State v Powi [2023] PGNC 123; N10242 (9 May 2023)

N10242

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 287 OF 2022

THE STATE

V

PHILIP POWI

Ialibu : Miviri J
2023: 08^th & 9^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – Retaliation Over Assault By Deceased – Bleeding Nose Mouth & Swollen Face – Defendant Pursued Deceased with Bush knife – Deceased Body Found In River – Wound on Neck, left hand side Ribs & Right Hand side of Leg – Disproportionate Attack – No Medical Report – Circumstantial Evidence – No Other Reasonable Hypothesis – 22 Year Old Cousin Brother – No Remorse Expressed – Sanctity of Life – Prevalent Offence – Concealment of Body – Strong Deterrent Sentence – 25 years IHL.

Facts
Prisoner cut the deceased on his neck, left side ribs, and right-side leg causing massive bleeding from which he died.

Held
Defendant assaulted by deceased & 2 others.
Bleeding nose & mouth with swollen face.
Chased Deceased with Bush knife.
Retaliation over.
Multiple cuts with Bush knife.
Body Found 7 days later in River.
Determined attack.
No Remorse.
Strong Deterrent Sentence.
25 years IHL.

Cases Cited:
Aihi v The State (No 3) [1982] PNGLR 92
Golu v The State [1979] PNGLR 653
Isaiah v State [2022] PGSC 68; SC2264
Kwapena v The State [1978] PNGLR 316
Kumbamong v State [2008] PGSC 51; SC1017
Keru; Public Prosecutor v Aia Moroi, Public Prosecutor v [1985] PNGLR 78
Kalabus v The State [1988-89] PNGLR 193
Kama v The State [2004] PGSC 32; SC740
Kovi v The State [2005] PGSC 34; SC789
Simbe v The State [1994] PNGLR 38
State v Hagei [2005] PGNC 60; N2913

Counsel:

P. Tengdui, for the State
P. Yer, for the Defendant

SENTENCE

09^th May, 2023

1. MIVIRI J: This is the sentence of Philip Powi of Imihoma Mendi Southern Highlands convicted of the murder of Bos Misin committed on the 15^th of October 2020 at Wara Kolpa Imihoma Mendi Southern Highlands.
   
2. Materially on that day the deceased Bos Misin accompanied by his brother Samuel Misin and one other Petrus Hiu went to ask him about some money that had come into the receipt of the family. It erupted an argument leading to the deceased with the two others named assaulting him to an extent where he was bleeding from the nose and mouth. He retaliated and ran into his house and returning with a bush knife with which he chased the victim and cut him three times. One on the neck, two on the left ribs side, and lastly on the right leg side. After which he escaped to Mt Hagen where he was apprehended by Police, arrested, and charged now convicted.
   
3. The conviction was pursuant to Section 300 (1) (a) of the Criminal Code which drew the maximum penalty of life imprisonment. It is in the following:
   
   • (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;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.”

4. The maximum sentence due him is life imprisonment for the murder. But that is subject to section 19 of the Code. Which effectively grants a general discretion on the Court to consider other than the maximum sentence prescribed. Because the maximum is reserved for the worst case of murder. And one such case recorded is that of Golu v The State [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979). Life imprisonment was imposed upon the appellant who killed another within the precincts of the Court at Kwikila. That in sentencing, the basic principle to be observed is that the punishment to be awarded should be strictly proportionate to the gravity of the offence. This was a conviction on wilful murder but the principle that applies here also in the case of murder. It is not the worst case of murder. And therefore here a determinate number of years will be visited him for the crime. It is a balancing act between the aggravating as well as the mitigating circumstances, and any extenuating circumstances to tie the proportionate sentence due the prisoner, Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982).
   
5. This was a trial of the murder of a first cousin authored by the prisoner. It did not deter him that their fathers were biological brothers. And further he was not deterred at the use of a bush knife repeatedly on the deceased. He was intent on causing grievous bodily harm because the injuries are all on vital parts of the body, the neck, the side ribs, and the leg. He was not content with one injury or cutting once on the body. There were three in all, all compounded no doubt did not give any room for survival. Hence the discovery of the body in the river seven days later. And it was over an assault with fists that left him with a blooded nose and mouth with a swollen face. The deceased after the assault was running away from him pursued by him with that bush knife. He was unarmed and would not have survived the use of that bush knife. Clearly a disproportionate use of force viewed in the light of Kwapena v The State [1978] PNGLR 4; [1978] PNGLR 316 (1 September 1978). He was not acting to self-preserve himself from imminent danger to life and limb. More precisely his life was in the balance because the deceased had a deadly weapon, that if he did not do anything it was his life in balance, hence his reaction with that weapon he had killing the deceased. That was not the scene here. He was intent and was pursuing the deceased undeterred with a bush knife.
   
6. To exterminate the life of a fellow human being in this way is gruesome. It is a demonstration of real hate and revulsion to behave in this manner. Life is lived once. And the deceased was only 22 years old. He had a long life ahead that was brutally terminated by the Prisoner. Who gave no mercy. And this is evident in the way he has maintained determined that he is innocent of taking his brother’s life. Any man who takes another life cold heartedly as did the prisoner must be sentenced to bring home that life is sacred. No man has a right to summarily determine the life of another in the way he did. The section 35 right to life under the Constitution is written on stone and cannot be denounced as it pleases the prisoner, or any other for the same. There are serious consequences that flow enshrined in by the People in the Constitution, reinforced by the criminal code Act. Because what he did is repugnant to the general principles of humanity. Paying back retaliating for an assault with fists with a bush knife, a dangerous and deadly weapon, has no place in the law. There is not even an iota of de facto provocation and the like by the evidence here, Simbe v The State [1994] PGSC 18; [1994] PNGLR 38 (2 March 1994). The sentence must be proportionate and not disproportionate, Keru; Public Prosecutor v Aia Moroi, Public Prosecutor v [1985] PGSC 7; [1985] PNGLR 78 (1 April 1985). Here the sentences were increased to 15 years and life imprisonment respectively considering all the factors set out above on an appeal by the Public Prosecutor.
   
7. That was in 1985, this is 2021 now 2023 on the eve of the sentence, and the offence of murder is prevalent as ever. And recently the Supreme Court dismissed an appeal against the sentence in Isaiah v State [2022] PGSC 68; SC2264 (29 July 2022) where 25 years imprisonment was imposed by the trial Judge for the multiple stabbing of a pregnant woman by her husband, for a suspicion of adultery. The 25 years imposed at first instance was confirmed, and the appeal was dismissed. He had argued that he was a first time offender and had pleaded guilty expressing remorse, so there was error in the sentencing discretion exercised. The court held it did not constitute an error. Here the deceased was helpless unarmed and running away from the prisoner like the pregnant wife. And further the assault against the prisoner by the deceased had succumbed. He was in no way a threat at all having desisted and fleeing from the armed prisoner. In so pursuing prisoner defied the rule of law. He denied and a trial was conducted leading to his conviction. And the assault by the deceased was the subject to be pursued through the process of law at his discretion, not self-invited and played out as he did here. Committing a breach of the law corresponding with an echoing breach of the law has seen life imprisonment imposed in Kalabus v The State [1988] PGSC 17; [1988-89] PNGLR 193 (27 October 1988). But that is more serious as the present because the prisoner had a prior conviction for attempted rape which he had served came out and committed this offence. He had raped and killed a 9-year-old girl. The sentence of life imprisonment for murder was confirmed on appeal.
   
8. What is fundamental to all human beings regardless is the right to life by the Constitution. That is not a mockery at the whim of an individual as is the prisoner. This is clearly demonstrated by Kama v The State [2004] PGSC 32; SC740 (1 April 2004), where in the course of an armed robbery the appellant discharged the gun, he had killing the deceased a passenger in the PMV on the Sepik highway. Twenty-five (25) years imprisonment was imposed by the trial Judge confirmed by the Supreme Court dismissing the appeal. Remarking that here was a case of a sentence that could have been more than the 25 years that was imposed, it could have been life imprisonment. In other words, the life of a human being is not at the mercy of an individual to terminate as he pleases. The prisoner does not have the mandate to terminate the deceased and then to leave the body concealed in the river. As a robber did there here the prisoner does not have authority to kill and leave the body concealed in the river. All human beings must be accorded dignity and respect for what they are. And that is underlying section 35 the Right to Life guaranteed by the highest law of the land.
   
9. It is not a light matter to terminate a life and be not remorseful after a process of law. The law must reflect the seriousness of the crime. And murder is the next serious homicide offence to wilful murder. The penalty must reflect that. The sentence is for murder not manslaughter Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). Given the present set of facts and circumstance it would be category three which is 20 to 30 years imprisonment. There is viciousness in the attack, a weapon is used, here bush knife, a strong intent to do grievous bodily harm. Because He repeatedly swings the knife at him. He could not outrun him with that weapon. Whether he lived or not on that day was his picking. It reflects his determination to exceed the authority of the law in the commission of a crime. These warrant that the sentence imposed must reiterate observance of the Rule of the law as supreme. When there is determined persistent defiance of the law without heed to common sense and rationality, the sentence must reflect accordingly.
   
10. Further there is no extenuating circumstances as observed by this Court in State v Hagei [2005] PGNC 60; N2913 (21 September 2005). The prisoner was brutally assaulted after he raped and killed a young girl. He was speared by the relatives of the girl through the chest and died. But came back to life whilst in the Buka morgue. The court sentenced him to life imprisonment for the crime of wilful murder. Here is murder, but there are no extenuating circumstances as found in that case. Here he ran away after committing the crime to Mt Hagen where the law was alerted and he was apprehended. To top it off, he made no mention of the fact that the body was in the river after he had committed the murder. The body was found after seven days by the biological brother Samuel Misin, who followed his footprints to discover the body. That in my view makes this offence serious. Where the body is left concealed in a river or hidden location away is evidence to hide the crime. It is concealing the body. Had the brother not gone and looked as he did it would not have been uncovered. No doubt without the body, the charge would not have led to conviction as is the case now. That is itself a very serious omen of a criminal act that must be stopped by a sentence reflecting.
    
11. It is therefore good law to consider each case’s sentence derived from its own facts and circumstances, and not a blind dictate of tariff and range, Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). Peculiar facts of each case must be addressed individually to arrive at a just and proportionate sentence. This is a murder case but the act of concealing the body of a fellow human being, a loved one in a family in this manner must draw appropriate sentence to quell this behaviour. It aggravates his conduct in the crime.
    
12. He really has no real mitigation except that he is a first offender. He is 38 years old married with no children. Originally from Posipol, Imilhoma, Mendi Southern Highlands Province. He is of the seventh day Adventist faith. He is first cousin of the deceased who he has expressed no remorse after the pronouncement of the verdict. He aspires that he is innocent of the murder. But the process of law has determined otherwise. This is stubbornness that must be eliminated that respect for and adherence of the law and its rule is paramount to all by the Constitution. Life is sacred lived only once; no man has a right to terminate it and conceal the body.
    
13. The sentence of the Court for the offence of murder committed upon Bosin Misin on the 15^th of October 2020 at Wara Kolpa Imihoma Mendi Southern Highlands by you Philip Powi of Imihoma Mendi Southern Highlands is 25 years imprisonment in hard labour minus time on remand. You will serve the remaining balance in jail.
    
14. 25 Years IHL.
    
15. 2 years 5 months 8 days is deducted for time in remand.
    
16. 22 years 6 months 22 days IHL.
    

Ordered Accordingly.

__________________________________________________________________

Public Prosecutor : Lawyer for the State

Peter Yer Lawyers : Lawyer for the Defendant