State v John [2024] PGNC 434; N11107 (5 December 2024)

N11107

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1983 OF 2023

STATE

V

MARK JOHN

Ramu: Narokobi J
2024: 12th, 15th November, 4th and 5th December

CRIMINAL LAW – Criminal Code, s 300(1)(a) – Murder – Appropriate Sentence on a Guilty Plea.

Mark John, the Prisoner, pleaded guilty to a charge of murder under s 300(1)(a) of the Criminal Code. The victim was a grade 7 student at primary school who was said to be in a relationship with the Prisoner. The victim was waiting to catch the school bus, when the Prisoner hiding amongst the oil palm trees, rushed out, and attacked the deceased. The injuries were a knife wound to the head, 15cm deep, fracturing the skull and further cuts were inflicted to the neck and the back. The motivation for the killing appeared to be a relationship turned sour between the family of the deceased and the Prisoner from a supposed relation between the Prisoner and the deceased. The Prisoner chose not to speak in allocutus, but instead relied on what he would say in the pre-sentence report, which in the end showed no remorse for his actions.

Held:

(1) The pre-planned attack, using an offensive weapon, coupled with the strong intention to cause grievous bodily harm, evidenced by a 15cm deep wound to the head and a fractured skull suggest the case fell within category three of the Manu Kovi v The State sentencing tariffs for murder cases, and the sentence should attract a term between 20 to 30 years.

(2) A sentence of 22 years in hard labour is appropriate, with no suspension and time spent in custody to be deducted pursuant to s 3(2) of the Criminal Justice (Sentence) Act.

Cases Cited
Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC789
State v Matai (2011) N4256

Legislation Cited
Criminal Code
Criminal Justice (Sentence) Act

Counsels
Mr J Kasse, for the State
Mr C Momoi, for the Accused

DECISION ON SENTENCE

5th December 2024

1. NAROKOBI J: Mark John, the Prisoner pleaded guilty to the charge of murdering Elisabeth Petrus contrary to s 300(1)(a) of the Criminal Code on 3 April 2023 at Ranara Junction along the Bruce Jephcoth Highway in the Usino-Bundi District of Madang Province.
   

FACTS

2. The facts pleaded guilty to were that on 3 April 2023 sometimes around 4pm, Mark John used a bush knife to murder one Elisabeth Petrus. At the time of the offence, the deceased was doing Grade 7 at Ranara Primary School. She was walking back home with three other students. When they arrived at the main highway at a place commonly referred to as Ranara Junction, it was raining heavily so they took shelter under the oil palm trees. Whilst they were waiting, the school bus arrived to pick them up. As they were about to board the bus, the accused armed with a bush knife rushed out of the oil palm trees where he was hiding and directly attacked the deceased. Mark John swung his sharp long bush knife at the deceased several times and cut her on the head, in the neck and on her back. A forensic report prepared by the police confirmed a knife wound to the head measuring 15cm deep resulting in a fractured skull and also knife wounds to the neck and back of the deceased. An autopsy report also confirmed that the deceased died from severe head injury sustained from multiple knife wounds to her head, neck and back.
   

ISSUE

3. The Prisoner was read the indictment and the brief facts. It was translated to him in the Pidgin language. He understood the charge and the facts. He pleaded guilty to the charge of murder under s 300(1)(a) of the Criminal Code. I entered a provisional plea and later confirmed it, after his Counsel confirmed that this was consistent with his instructions, and I checked the tendered depositions from the District Court. The issue before the Court now, is what is the appropriate sentence to be imposed on the Prisoner, Mark John for committing the offence of murder?
   

SENTENCING OBJECTIVES

4. When sentencing an offender there are several objectives a sentencing court wishes to achieve. These objectives were stated well by Kapi J (as he then was) in Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510:
   

Deterrence is one of the most frequently used purposes in sentencing under this theory, if the sentence so acts upon the accused as to produce lack of repetition of criminal behaviour, the sentence will have achieved its purpose, namely to promote the peace and safety of the community by discouraging subsequent criminal behaviour of the accused. The other desired effect of a deterrent sentence is to warn others and cause them to refrain from the same criminal activity because if they do not they will be punished in the same way.

The second purpose of sentencing is what may be called the separation of the criminal from the society. This theory of sentencing is considered appropriate in crimes which involve grave risk to the personal peace and safety of the members of the community, such as murder, robbery, rape, etc. Emphasis is placed on the protection of the community rather than the offender.

The third theory of sentencing is that of rehabilitation. The emphasis in this theory is on the offender. The theory behind rehabilitation is that the offender should receive correctional treatment so that when he completes his sentence he becomes a useful member of the community, that is, he will obey the law rather than disobey it. In many of the developed countries, like Japan, special correctional have been built for this purpose. In others they have introduced probation services for releasing the offender into the community under special supervision. In this regard, we are far too behind in developing our institutions and programmes to effectively carry out this purpose of sentencing. Legislation for probation is now under consideration. Until these programmes are developed in this country, many offenders who would be considered under this theory of sentencing will not receive what many other offenders receive in other countries.

The fourth purpose of sentencing is retribution. This theory of sentencing may be referred to as vengeance. This conveys the notion that the person who commits a crime must pay for it, or deserves it. This purpose of sentence is not foreign to the cultures of the people of this country. This is what is normally referred to as payback. This notion grew out of many years of tradition in the village. A person who broke the rules or customs of the village deserved punishment.”

5. I bear these objectives in mind in deciding sentence. Often these objectives contradict each other. Other times they complement each other. Each case will speak for itself.
   

ANTECEDENT REPORT

6. In the antecedent report, the State submits that this is the offender’s first offence. I note that down and will consider it as part of factors in mitigation when deciding an appropriate sentence. Other details of the Prisoner are that he is single, does not have any children, presently unemployed and has spent 1 year 8 months in pre-trial custody.
   

PRE-SENTENCE REPORT

7. I ordered a Pre-Sentence Report (PSR) and it was prepared and filed on 15 November 2024. I have read the PSR, and will refer to it in my judgment. Ms Alice Biko from the Community Based Corrections Probation Service is to be commended for the comprehensive report produced within a short period of time. Various personal details of the Prisoner and the views of the family of the deceased are contained in the PSR after interviewing both the Prisoner and the family of the deceased. Mark John is about 22 years old, educated up to grade 2 because the community school in Gokto where his Awari village is located within the Simbai area of Middle Ramu District of Madang Province could not operate as teachers did not want to serve in a remote location. This place is only connected by air. His date of birth is unclear. Suriname Estate, Ramu Sugar, Usino Bundi District, Madang Province is where he currently resides as he works as a harvester with Ramu-Agri Industry Ltd. Both his parents are alive, and they are very old.
   
8. The PSR contains two conflicting views. Prisoner states that he did what he did because of a long buildup of frustration from the deceased family who have insulted him and brought false accusations against him over his relationship with the deceased in the Village Court where he was ordered to pay K300 compensation. Straight after this incident he bought a bushknife and used it to attack the deceased. Deceased family on the other hand are devastated and are asking for life imprisonment. Given the nature in which the offence was committed the PSR did not recommend any period of probation.
   

CONSIDERATIONS

9. Murder, under s 300(1) of the Criminal Code carries a maximum penalty of life imprisonment, subject to s 19. Section 19 of the Criminal Code confers on the court wide discretion, on the punishment to be imposed on an offender. The maximum penalty is reserved for the most serious instances of the offence (Goli Golu v The State [1979] PNGLR 653). In my view, whilst the nature of the offence is serious the offender is entitled to a fair punishment, balanced against the interests of society. Lawrence Simbe v The State [1994] PNGLR 38 is the authority for the proposition that each offender is entitled to be punished according to the unique facts and circumstances of their case.
   
10. The Prisoner and the State both submit mitigating and aggravating factors to be considered for an appropriate sentence. I read from both Counsel’s submissions and deduce what I consider to be the relevant factors, I should weigh out in the sentence. In mitigation, I have given the Prisoner the benefit of the doubt and accepted the factors he submits, except on the consideration of remorse and de facto provocation, which I will explain my position below. Factors in mitigation are:
    
    • He pleaded guilty, saving the court time and expenses.
    • He cooperated with the police, as is evident in his record of interview.
    • This is his first offence.
      
11. Allocutus was administered to the Prisoner, but he chose not to say anything, instead he said he will rely on what he will say to the Probation Office in his PSR. I must say this is the first time, this has occurred to me. His Counsel confirmed that this is what he intended to do. I left it at that, as that was the expressed intention of the Prisoner, and that he had the benefit of legal representation. I have read the PSR, and no where does it state that the Prisoner expressed remorse for his actions. All it contains were justifications for what he did.
    
12. I also reject the contention that there was de facto provocation. The parents of the deceased had every right to protect their daughter. She was in Grade 7. Her future and dream were before her. The Prisoner was only interested in marrying her. If she was given away in marriage, her education would be imperilled. This is what the Prisoner does not understand. I am not sure if this is because he was only educated to Grade 2 and does not value education. What I can say is that the contention that there was de facto provocation is rejected.
    
13. I accept the State’s submission on aggravating factors considering the circumstances of the case. Seven factors were submitted by the State. These considerations are:
    
    • There was a strong desire to kill. This is evident from the fact that he had a knife and waited to attack the deceased and caused her severe injuries.
    • The use of an offensive weapon. In this case it was a bush knife.
    • It was a vicious attack. The deceased was cut in the head, causing fracture to the skull, and further suffered blows to the neck and back area of her body.
    • A life was taken, that of an innocent school girl. She was in Grade 7 at the time.
    • The attack was traumatising to the school aged children who witnessed the incident.
    • There was no sign of remorse during allocutus, and the PSR did not contain any statements to that effect as well.
    • Prevalence of violent attacks, especially in a domestic setting.
      
14. The Prisoner submits, following the sentencing tariffs in Manu Kovi v The State (2005)789, that this case falls within the second category of murder cases, in that there were:
    
    • No strong intention to do grievous bodily harm.
    • Weapon was used.
    • Some pre-planning.
    • Some element of viciousness.
      
15. The appropriate sentence the Prisoner further submits, should fall between 16 to 20 years. This more so, considering that there were elements of de facto provocation. Such de facto provocation arose from the way the Prisoner was treated. He was taken to the Village Court and ordered to pay a fine for something he did not do. He obtained a bush knife to harm the deceased soon after the Village Court issued an order for him to pay compensation.
    
16. The State submits that the facts of this case suggest it falls within category three, calling for a sentence between 20 to 30 years. The factors which lends itself to this category are:
    
    • Pre-planned, a vicious attack.
    • Strong desire to cause grievous bodily harm.
    • Offensive weapons used.
    • Other offences of violence committed.
      
17. In my view, this was a pre-planned and vicious attack. The Prisoner planned the attack and waited for the opportune time to attack the deceased. The strong intention to cause grievous bodily harm is evident from the forensic report which states that there was a knife wound to the head measuring 15cm deep resulting in a fractured skull and also knife wounds to the neck and back of the deceased. Autopsy done on the deceased also confirmed that the deceased died from severe head injury sustained from multiple knife wounds to her head, neck and back. The intention to harm the deceased is evident from the ferocity of the blow. This was caused by the use of an offensive weapon. All this suggest to me that the sentence I must impose falls within category three of the Manu Kovi v The State tariffs for murder cases, and the sentence should range between 20 to 30 years. I reject the Prisoners contention that his sentence should attract the sentencing range in category two, because there was a strong intention to cause grievous bodily harm.
    
18. I will consider relevant case authorities so that the sentence I impose is within range of similar cases. I discuss these cases to draw similarities and differences. I will do this before I attend to the mitigating and aggravating factors.
    
19. State v Matai (2011) 4256 is a case with similar facts. The facts of that case from the headnotes were that:
    

The offender pleaded guilty to murdering his brother-in-law by cutting him with a bushknife several times on various parts of his body, while the deceased was working in a plantation. It was a vicious attack, arising out of a long running tension between the offender and the deceased.

20. The court imposed a sentence of 22 years, less time spent in custody for the reason that:
    

There appear to be more mitigating factors than aggravating factors, however the viciousness of the attack and the use of the bush knife demand a heavy sentence.

SENTENCE

21. In my view the aggravating factors outweigh the mitigating factors. No remorse was expressed by the Prisoner. Several factors have pushed me to impose a deterrence sentence on the Prisoner. The attack on the deceased was vicious. She suffered a fractured skull. It was planned and done in full view of other schoolgirls who were traumatised by the incident. The life and future of a young girl has been taken away by a man, who thought he had a right to her hand. She was just starting out her life, only in grade seven (7). Her hopes of completing her studies dashed, and her parents devastated. Sentence of 22 years in hard labour is appropriate for the Prisoner considering all I have said. Given the fact that the Prisoner pleaded guilty and cooperated with the police, time spent in custody will be deducted under s 3(2) of the Criminal Justice (Sentence) Act. There will be no suspension of the sentence and no order for compensation as it will be impossible to arrange this given the fact that the Prisoner has no immediate relatives living close to either Ramu or Madang to help him organise it.
    

Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner