentence.

49. The offence committed is quite serious. Two massive wounds were inflicted on the body using a knife, an offensive and dangerous weapon. The attack was premeditated. The prisoner exhibited a strong desire to cause grievous bodily harm. Bodily injury was intended to reciprocate the scar he carried but went terribly wrong. It ended up becoming a brutal murder.

50. A life was prematurely terminated. Life is sacred. A life cannot return after termination.

51. The Law at the behest of the Constitution gives prominence and protection to the sanctity of life through the rights guaranteed under s 35. The right to life is for everyone in this country which included the deceased and of course the offender.
There was complete disregard for the sanctity of life. It never featured in the mind of the offender when he committed the murder.

52. Courts are imposing high custodial sentences for the loss of a life as attested to in the cited cases. This case cannot be an exception.

53. The offence is prevalent in this country. It seems not a week goes by without a killing or grievous bodily harm being caused to people. It demands deterrent sentences.

54. In his favor the prisoner pleaded guilty and has no prior convictions. In the absence of evidence to the contrary, the Pre-Sentence Report that the prisoner’s family paid K10, 000. 00 as compensation and restored peace is accepted as a special mitigating factor.

55. The message must be sent for the public to note that under our laws, compensation payment after a crime is committed, is not a substitute for imprisonment or any other sentence the Court might impose. Compensation payment is generally necessary, especially in this country to reconcile or mend soured relations and restore peace and harmony.

56. The Criminal Law (Compensation) Act permits compensation orders for amounts up to K5, 000. 00.

57. I have suggested in several earlier decisions that the amount of compensation allowed in that Act needs to be revisited with a view to setting a limit compatible with the present time. It is my humble view that the provision in the Act is outdated and further, limits the exercise of the Courts discretion in the award of adequate compensation for offences deemed appropriate.

58. The amount of compensation that the offender’s family has voluntarily paid is substantially higher than the amount prescribed under the Criminal Law (Compensation) Act. That kind of gesture no doubt makes a mockery of the Act that limits a Court to award a maximum of K5, 000. 00 as compensation.

59. The gesture in the present case is treated as a special mitigating factor. However, a suspended sentence is not appropriate in the given circumstances. In my view a reduced head sentence is appropriate.
Bearing in mind that the maximum prescribed penalty is life imprisonment and considering the factors in mitigation and aggravation, I would have sentenced the prisoner to 25 years imprisonment.

60. However, on account of the early guilty plea entered as a first-time offender and the substantial compensation paid to the deceased family, a reduced head sentence shall be imposed.

61. The prisoner is sentenced to 20 years imprisonment. The time spent in pretrial custody shall be deducted and the balance shall be served at Buimo CIS.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence