|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 506 OF 2023
THE STATE
v
MICHAEL VALAUN
Kimbe : Numapo J
2024: 11th & 13th June
CRIMINAL LAW – Particular offence – Murder – Guilty Plea – Strong desire to do GBH - Sentencing tariffs on murder cases - Sentencing Discretion – Aggravating & Mitigating factors – Extenuating circumstances – Sections 300 & 19 of Criminal Code.
Held:
(i) A deliberate attack with an intention to cause GBH should attract a stiff punishment.
(ii) The appropriate sentence for vicious attack using offensive weapon is an imprisonment term of between 20 to 30 years – (Re: Manu Kovi Guidelines).
(iii) Sentence imposed by the Court must be aimed at achieving certain specific outcomes such as deterrence, rehabilitation, restitution and retribution.
(iv) Each case must be decided on its own merits being the aggravating and mitigating factors and the extenuating circumstances including the gravity of the particular offence itself.
(v) In homicide cases society expects that the offender, irrespective of his age, is incarcerated so that he is no longer a threat to the community.
(vi) Prisoner sentenced to twenty (20) years imprisonment less the pre-trial period.
(vii) No suspended sentence.
Cases Cited:
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
Manu Kovi v The State (2005) SC789
The State v Iori Veraga (2005) N2921
Kumbamong v The State [2008] PGSC 51; SC1017 (29 September 2008)
Ume v The State (2006) SC836
State v Pinapang [2017] PGNC 16; N6616
State v Bonsu (No.2) [2014] PGNC 312; N5571
State v Sony Yauri and Willie Gideon CR. No. 1045 & 1046 of 2017
State v James Peter Kenneth CR. No. 381 of 2017.
Counsel:
A. Bray, for the State
N. Loloma, for the Defence
SENTENCE
13th June 2024
1. NUMAPO J: This is a decision on sentence. The Prisoner MICHAEL VALAUN was arraigned on one count of Murder contrary to section Section 300 (1) (a) of the Criminal Code and pleaded guilty to the charge and was convicted accordingly.
2. The facts to which the prisoner pleaded guilty to are that; On the 31st August 2023 at around 10pm, the Offender was drinking with a few of his friends at the Cultural Centre, Beachfront, Waterfront in Kimbe. Prisoner then walked over to the deceased’s house and kicked a 44-gallon of water and swore at the deceased. A fight broke out and when the deceased’s son came to stop the fight, he got stabbed with a knife.
3. The deceased tried to stop the attack on his son when the prisoner turned on him and attacked him with a knife and stabbed him multiple times. The deceased later succumbed to the knife wounds and died.
4. The aggravating factors for consideration are as follows:
(i) A life was lost
(ii) A dangerous weapon was used in the attack namely, a knife
(iii) Deceased suffered from multiple knife wounds to his body
(iv) Deceased was attacked in the safety of his own premises, and
(v) Prevalence of the offence.
5. The mitigating factors are:
(i) Prisoner pleaded guilty early
(ii) First-time offender
(iii) Expressed remorse for his wrong-doing.
- PRE-SENTENCE REPORT (PSR)
6. The prisoner is 23 years old and comes from a family of five, three girls and two boys. He is the third born son. He was a student at Kimbe Junior High School when he committed the offence. In his allocutus, he said he is very sorry and regretted what he did. He wants the court to have mercy on him.
7. Both the State and Defence Counsels submitted that in considering the appropriate sentence the Court should be guided by the sentencing tariffs set for Murder cases in the famous case of Manu Kovi v The State (2005) SC 789 (herein after referred to as the Manu Kovi Guidelines). The guidelines is set out here below:
| CATEGORY | MURDER |
| Category 1 | 12 – 15 years |
| Plea Ordinary cases Mitigating factors with no aggravating factors | No weapons used – Little or no pre-planning Minimum force used Absence of strong intent to do GBH. |
| Category 2 | 16 – 20 years |
| Trial or Plea Mitigating factors with aggravating factors | No strong intent to do GBH Weapons used Some pre-planning Some element of viciousness. |
| Category 3 | 20 – 30 years |
| Trial or Plea Special Aggravating factors Mitigating factors reduced in weight or rendered insignificant by gravity of offence | Pre-planned. Vicious attack Strong desire to do GBH Dangerous or offensive weapons used e.g. gun or axe Other offences of violence committed. |
| Category 4 | Life Imprisonment |
| Worst Case – Trial or Plea Special aggravating factors No extenuating circumstances No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence. | Pre-meditated attack Brutal killing, in cold blood Killing of innocent, harmless person Killing in the course of committing another serious offence Complete disregard for human life. |
8. Counsels also referred the Court to some recent case laws on murder cases to show the current sentencing trend and submitted that they be used as a guide. I also included other similar cases and set them out here below:
9. Prisoner was sentenced to 20 years imprisonment for stabbing the deceased with a kitchen knife on his chest. The deceased died soon after from a loss of blood.
10. The prisoner pleaded guilty to killing his wife by chopping her with a bush knife 4 times in the garden. The wife was accused of having an affair with another man. Prisoner was sentenced to 18 years imprisonment.
11. The offender pleaded guilty to killing his adopted mother. He had an argument with her and cut her neck with a bushknife. She died instantly from wound inflicted on her. The offender was sentenced to 21 years.
12. The prisoner was found guilty on one count of Murder. At Ambunti Station in East Sepik Province, the prisoner hit the deceased with a 4x2 piece of timber on the deceased’s head and neck killing him instantly. He was sentenced to 20 years.
13. The offender pleaded guilty to murder of a deceased whom he suspected of killing his father through sorcery. On the day of the incident, the offender and his friend armed themselves with long bush knives and went to the deceased’s house. It was very early in the morning and they were still asleep. When they finally woke up, the offender and his friend came out of their hiding place and attacked the deceased who was holding his grandchild. The offender inflicted two knife wounds to the deceased’s neck. He fell down motionless and they escaped. The court imposed 24 years with none of the sentence being suspended.
14. The prisoner pleaded guilty to murder under section 300 (1) (a) of the Criminal Code and was sentenced to 25 years less pre-trial period of 3 years and 2 months leaving the balance of 21 years and 9 months to serve in prison.
15. The offender and his wife were having an argument that started at the market place. The offender was armed with a knife and stabbed his wife at her back and around the genital and abdomen area. They reached their house and the deceased fell to the ground and died due to loss of blood from injuries she sustained. She received multiple injuries to her body. She was taken to the hospital and but was pronounced dead on arrival. She was 4 months pregnant at the time.
16. The offenders pleaded guilty to one count of Murder. They stabbed the deceased with a knife on his left chest. Both were sentence to 18 years imprisonment.
17. The prisoner pleaded guilty to killing his wife by stabbing her twice on her chest and twice on her abdomen. He was sentenced to 18 years imprisonment.
18. In the present case, the facts clearly shows that this was a deliberate attack with an intention to cause grievous bodily harm (GBH) which ultimately resulted in the death of the deceased. There was a strong intent on the part of the prisoner to do GBH. An offensive weapon in a form of a knife was used in the attack. Deceased suffered multiple knife injuries to his body and died as a result. One thing I find more aggravating is the fact that the deceased was an innocent person enjoying the privacy and comfort of his own home when the prisoner and his accomplices entered his premises and carried out the attack. The question we ought to ask is, whereas is safer when our own home is not safe? There is a serious break-down in moral values and respect for one another when privacy of individuals are attacked. The seriousness of such crime calls for a stiffer penalty.
19. Mr Loloma for the Defence submitted that the crime was committed whilst the prisoner was under the influence of alcohol but this is no excuse. Counsel however, urged the Court not to impose a maximum penalty prescribed by law as this is not a worst type offence. Counsel further submitted that the sentencing discretion under s 19 of the Criminal Code is also available to the Court to impose a lesser sentence than the prescribed maximum sentence for murder.
20. Mr Loloma submitted for a term of imprisonment between 15 – 20 years sentence with partial suspension.
21. Mr Bray for the State submitted for a term of 18-20 years sentence given the gravity and seriousness of the offence. Prisoner entered the deceased’s premises and carried out the attack on him. An offensive weapon, namely a knife was used to carry out the attack. The fact that the deceased died from a multiple knife wounds shows that the prisoner had intended to cause GBH. The attack was unprovoked and unnecessary. A life was lost.
G. APPROPRIATE SENTENCE
22. I have considered the submissions from both the Defence and the State on sentence. The prisoner is considered unsuitable for a non-custodial sentence according to the PSR report and it is recommended instead that he be given a custodial sentence. I am mindful of the fact that imprisoning a youthful offender can have adverse effects on his life in the long run hence, a balance ought to be struck in deciding the appropriate punishment.
23. I looked at several factors, firstly, the interest of the society as against the prisoner’s individual interest. Societal norms and values dictates that the greater interest of society takes precedence over individual interest and in that regard considerations such as the society’s reaction or attitude towards a particular offending and what sort of punishment the society would be expecting for this type of offence. Secondly, for homicide cases, naturally society would be expecting that the offender is incarcerated so that he does not pose any threats to the community irrespective of the age of the offender. The balance of convenience also favours incarceration for such crime. Interest of justice demands that custodial sentence be imposed on such heinous crime to send a very clear message that those who commits such offence can expect the same punishment.
24. Thirdly, the frequency and the prevalence of the type of offence is also a factor for consideration that might influence sentencing. The number of homicide cases have gone up in recent years here in the West New Britain Province. The Court must show its disapproval in the strongest way possible that it would not tolerate murderers and those who inflicted serious bodily harm to others. A punishment with a punitive effect will serve as a deterrence not only to the prisoner but also for other like-minded people who might have to think twice before committing such offence.
25. Fourthly, the fact that an offensive weapon in a form of a knife was used to inflict injuries on the victim shows a strong desire on the part of the prisoner to do GBH. I said in the past and will continue to say that the use of any weapon to inflict injury is dangerous that can result death. (State v. Solomon Jack Goimas Cr. No. 396 of 2015 N7485).
26. Finally, the circumstances under which the deceased died was very tragic indeed. Deceased was attacked in his own premises.
Prisoner and his accomplices entered his yard and kicked his water drums and attacked him for no reason at all. They showed no regard
and respect for him by attacking him in his own home. If a home is unsafe, whereas more can people go to be from being attacked by
hooligans like the prisoner?
27. A sentence imposed must be aimed at achieving certain outcomes such as deterrence, rehabilitation and restitution. These common
law sentencing principles are well adopted in this jurisdiction (The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501).
28. Again, I stress that each case must be determined on its own merits and peculiar facts and circumstances being the aggravating and mitigating factors, the extenuating circumstances and the gravity of the offence itself. The prevalence of the particular offence is also a matter for consideration. All these have to be properly weighed up and balanced out in deciding the appropriate sentence (The State v Iori Veraga (2005) N2921. Maximum penalties are prescribed for each of the offences under the Criminal Code to assist the court in deciding the appropriate sentence between the lower and the upper end of the sentencing scale. It is trite law however, that the maximum penalty is reserved for the worst type case (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No 3) [1982] PNGLR 92).
29. Having said that, I consider that a long custodial term is more appropriate for this case.
30. I make the following orders:
(i) I sentence the Prisoner to Twenty (20) Years imprisonment.
(ii) I deduct One (1) year and Nine (9) months for the pre-trial custody period pursuant to section 3 of the Criminal Justice Sentencing Act.
(iii) Prisoner to serve the remaining balance of Eighteen (18) Years and Three (3) Months imprisonment.
(iv) No suspended sentence.
Orders Accordingly
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2024/192.html