State v Moi [2021] PGNC 610; N9535 (23 December 2021)

N9535

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 209 OF 2020

THE STATE

V

JOHN MOI

Waigani: Ganaii, AJ
2021: 29^th November, 06^th, 13^th, 23^rd December

CRIMINAL LAW - Sentence - Section 299 of the Criminal Code – Sentencing Principles – Vicious Gang attack – PSR and Victim’s View does not support possibility of Rehabilitation and Partial Suspension - Second Category of Manu Kovi - 23 years appropriate - Time in pre-trial custody deducted – No suspension

Cases Cited:
Papua New Guinean Cases

Aieni v Tahain [1978] PNGLR 37
Goli Golu v the State [1989] PNGLR 653
Manu Kovi v The State (2005) SC789
Public Prosecutor v Tardew [1986] PNGLR 91
State v Andrew Manga N6998 of 2012
State v Digara [2018] PGNC 122, N7219
State v Hotsia Geria (2008) N3868
State v John Oumba Rasta and Another, Cr No 782 and 785 of 2016
State v Junior Felix Ivangai, N8207
State v Kiaro [2020] PGNC 277; N8610
State v Paul Karuka (2021) N9281
State v Tom and Bobby (No 2) [2009] N3675

Overseas Cases

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Legislations Cited

Criminal Code, Chapter 262, Sections 299

Counsel

Mr. David Kuvi, for the State
Mr David Kayok, for the Accused

DECISION ON SENTENCE

23^rd December, 2021

1. GANAII, AJ: This a decision on sentence for the offender John Moi. He was convicted after trial on one count of wilful murder contrary to section 299 of the Criminal Code.

Facts

2. On the 31^st August 2018, between the hours of 8-9pm, the offender John Moi was consuming alcohol with his nephew one Richard Wamil and the deceased Bomai Wai, inside the premises of Holy Rosary Primary School. As they were drinking, an argument erupted amongst them. The offender and his nephew Richard Wamil ganged up and assaulted the deceased. The accused tackled him to the ground and they both used a rock to smash his face. They then escaped. The deceased was left lying helpless and covered in blood when people arrived at the scene. He died at the scene. The cause of death according to Autopsy Report was due to the following injuries: crush fractures to the left side of his face and facial bones; crush fractures on frontal temporal skull bones, loss of most of left upper and lower teeth, and left eyeball pushed back into socket, due to blunt force trauma due to heavy object.

Considerations in Sentencing

3. In consideration of an appropriate sentence, the Court takes into account the facts found after trial; the offender’s antecedent report, what he stated in allocutus, submissions on penalty by counsels including a consideration of the aggravations and mitigations, Pre-Sentence Report (PSR), victim’s view, the law, comparable cases, and the general sentencing principles.

Allocutus

4. The offender was given an opportunity to say what matters the court should take into account when considering and imposing a punishment. (Principle in Aieni v Tahain [1978] PNGLR 37 is applied. He said the following:

“The court is about to sentence me, I say sorry to the court. To everyone in this court room, for taking your time and your hours, I apologise. For the boy’s death, to his people (family), I say sorry to them, the relatives. To my family, I say sorry. When I was incarcerated my family suffered. My four children have left school and I do not know how they are faring without me. I ask the court to have mercy on me and give me good behaviour bond. I can go and be with my family. That is all.”

Pre-Sentence Report (PSR)

Origin And place of residence

5. The offender is 44 years old and hails from Kepai Village, Chuave in the Chimbu Province. His father had died and his mother is still alive. She resides in the village. The offender is the oldest out of a family of five. He has two brothers and two sisters. All his siblings are subsistence farmers.

6. The offender was residing at a squatter settlement, next to the Holy Rosary Primary School, Six Mile, at the time of commission of this offence. He has lived there with his family for more than ten years.

Education and Employment History

7. The offender has not had any formal education. He was employed as a security guard at the time of the commission of this offence.

Marital Status and Dependents

8. The offender is married and has three school aged children. His older daughter is married with a child.

Financial Situation

9. Prior to his arrest, the offender managed small projects such as a piggery and poultry selling pigs and chickens for a living. The money was also used to pay for his children’s school fees. The offender claims that these farms were destroyed by the deceased’s relatives and the offender’s family has now become displaced and financially poor. The family relies on the eldest daughter who is married and employed to sustain them and also on their self-employed and street vending efforts.

Offender’s Health and Future Plans

10. The offender is healthy. He consumes alcohol but is not addicted to it and is not an alcoholic. His wife and children are also physically healthy with no major health issues. The offender however say that he suffers from mental stress as a result of being arrested and charged and facing court for this case. He has no future plans and feels helpless. He described his feelings of helplessness to be ‘as if the world was crushing down on him.’

Persons Interviewed

11. The wife of the offender was interviewed. She stated that their family life has been affected when the deceased’s relatives attacked them. She and the children were living in shock and are slowly recovering. The children have all withdrawn from school.

12. The offender was the only bread winner for the family. He was a devoted father and husband giving time and providing for his family. The offender’s wife still maintained that the offender was wrongly arrested. She also stated that the offender had paid K8, 000 to the offender’s family as bel kol money.

Victim’s Views

13. The younger brother of the deceased was interviewed. He said that to this day, the family of the deceased do not know what the motive was behind the killing of their loved one. He also said a lot of monies were spent on putting up a haus krai (mourning place), meeting the cost for the funeral, and the repatriation of the body to their home in the Chimbu Province. He said that the deceased’s family had set a demand for compensation but the offender and his tribesmen have not met the demand. He said the offender continues to maintain his innocence and he should be imprisoned for that.

Offender’s attitude towards Compensation and Reconciliation

14. The offender maintained his innocence after the court has found him guilty. He also said he had paid K8, 000 as bel kol to the family of the deceased.

Previous Criminal or Probation records

15. The offender had no prior convictions and probation supervision records.

Potential Danger to the community and Suitability for Probation and Supervision

16. The writer of the PSR says that life has moved on to normalcy for both sides of the family. There is peace as both families are sharing resources and supporting each other. On the offender’s good character, his wife has described him as being a devoted father. His own family members have spoken highly of him as someone who supported them with their customary obligations. Further, a Certificate of Baptism was tendered by the defence at submissions, showing that the offender had been converted and baptised as a Seventh Day Adventist Church member, being baptised on the 16^th of November 2019.

Defence Submission

17. Defence had submitted on the presence of mitigating and aggravating factors and on the relevant sentencing principles and case precedents including the case of Manu Kovi v The State (2005) SC789. Defence submitted that this case fell into category 2 of Manu Kovi (supra), attracting a sentence of between 20 – 30 years.

18. In citing other comparable cases of State v Junior Felix Ivangai N8207; State v Digara [2018] PGNC 122, N7219 (23 March 2018); State v John Oumba Rasta and Another, Cr No 782 and 785 of 2016; State v Andrew Manga N6998 of 2012, Defence submitted that the appropriate starting point for this case is 18 years.

19. On suspension, citing the case of Public Prosecutor v Tardew [1986] PNGLR 91, Defence submitted that the PSR is favourble to the offender and the court can consider a part suspension of the head sentence.

State Submission

20. State also submitted on the presence of the aggravating and mitigating factor. The aggravations are that although there was no element of pre-planning, the attack was vicious against a helpless person, and a huge rock (weapon) was used causing facture of the facial bones of the deceased, demonstrating a strong desire to kill. State also submitted on the appropriate sentencing principles to be considered.

21. In citing the case of Manu Kovi (supra), State conceded with the defence and submitted that this case falls within category two of Manu Kovi’s case, attracting a range of sentence between 20- 30 years.

22. State relied on the following comparable cases: Sate v Andrew Manga (supra); State v Tom and Bobby (No 2) [2009] N3675. In both cases, death arose from a drinking brawl where weapons were used. Sentences of 24 years (Manga (supra)) and 12 years (Bobby (supra)) were imposed accordingly, less the time spent in pre-trial custody.

Application

23. It is settled law in this jurisdiction that the maximum penalty for any offence is reserved for the worst kind of case. Principle in case of Goli Golu v the State [1989] PNGLR 653 is applied. Section 19 of the Criminal Code vests the sentencing authority the discretion to impose a sentence less than the maximum prescribed sentence, where the circumstances of the case warrants.

The purpose for sentencing

24. The purpose for sentencing is to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and to the community. Sentencing principle in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 is adopted and applied; applied also in State v Paul Karuka, N9281, (14^th September 2021).

25. The punishment that this court will impose should be in proportion to the seriousness of the crime. Where 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. Principle in State v Kiaro [2020] PGNC 277; N8610 (30 October 2020. Narokobi, J, applied.
Relevant Consideration

26. In State v Hotsia Geria (2008) N3868, Kandakasi, J posed the following questions which are pertinent to determining an appropriate penalty: what the relevant facts pertinent to the case are; what the relevant sentencing trends applied by the courts are; what the aggravating and mitigating factors are; and what the appropriate head sentence should be and should any or part of it be deducted.

Circumstances of this Case

27. The deceased was helpless as he was ganged upon by the offender and another accomplice. To this day, the deceased’s family do not know the motive behind the brutal killing of their loved one. Although some payments were made to the family, a life is gone for good and no amount of money can bring that life back. The criminal law sanctions of punitive punishment must be fully imposed to recognize the sanctity of life that God alone gives and He alone can take and of which the Constitution safeguards against.

28. I am mindful of the effect this crime has had on the family of the deceased. Although the writer of the PSR says that life has gone back to normal for the two families, I do not think that is the case. Through the views of the brother of the deceased, he had raised two concerns. Firstly, their family’s demand for compensation had not been met and secondly, they do not know the reason or motive behind the killing. For that reason, it appears they are left in suspense and cannot put a closure to this case. The brother of the deceased said that the offender has continued to maintain his innocence which caused him to describe the offender as ‘someone acting like an animal’ for killing his brother in the brutal manner he did. He had asked that the court impose a custodial sentence. For all of these, I am not convinced that there has been reconciliation or lasting peace. Although it is the offender’s legal right to challenge a conviction, the offender’s maintenance of innocence may trigger more problems for both families. The report does support the view that the parties are not at peace as opposed to what the writer suggests.

Suspension

29. Defence has submitted that the PSR supports suspension by saying that the offender is of good character and is in good stead for rehabilitation. This court is of the view that the comments made in the offender’s favor are subjected only to his role towards his immediate family members and tribesmen. Those views do not represent the views of the community. There are no good character references from a neutral person or a person of standing in the community that supports the offender’s potential for rehabilitation and probation supervision if a suspension is ordered from a prison sentence.

30. Further, on his prospects for probationary supervision and rehabilitation, where it is shown that the offender is now a converted and baptized SDA church member, a baptism certificate alone, in my view is not sufficient for the purposes of supporting a suspended sentence for s serious offence such as this. There has to be proper character reference form the prison chaplain to support the submission that the offender has become a changed man whilst in prison.

Response to other matters raised by the Offender

31. Where the offender has raised that his family and children have suffered as a result of his incarceration, the court does take into account the fact that the children have suffered as a result and may not be going to school. However, it must be stated that incarceration is a natural consequence of having committed a serious offence and the family will have to live with that.

32. Where the offender has claimed that the deceased’s family have damaged his piggery and poultry projects and displaced his family, this court says that this is a matter for the offender’s family to report to the police to have those responsible to be arrested and dealt with according to law.

33. On the appropriateness of a head sentence, considering the submissions by counsels, in my view, this case falls in the upper scale of category 2 of the Manu Kovi case. Where category 2 offences attract sentences between 20 - 30 years, I consider that a sentence of 23 years imprisonment is appropriate. I impose that sentence accordingly.

34. The prisoner is hereby sentenced to 23 years imprisonment in hard labour. I deduct the time spent in custody from the head sentence which is three years and four months. The offender will serve the balance of 19 years and eight months imprisonment in hard labour.

35. For the above discussions, where the PSR does not support the possibility for rehabilitation and probatory supervision, I do not consider partial suspension as appropriate in the circumstance.

Final Order on Sentence

36. The court makes the following orders:

1. The prisoner is sentenced to 23 years imprisonment in hard labour.
   
2. Three years and three months pre-trial custody period is deducted from the head sentence.
   
3. The prisoner is to serve the balance of 19 years and eight months imprisonment in hard labour.
   

Sentenced accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused