State v Yirkurin [2022] PGNC 290; N9709 (14 April 2022)

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CRIMINAL LAW – Practice and Procedure – murder – plea of guilty – imprisonment of 10 years – suspension of term of 3 years – prisoner semi-educated – genuine remorse shown.

Manu Kovi -v- The State [2005] PGSC 34, SC789
Goli Golu -v- The State [1979] PNGLR 653
Lawrence Simbe -v- The State [1994] PNGLR 38
Thress Kumbamong -v- The State [2008] PGSC 51; SC1017
The State -v- Harry Heni & 2 Others CR Nos 487, 278 & 279 of 2009
The State -v- Dani [2020] PGNC 254; N8469 (19 August 2020)
The State -v- Willie Mat; CR. 753/20
The State -v- Malas Wami (2022) N9699
The State -v- Muturu [2012] PGNC 322; N5163 (28 November 2012)

Mr. George Korei, for the State
Mr. Paul Moses, for the Defence
14^th April, 2022

1. REI AJ: The accused was charged that he on the 20^th day of May 2021 at Sibilanaga Village, Nuku, West Sepik Province murdered Livai Sembu which charge was laid under Section 300(1)(a) of the Criminal Code.

“(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 other person or .....,”

3. The brief facts of the case are that the accused and his brothers went to a river in Parkop Village, Nuku, West Sepik Province on 18^th May 2021 to pan for gold. Whilst they were panning gold, a Rangen Simalgen saw them and told them that they were wasting their time and that they will not find gold.

4. When they did not find gold, the accused and his brothers became angry and went looking for Rangen Simalgen as they thought that he cursed them therefore they did not find any gold.

5. The accused and his brothers returned to their village on 20^th of May 2021 and when they met Rangen Simalgen about 11:20 am, the accused cut him with a grass knife on his right arm which severed the muscles and tendons causing heavy bleeding leading to the death of Rangen Simalgen.

6. The accused appeared before the Court on the 6^th of April 2022 in which he was arraigned.

8. The accused entered a plea of guilty which was confirmed by Mr. Moses as consistent with his instructions.

9. A provisional guilty plea was entered and upon perusal of the committal file it was confirmed.

10. The accused was found guilty of the charge of murder laid under Section 300(1)(a) of the Criminal Code.

12. The prisoner said sorry to the Court and to the relatives of the deceased and stated that he did not mean to murder the deceased as he only struck him to cause grievous bodily harm and regretted his death in his hand.

13. Although the mitigating factors of early plea, genuine remorse and no real intention to kill outweigh the aggravating factors of use of a dangerous weapon and violence was involved, a life has been lost and cannot be replaced. He paid K5,000.00 as compensation.

14. The offence of unlawful killing is prevalent in this parts of the country in which implements meant to put food on the table or clean back yards or cut grass have been converted to be used as dangerous weapons to harm people or cause death.

15. The reason why the deceased was murdered was very trivial and that the measures taken by the prisoner to avenge were most inappropriate.

16. There is no evidence in the committal file suggesting that there is a strong intention to murder and that the deceased was struck twice by the prisoner whose death resulted from the subsequent loss of blood from wounds inflicted by the prisoner because the prisoner became angry of the vulgar comments.

17. I should say here that, had the deceased received medical attention early, his life could have been spared.

18. The case of Manu Kovi -v- The State [2005] PGSC 34; SC789 decided by the Supreme Court sets out sentencing tariffs in murder cases these are:

CATEGORY	WILFUL MURDER
CATEGORY 1	-15 – 20 years
Plea - Ordinary cases - Mitigating factors with no aggravating factors.	- No weapons used - Little or no pre-meditation or pre- planning - Minimum force used. - Absence of strong intent to kill.
CATEGORY 2	- 20 – 30 years
Trial or Plea - Mitigating factors with aggravating factors	- Pre-planned. Vicious attack. - Weapon used - Strong desire to kill
CATEGORY 3	- Life Imprisonment -
Trial or plea - Special Aggravating factors - Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	- Brutal killing. Killing in cold blood - Killing of innocent, defenceless or harmless person. - Dangerous or offensive weapons used. - Killing accompanied by other serious offence. Victim young or old. - Pre-planned and pre-meditated. - Strong desire to kill.
CATEGORY 4	- DEATH -
WORST CASE – Trial or Plea - Special aggravating factors. - No extenuating circumstances. - No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.

19. This case falls within Category 1 of the Manu Kovi -v- The State (Supra) case which attracts a sentence of 15 to 20 years whilst Section 300(1)(a) provides for a sentence of life imprisonment subject always to the provisions of Section 19 of the Criminal Code.

20. The maximum penalty should be reserved for the most serious case Goli Golu -v- The State [1979] PNGLR 653 and that each case be determined according to its own facts and circumstances – Lawrence Simbe -v- The State [1994] PNGLR 38. But the judge in each case has a wide discretion under Section 19 of the Criminal Code in imposing sentences he considers the circumstances of a case warrants – Thress Kumbamong -v- The State [2008] PGSC; SC1017 at paragraph 17.

21. In the case of The State -v- Harry Heni & 2 Others CR Nos 487, 278 & 279 of 2009 - unreported decision of Salika DCJ (as he then was), he said that:

“When the Supreme Court in the Manu Kovi case said the sentencing range for category 2 murders should be between 16 and 20 years, to me with respect, it means that the sentencing judge should impose a sentence of between 16 and 20 years, nothing more, nothing less.

To me with respect the Supreme Court effectively took away the sentencing discretion of a judge to impose a sentence lower than 16 years and a sentence higher than 20 years.

By authority of the Manu Kovi case the sentencing trend for category 2 types of murders is locked between 16 years and 20 year, but if I were to apply s.19 of the Criminal Code, I would have a discretion to consider a non-custodial term and consider a term from life to a term of years imprisonment.

In this case, I will, with respect go back to s.19 (1)(a) of the Criminal Code and to come to an appropriate sentence and I will consider other case precedents on murder cases, and I will consider the circumstances of the case to come to an appropriate sentence.”

23. The State -v- Dani (2020) PGNC 254; N8469 (19 August 2020) – On 27 August 2019 at Bom village in the Rai Coast District of Madang, the husband and wife prisoners murdered Kuya Masai. The dispute arose over a family plot of land said to be owned by the Prisoners. Upon learning that their newly planted garden produce was destroyed by the deceased. The wife prisoner summoned her husband to come and see what had happened. Upon the two prisoners arriving at the garden, the two brothers fought in which the Prisoner cut his brother with a bush knife which led to his death, due to loss of blood. All along the wife prisoner was encouraging her husband to cut the deceased. Sawa Dani was sentenced to 18 years imprisonment and Loreta Sawa to 10 years out of which 9 years was suspended.

24. The State -v- Willie Mat; Cr. 753/20 – This case was dealt with in Vanimo in 2021 before Rei AJ. Offender assisted her aunty and his cousin brother to attack a drunkard with a piece of timber. Those drunkards swore at his cousin and his aunty and were about to assault them when the offender came to their rescue and hit the deceased on his head. The deceased was taken to Vanimo General Hospital and he died. The prisoner was sentenced to 12 years imprisonment out of which 6 years was suspended.

25. The State -v- Malas Wami; Cr No. 615/19 – Accused was charged with wilful murder. The matter proceeded to trial on the defence of provocation. Accused acquitted of wilful murder but found guilty of murder only. This is a case where the deceased unlawfully entered the home of the accused and his family and began cutting his kitchen house and the post and side walls of the house that the accused was sleeping in at around 1:00 am – 2:00 am in the early hours of the morning. Accused got angry, run out with his spear gun and shot the deceased on the chest killing him. The prisoner was sentenced to 12 years imprisonment with 3 years suspended.

26. The State -v- Muturu [2012] PGNC 322; N5163 (28 November 2012) – The deceased was standing in front of a canteen. He was drunk. The deceased called out to the prisoner. When he approached him, an argument erupted between the two of them. In the course of the argument the deceased punched the prisoner and he fell down. The deceased walked away leaving the prisoner on the ground.

He got up and ran after the deceased. He then stabbed the deceased from behind with a kitchen knife. The knife penetrated the left side of the deceased’s chest and pierced the apex or top of his heart. This resulted in the deceased losing a lot of blood from which he died almost immediately. He intended to cause him grievous bodily harm but ended up killing him instead. A sentence of 13 years was imposed out of which 5 years was suspended.

27. Sentences imposed in those cases show that each case be determined on its own facts and circumstances. There is no set or strict rule of sentences to be imposed except the Sentencing tariffs in Manu Kovi case and S.19 of the Criminal Code.

28. I consider that this case is not the worst case of murder where the prisoner repeatedly assaulted the deceased or inflict wounds that are serious to cause death. There is also no strong intention to inflict wounds occasioning death. This is shown from both his allocutus and the Pre-Sentence Report. It falls within category 1 of the Manu Kovi case.

29. His death arose from loss of blood resulting directly from the wounds inflicted by the prisoner. It falls within the range of decision on sentence in The State -v- Dani (Supra), The State -v- Willie Mat (Supra) and The State -v- Harry Heni & Others CR No. 487, 278 & 279 of 2009 (supra) attracting a sentence up to 12 years.

30. The Pre-Sentence Report prepared by Ms. Marilyn Binjari speaks favourably for the prisoner. It says that the prisoner and his family paid compensation of K5,000 to the relatives of the deceased with some garden food on 29^th December 2021. They have reconciled.

32. Although the PSR says that the prisoner is not a threat to the community and is a suitable candidate for probation, the relatives of the deceased interviewed say that it is “fair if he spends part sentence at CIS and be released after that as a life had been lost.” To my mind this entails that although the relatives know of and dislike the recklessness of the prisoner, they have forgiven him. But they say the law must take its own course.

33. Mr. Moses stressed that because of the attitude shown by the relatives, a non-custodial sentence be imposed. He conceded that this is a homicide case for which a custodial sentence should not be ruled out.

34. In so submitting Mr. Moses relied on the case of Thress Kumbamong -v- The State [2008] PGSC; SC1017 in which he submitted that a non-custodial sentence was imposed.

35. Mr. Korei submitted strongly that as this is a murder case, non-custodial sentence should not be an option.

36. In my judgement, the case of Thress Kumbamong -v- The State [2008] PGSC; SC1017 is a land mark Supreme Court decision dealing with homicide committed within the domestic set up and is of little assistance to this and any ordinary homicide case.

37. A homicide case excepting homicide committed in a domestic set up shall always involve a custodial sentence which may be partly but not wholly suspended.

38. I disagree with the proposition that it should be wholly suspended by reason of the fact that the attitude of the relatives of the deceased in forgiving the prisoner because a life has been lost.

39. The prisoner is therefore sentenced to 10 years imprisonment. Time spent in gaol of 10 months 28 days awaiting trial be deducted. In the exercise of my discretion under Section 19 of the Criminal Code, 2 years is suspended from the remaining balance.

* the partly sentence of 10 months and 28 days is deducted for time spent in custody awaiting trial;

* Prisoner upon release from the prison be place on Good Behaviour Bond which is to be supervised by the Probation Officer.

National Court of Papua New Guinea

State v Yirkurin [2022] PGNC 290; N9709 (14 April 2022)