State v John [2024] PGNC 331; N11001 (18 September 2024)

N11001

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1460 OF 2022

THE STATE

V

WILLIE JOHN

Waigani: Miviri J
2024 : 4^th,17^th & 18^th September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Plea – Reaction to Deceased Intent to Stop Prisoner– Stabbing Unarmed Man Intent on Bringing Order and Lawfulness in Community – Drunk and Disorderly Conduct on Public Road – Serious Offence – Public Roads Properties Must be Safe – Intention to Cause GBH – Death As A Result – Will of Legislature Protection of Life Sacred – 20 years IHL minus period in Remand.

Facts
Prisoner stabbed the deceased who was intent on stopping the prisoner. He was drunk swearing on a public street produced a small knife stabbing deceased in left side of the abdomen. He intended to cause grievous bodily harm from which he died.

Held
Plea
Drunk disorderly on a Public Street.
Intent to cause grievous bodily Harm.
Deceased intent to stop behaviour
Drew a knife wound to the abdomen
Sanctity of Life
Prevalent offence
PSR MAR considered
Non-custodial term disproportionate
20 years IHL minus time on remand.

Cases Cited:
Aihi v The State (No 3) [1982] PNGLR 92
Kwapena v The State [1978] PNGLR 316
Simbe v The State [1994] PNGLR 38
Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023
State v Hagei [2005] PGNC 60; N2913
The State v Kovi [2005] PGSC 34; SC789
The State v Malala [2018] PGNC 310; N7414
The State v Nimagi [2004] PGSC 31; SC741
Tardrew, Public Prosecutor [1986] PNGLR 91
Golu v The State [1979] PNGLR 653
Leslie v The State [1998] PGSC 22; SC560

Counsel:
S. Suwae, for the State
K. Watakapura, for the Defendant

SENTENCE

18^th September 2024

1. MIVIRI J: Willie John of Arawa Village in Baimuru, Gulf Province appears to receive sentence for his crime of murder committed, in that he intended to cause Grievous bodily harm, but death ensued when he stabbed Awa Koivi in the abdomen.
   
2. He was indicted pursuant to Section 300 (1) (a) of the Criminal Code reading:
   
   • (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.”

3. His penalty prescribed is to a maximum of life imprisonment for the crime. But that will not be imposed because his case is not the worst case of murder, instead he will draw a determinate term of years: Avia Aihi v The State (No 3) [1982] PNGLR 92. Of relevance is the facts upon which he was arraigned. He was under the influence of liquor on Wednesday 06^th of April 2022 between 11.00pm and 12.00midnight at Epeia Point Kaugere Settlement in the National Capital District. And was walking that street shouting out obscene words. Awa Koivi was with his wife near the road. He was not happy about the utterances and behaviour of the Prisoner, so told him to stop speaking in that manner and swearing. But the prisoner continued to do as he walked down that road. The deceased walked to him to stop him, and the prisoner drew out a small kitchen knife tucked on his side and stabbed the deceased once on his left side of the hip. After stabbing the deceased, he removed the knife and ran away whilst the deceased collapsed to the roadside with his intestines coming out from the stab wound. He was rushed to the hospital but died because of the 40mm incision wound to the left side of the abdomen. When he stabbed him, he intended to cause him grievous bodily harm from which he died. His actions therefore contravene section 300 (1) (a) of the Code.
   
4. He pleaded guilty to the facts set out above. But they do not evidence that He had justification either in law, or by the facts, to do what he did: Kwapena v The State [1978] PNGLR 316. He was motivated by voluntary and self-induced consumption of alcohol that has become the norm in many settlements within Port Moresby and throughout major centres of the country, that has been the evil enticing uncontrollable antisocial behaviour that has drawn out families from their roots and neighbourhoods. It seems the availability of alcohol at leisure and random, home brewed and the like has drawn roots into youth and the young intent on enjoying life, but uncontrollable drawing illicit behaviour as was the case here. There is simply no checks and balances in its sale and consumption. Fundamentally there is no age restrictions, or hours of trade. Enforcement is not there at all by authorities issuing licences and police enforcing, either by virtue of the call of the Constitution section 197, or auxiliary as by the National Capital District Enforcement reserve constabulary. It seems the tap and the washer of alcohol has become loose flowing uncontrollable into the community lashing out evil and crime as here. After all its illicit produce and sale is a means to survival for the urban dweller in a settlement situation. There is therefore no control in its sale, and its roots are drawn deep into the community as is evidenced here. It cannot be allowed to spread its tentacles of evil unchecked at random at its leisure and pleasure. The sentence here will draw blood to send the message loud and clear that its rein must be ended with a bold No.
   
5. Presence of police in the community has withered away despite heavy pumping of money and resources into the Police Force. Police have become lazy and lax prompting citizens as the deceased to stand up to bring order lawfulness in the communities they live in. Kaugere is no exception to the escalating lawlessness facing communities in Port Moresby and the Country. There is no sense of orderliness displayed. Given these underlying facts it is upon the Court an ultimate duty to restore law order and justice to all within. Because it is rampant and must be immediately stamped out with strong deterrent and punitive sentences against those who see fit to defy.
   
6. Pleasure and leisure of voluntary consumption of brewed or illicit alcohol does not extend and is a prerogative to persons in the likes of the prisoner to torment, terrorize, intimidate, fornicate, bring disrepute, and ridicule upon innocent law-abiding citizens such as the deceased. The Courts will not be blind to such behaviour. Here is time rampant to send the message that such will not be tolerated by the Courts. The root cause alcohol illicit and available will be addressed in this sentence. There is nothing wrong to consume but it is wrong to do what the prisoner did here. And Persons in the likes of the deceased who take the place of a policeman must be protected by the law to take the stance to curb this uncontrollable behaviour, rampant, prevalent, in the communities, suburbs, country wide. I do not find any matters arising out of the presentence report that has been ordered and now filed into court to sway a sentence other than imprisonment. I take the aggravated unnecessary loss of life very serious. Considering that this are circumstances that have been forever prevalent despite sentences served by the Courts. And it is particularly serious considering the deceased was a 38 years old married man stabbed because he slapped the prisoner who was swearing obscenities and acting rowdy. He lost his life because of the behaviour of the prisoner. It is an unthinkable act and disproportionate use of a knife to a venereal part of the body, the abdomen. It is not a light matter to be considered on a scale but must draw its sentence from its facts and circumstances: Simbe v The State [1994] PNGLR 38.
   
7. Yes, he is a first offender who has pleaded guilty no doubt drawing leniency for that fact. It is acceptance of a wrong committed and preparedness to accept responsibility for the actions contravening. A 20-year-old man educated to grade 3 in primary School with no formal employment experience. Originally from Arawa village, Baimuru, Kerema, Gulf Province. He was living with his grandfather at the time of the commission of the offence. These facts do not compound anything else from the Presentence report filed to set foot hold to see alternatives to imprisonment other than incarceration. His own facts will mete out the appropriate penalty due him.
   
8. In his allocutus when given an opportunity to address the Court He was remorseful and pleaded for leniency. In his favour was the fact that K 5000 was paid by his relatives with a pig. He did not pay personally for the wrong but drew his family into the wrong that he had committed. Given that fact it did not weigh heavily because he did not feel the pain of the crime that he had committed but sheltered under his family. They were not responsible for that crime in law but took it out upon themselves considering. That would be mending of the relationship between the prisoners’ people and that of the deceased. But will not alleviate what the legislature has prescribed in his case in the penalty due. This view is very clear in Aquila v Independent State of Papua New Guinea [2020] PGSC 113; SC2023 (29 October 2020). Because by law, the Criminal Compensation Act is a maximum of K 5000 and not more.
9. His presentence and means assessment report do not have any extenuating circumstances: State v Hagei [2005] PGNC 60; N2913 (21 September 2005) that sway, otherwise than a deterrent custodial term to reflect. The taking of human lives has been random undeterred and very prevalent as ever. No amount of sentence has had the rippling effect of deterring the crime. But the life of the deceased must be respected and by the same regard must be taken of precedence to guide as in Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). Which places the present set of facts and circumstance at category three which is 20 to 30 years imprisonment because there is viciousness in the attack, a weapon is used, here a kitchen knife, a strong intent to do grievous bodily harm. Because He swings the knife at him given that he is unarmed unsuspecting at his mercy. Whether he lives or not on that day. It reflects his determination to exceed the authority of the law in the commission of a crime. It is the pinnacle of all the swearing he utters on that day, drawing the good Samaritan out of the deceased. 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. Because life is lived only once and is sanctified. Senseless cold-blooded killing must stop. He will not go back to his wife ever. Section 35 Right to Life must be accorded its place in the Constitution a basic right. This sentence will reflect that the intentional taking of life, or as here intent to cause grievous bodily harm, from which death occurs will drive deterrent and stern sentences: State v Malala [2018] PGNC 310; N7414 (16 August 2018). They mercilessly cut all the deceased limbs over he’s hitting their canoe. During an armed robbery death resulted 50 years was imposed in Nimagi v The State [2004] PGSC 31; SC741 (1 April 2004) confirmed on appeal. I find that the prisoner paid no heed that all are equal in the eyes of the law. That there must be respect of the rule of law in the communities. No one is above the law and it is not a ticket, or licence to swear and to terrorize the community because one is drunk, or has consumed alcohol voluntarily.
11. I reiterate in bold what the Supreme Court said in dismissing an appeal, “The Supreme Court, in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes nowadays know no boundary, and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane (supra), the Parliament has already legislated the different types of homicide by classifying them into manslaughter, murder, and wilful murder. In our view, it serves no purpose when Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this, we forget the values of lives that have been prematurely terminated. The notion of sanctity of life and constitutional protection of lives therefore become meaningless and mere judicial rhetoric.” Nimagi (supra). I am sentencing for murder, not manslaughter or wilful murder. The facts and circumstances will fuel the sentence due the prisoner here.
12. I consider these applicable in all fours to this case. And I take due consideration of his personal antecedents including that he is a first offender who has pleaded guilty to the charge. In any case it would not have made any difference in the light of the fact that, section 19 (6) of the Criminal code three broad categories can be summarized upon which suspension can be considered in sentence, (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health: Tardrew, Public Prosecutor [1986] PNGLR 91. In all respects in the case of the prisoner now with the Presentence Report the Means Assessment Report, I am not convinced that there is material to sway other than the custodial term due for murder in the light of all set out above. It is my view given all above that the sentence must fit the crime: Golu v The State [1979] PNGLR 653.
13. And given all set out above, alcohol and its consumption will not be considered a barrier to what the legislature has prescribed for violent offences. Especially where the prisoner pays no heed that he is breaching the peace of that community no fault of it by his violent behaviour after voluntary consumption. The deceased has not impinged by asking taking the initiative against the actions of the prisoner to desist his illegal behaviour. His life taken without mercy to bring order and lawfulness must be upheld in the sentence due the prisoner. I likened his cause to Leslie v The State [1998] PGSC 22; SC560 (7 August 1998). And sentence imposed must deter would be offenders similar. In my view it is not erroneous after due consideration of all, that 20 years IHL be imposed upon the prisoner for the crime of murder. And I so impose that upon the prisoner forthwith.
    
14. The sentence is 20 years IHL. Time in custody is deducted forthwith. He will spend the balance in jail IHL.
    

Ordered Accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant