State v Kivovon [2021] PGNC 662; N9958 (30 July 2021)

N9958

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 40 OF 2018

THE STATE

V

HOSEA KIAVE KIVOVON

Kokopo: Suelip AJ
2021: 6^th, 24^th May & 1^st, 30^th July

CRIMINAL LAW – sentence – plea – murder s.300(1)(a) Criminal Code – deceased swore at offender and cousin sister – offender hit back of the head of the deceased with timber – deceased died upon arrival at health centre – offender paid funeral expenses and compensation – sentence of 14 years partly suspended less custody time – order for compensation.

Cases Cited

Manu Kovi v. The State (2005) SC789
State v. Nancy Kumine [2018] N7532
State v. Billy Gilbert Bilaga [2020] N8541
State v. Manly Mistal (Jnr) [2019] N7841
Goli Golu v The State [1979] PNGLR 653
State v. Petrus Kuau & Dominic Binu (2018) N7602

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

30^th July, 2021

1. SUELIP AJ: On 6 May 2021, the prisoner, of Raim village, Toma/Vunadidir LLG, Gazelle District, East New Britain Province, pleaded guilty to one count of murder of Pukai Tongap.

2. This is my decision on sentence.

3. The brief facts from which he pleaded guilty to and were convicted upon are these. On Saturday, 16 September 2017 at around 3pm and 4pm, the prisoner and the deceased, Pukai Tongap were at the borders of Raim and Tanaka villages, at Mr Candy Rape’s resident, Toma Vunadidir LLG, Gazelle District, East New Britain Province. At that time and place, they both were drinking alcohol with some other persons. The prisoner then went to see his cousin sister Leonie William. When the deceased saw the two together, he swore at both of them saying “amur waria” which means “you two fuck”. The prisoner got really offended and some minutes later, he got a 2x3cm timber and hit the deceased at the back of his head. The deceased fell unconscious on the ground. He got up and was asking “who hit me, who hit me?” After that he fell on the ground and was rushed to Tapipi Health Centre. However, he was pronounced dead upon arrival. The actions of the prisoner contravened section 300(1)(a) of the Criminal Code Act and the State charged him with one count of murder.

4. Section 300(1)(a) of the Criminal Code provides as follows: -

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
...

Penalty: Subject to Section 19, imprisonment for life.

5. The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code.

6. The prisoner’s personal particulars become relevant when considering his sentence. He is now 30 years old and come from Raim village in the Toma/Vunadidir LLG, Gazelle District, East New Britain Province. He is married to Serah Bitue Kivovon, a primary school teacher and they both reside at Tanaka village. He has 2 brothers and a sister, and he is the first born in his family. His sister is married while his two younger brothers are still in school. He comes from a disciplined family, and he is of the Catholic faith.

7. He is educated up to grade 12 through matriculation and has completed stages 1 and 2 of heavy equipment fitter at Melanesian Training Institute. He plans to complete stages 3 and 4 of the course. His family relies on vegetable gardening where surplus is being sold at the market for cash. He is on a K1,500 bail and have since paid a total of K11,600.00 in cash and in kind to the family of the deceased.

8. During allocutus, he apologized to the Court and the family of the deceased. He said he has paid all the demands from the family of the deceased. He said he has made peace with them, and everyone is on good talking terms. He asked for the Court’s mercy and want to be given good behavior bond to serve his sentence at home.

9. In his favor, the mitigating factors are these. The prisoner is a first-time offender, and he did not plan to murder the victim. He also pleaded guilty early to the charge which saved the Court’s time and resources to run a trial. He has paid some compensation and funeral expenses, and reconciliation has taken place between his family and the family of the deceased. There was also some form of provocation, which is to his advantage, and he did express genuine remorse during allocutus.

10. However, against him the aggravating factors are these. He used a piece of timber to hit the deceased twice with excessive force on his head, which is a vulnerable part of the body. Further, he was drunk, and a life was lost. Finally, such an offence is prevalent in society.

11. His counsel argued that this case warrants a starting point of sentence at 15 years which is towards the upper end of the first category and the lower end of the second category in Manu Kovi v. The State (2005) SC789. She says that since the mitigating factors outweigh the aggravating factors, coupled with the payment of compensation and funeral expenses, a head sentence of 12 years is the most appropriate for the prisoner. His counsel also says that the 8 months he spent in custody before he was released on bail should be deducted pursuant to section 3(2) of the Criminal Justice (Sentence) Act 1986. Further, his counsel argued that since the pre-sentence report is favorable to him and seeing that his behavior has improved since the incident, it is up to this Court to decide whether to suspend any of his sentence as the offence he committed is a very serious one.

12. His counsel referred to the case of State v. Nancy Kumine [2018] N7532 where the offender hit the deceased several times with a piece of wood and the deceased sustained injuries and received medical attention the same day. However, the deceased collapsed the following day, and she was rushed to the hospital where she died. The offender was sentenced to 12 years imprisonment with pre-trial custody time suspended.

13. His counsel also referred to the local case of State v. Billy Gilbert Bilaga [2020] N8541. This is my decision where during a drinking session, an argument broke out and the accused got a 5x1cm timber and hit the deceased on his face. The deceased fell down to the ground and died on his way to the Aid Post. He was sentenced to 14 years with half of sentence suspended with strict conditions.

14. On the other hand, the State argues that the appropriate sentence to be imposed on the prisoner is a term of 16 to 20 years which is in category 2 of the Manu Kovi case. The State says any offence of homicide is serious and calls for both personal and general deterrence. The State says that a life has been lost and can never be replaced with payment of compensation or otherwise. Hence, the State submits that a custodial sentence is warranted for him as we need to protect the sanctity of life whilst a stern warning is sent to the wannabe offenders in the public to refrain from committing similar offences.

15. The State referred to several case authorities to support its submission, but I will only discuss the local case of State v. Manly Mistal (Jnr) [2019] N7841 where the prisoner pleaded guilty to murdering his elder brother. An argument broke out between the deceased and the prisoner and his sister. The deceased then cut the prisoner on his right hand. The prisoner then retaliated and with his accomplices and cut the deceased on his calf muscles and speared his face. The prisoner was sentenced to 25 years with 3 years suspension. He was imprisoned for 22 years less time spent in custody.

16. In the pre-sentence report, the prisoner’s wife and his mother say he is a humble, quiet, and obedient person. They both assisted with his bail and a payment of K11,600.00 was made to meet funeral and compensation demands. They want a non-custodial sentence imposed on the prisoner. Also, in the pre-sentence report, the views of his ward member and the brother-in-law of the deceased, who is also a catechist were taken. Further, the views of the ward recorder were also engaged. The ward member and the catechist share the same views about him. They say he drinks but he is always in control of his behavior. The ward member says that the deceased is a very aggressive and short-tempered person who causes nuisance, provokes argument, and stirs trouble in the community. He also says that only K7,700 was paid in cash and in kind, not K11,600.00 as indicated by the prisoner’s family. The ward member further confirmed that reconciliation took place and peace has been restored between the two (2) families.

17. I have also considered the two (2) victim impact statements from the wife and mother of the deceased, respectively. The wife says she and her 9-year-old son miss the deceased and his death has caused the son to lose interest in school. She says she misses the support of the deceased and the family had made a demand of K30,000.00 of which only K10,000 was paid. She wants the law to deal with the prisoner accordingly and she wants to see justice done for her deceased husband. The mother of the deceased also wants to see justice done and the Court to deal with the prisoner accordingly.

Sentence

18. This is not a worst type case and so the maximum penalty of life imprisonment will not apply. See Goli Golu v The State [1979] PNGLR 653.

19. I am guided by the principles outlined in Manu Kovi v. The State (supra) where the circumstance of this case falls within the range of the second category with a sentencing range of 16 – 20 years. I am not bound by these sentencing guidelines.

20. I also found the case of State v. Petrus Kuau & Dominic Binu (2018) N7602 where the prisoners were sentenced to 15 years and 16 years, respectively. In that case, the deceased was acting in a disorderly manner and provoked the first prisoner in the first prisoner’s home when both prisoners assaulted him causing rapture to his spleen.

21. I agree with the State that the starting point for the prisoner’s sentence is between 16 and 20 years of imprisonment for the crime he has committed. A life was lost, and so I take that as a serious factor against him. He must be penalized for the crime he has committed, no doubt. However, I also consider the circumstances that led him to commit the crime. There is obviously some provocation by the deceased when he swore at the prisoner and his cousin sister with words that are forbidden or “taboo” in this society. The prisoner had a genuine reason to be upset with deceased. There would be no use trying to reason with the deceased in his intoxicated state of mind. The actions of the prisoner therefore were intended to hurt the deceased, not kill him.

22. I am therefore satisfied that the circumstances of this case warranted a sentence of 14 years on the charge of murder.

23. Section 3(2) of the Criminal Justice (Sentence) Act 1986 gives this Court the power to deduct pre-sentence custody term from the head sentence. Hence, the time the prisoner spent in custody of 8 months will be deducted from the head sentence.

24. Because there is provocation on the part of the deceased when he swore the prisoner and his cousin sister, I will suspend 5 years of his sentence. That leaves 7 years and 4 months for the prisoner to spend in prison.

25. The family of the deceased have demanded K30,000.00 as compensation. From the presentence report, a total of K10,000 was already paid. Pursuant section 5(3)(b) of the Criminal Law (Compensation) Act 1991, the highest amount of compensation to order is K5,000 either in cash, goods, services, or a combination of all. Hence, I order payment of K5000 cash as compensation to be paid at any time but before the prisoner is released from prison. His bail monies will be refunded to him and will go towards payment of compensation to the family of the deceased.

Orders

26. The Orders of the Court are:

(i) He is sentenced to 14 years in prison.

(ii) His pre-sentence custody time of 8 months is deducted.

(iii) 5 years of his sentence is suspended.

(iv) He will spend 7 years and 4 months in prison.

(v) Him and his family will pay the sum of K5000 cash to the family of the deceased prior to his release in prison.

(vi) His bail monies will be refunded to him and will go towards payment of compensation to the family of the deceased.
________________________________________________________________
Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Prisoner