Kovi v The State [2005] PGSC 34; SC789 (31 May 2005)

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Waigani: Injia DCJ, Lenalia & Lay JJ
2004: July 27th, October 27th
2005: May 31st

CRIMINAL LAW - Wilful Murder – Sentence – Principles – Mitigating and aggravating factors –Need for consistency in developing sentencing tariff for murder offences – New Tariffs suggested for Wilful Murder, Murder and Manslaughter – Particular sentence – Life imprisonment - Within range - Appeal dismissed.

Cases cited in the judgment:
Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299;
Anna Max Marangi v The State (2002) SC702;
Antap Yala v The State, Unrep. Supreme Court Judgment, in SCRA No. 69 of 1996 dated 31st May 1996;

Application by ICRAF: Re: Miriam Willingal [1997] PNGLR 119;
Hure Hane v The State [1984] PNGLR 105;
Jack Tanga v The State (1999) SC602;
John Kalabus v The State [1988] PNGLR 193;
Lawrence Simbe v The State [1994] PNGLR 38;
Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78;
R v Peter Ivoro [1971-72] PNGLR 374;
Rex Lialu v The State [1990] PNGLR 487;
Sakarowa Koe v The State (2004) SC739;
Sap James Kumbapen v The State Unreported Supreme Court Judgment in SCRA No. 14 of 2001, dated 26 April 2002;

State v Angaun Kakas & Others [1995] PNGLR 20;
State v Balise Kurimo (1999) N1879;
State v Ben Simakot Simbu (No 2) (2004) N2548;

State v Billy Kauwa [1994] PNGLR 503;
State v Harua Marigi Hariki (2003) N2332;
State v Kepak Langa (2003) N2462;
State v Kopela Madiroto (1997) N1554;
State v Laura (No. 2) [1988-89] PNGLR 98;

State v Maria Pelta Pung [1995] PNGLR 173;
State v Mark Porou (2004) N2655;
State v Michael Gende (1997) N1678;
State v Napoleon Seteb (1996) N1478;

State v Peter Kot (2000) N2027;
State v Steven Loke Uma, Charles Kaona & Greg Wawa Unreported National Court Judgment dated 7 February 1997;
Tony Imunu Api v The State Unrep. Supreme Court Judgment in SCRA No. 16 of 2001, dated 29 August 2001;

BY THE COURT: The Appellant appeals in person against a sentence of life imprisonment for wilful murder imposed by the National Court. He says the sentence was excessive in the circumstances. In his Notice of Appeal, he appealed against conviction as well but he did not pursue this ground at the hearing.

The short facts are that the deceased, the late Pauline Karo, is the Appellant’s wife. They had an eight (8) year old daughter of the marriage. For some time they had been living apart. On the early morning of 14 August 2002, the Appellant and the deceased met at Badili and had an argument over, what he now says, was their daughter (and not a radio as the trial judge found). Later they parted company. The Appellant went to a supermarket at Sabama and purchased a small bushknife. He then boarded a Public Motor Vehicle (PMV) bus and came to the Waigani road junction in front of the Islander Travelodge Hotel. He got off the bus and boarded another PMV bus which was traveling towards Waigani and Gerehu. The deceased was a passenger in that bus. The Appellant sat next to her and spoke to her. When the bus reached the road junction situated in front of Boroko Motors, the Appellant pulled out the bushknife, which was hidden under his clothes, and cut her repeatedly. The bus crew and passengers stopped the Appellant from further attacking her. He surrendered himself and was taken into police custody. The deceased was rushed to the hospital but she died on the same day from loss of blood from multiple stab wounds. The medical report of Dr Golpack shows multiple knife wounds on both sides of her head, on her left arm, elbow joints and wrist and on her back. One of the wounds at the back located at the tip of the right shoulder penetrated her right lung causing it to collapse.

The Appellant submits the sentence is excessive in the circumstances. He says the trial judge erred in not taking into account the fact that his wife was unfaithful to her when he was in prison. When he was released from prison, he took the matter to court and later forgave her. He says he tried hard to "uphold the dignity of our marriage through love and forgiveness" but she made life difficult for him. On the bus he tried to talk to her about why she sent away their small daughter to live with someone else but she did not respond. This "stimulated my anger and this has aggravated me to do what I shouldn’t have done". He says the killing was "through emotional stress and passion".

The Appellant also says the trial judge did not take into account the fact that he had pleaded guilty and saved the court’s time, expressed remorse and that he is a humble law-abiding ordinary citizen with "no crime records of any criminal activities through my years of living". He expressed remorse and asked this Court to be merciful to him by reducing the sentence to a term of years. To support his call for leniency, he submitted a character reference from Mr Tony Miria who is a Community leader in the suburb of Sabama.

Mr Manek for the Respondent submitted that the sentence was appropriate in the circumstances. This killing was serious because it took place in the heart of the capital city, in full view of other passengers in a moving PMV and in broad daylight. He repeatedly stabbed her without regard for the safety of other passengers. This is an unprecedented killing which has not been experienced in the past. It was premeditated and planned. The victim was defenceless. The Appellant had a prior conviction for stabbing the deceased with a knife and causing grievous bodily harm for which he was sentenced to eighteen (18) months imprisonment. He committed the present crime two (2) years after coming out of prison. He had clear intention to kill her this time. This was not a case of crime of opportunity or passion. All these circumstances and the mitigating factors put to us by the Appellant were raised before the trial judge. His Honour properly took them into account in arriving at the sentence.

Mr Manek also submits the sentence was within the range of sentences imposed for wilful murder in this kind of killing. He referred us to a number of Supreme Court decisions in murder and wilful murder cases in which a sentence of life imprisonment was confirmed on appeal¹. He also referred us to a number of Supreme Court decisions in which lengthy terms of imprisonment were imposed in murder cases.

Mr Manek submits the Appellant had not shown any error in the trial judge’s exercise of sentencing discretion and the appeal should be dismissed.

Mr Manek’s submission on the range or tariff of sentence for wilful murder cases requires us to revisit the cases which set the tariff not only for wilful murder but also for murder and manslaughter.

We say this because the tariff for the three types of murder offences should be consistent. Our reading of some of the judgments of this Court and the National which suggest tariffs for each of these three offences appear to be inconsistent. We examine those cases and suggest tariffs for all three (3) wilful murder offences, in a manner we consider is reasonably consistent with each other.

In homicide cases, as with any other offences, the use of a tariff though has its limitations, because the determination of appropriate punishment in each case, is an exercise of discretion, having regard to the seriousness of the offence, the gravity or otherwise of the circumstances of the offence, the personal circumstances of the prisoner which aggravate or mitigate the punishment and the interests of the community in ensuring the punishment achieves its purposes. As the Supreme Court said in Lawrence Simbe v The State ²:

"We say that it is not a matter of a tariff for particular types of murder but, rather, that each case must be decided on its own facts, bearing in mind the various factors that are involved in each case, the gravity of the attack, and the concern of the Court at people who take the law into their own hands".

However sentencing tariffs provide a useful guide in the exercise of sentencing discretion in particular types of cases and Courts must be encouraged to develop them. In developing tariffs, Courts must bear in mind that it is not a mathematical exercise involving technical classification of some broad circumstances of the offence and then fixing a mathematical figure besides them. It is an exercise of judicial discretion and care must be taken to develop them for the future use of Courts.

We begin with the basic principle that the sanctity and value of human life is far more precious and valuable than anything else and no amount of remorse or compensation will restore life lost. The unlawful taking of another person’s life is a serious and horrendous crime which must be adequately punished. The courts have re-iterated this basic and fundamental principle in many cases.

Of the three (3) murder offences, wilful murder is more serious than murder and murder is more serious than manslaughter. The maximum punishment for wilful murder is death and the maximum punishment for murder and manslaughter is life imprisonment. The maximum punishment is of course reserved for the worst case and this is primarily determined with reference to the circumstances of the killing which aggravate or extenuate the crime or mitigate the offence. Generally, all relevant mitigating and aggravating factors are taken into account in determining the appropriate sentence but as to what weight is given to those factors is in the discretion of the court. In relation to mitigating factors, the cases distinguish between ordinary or common mitigating factors and special mitigating factors. Ordinary mitigating factors include the accused’s prior good character, stable good family background, education and religious background, first offender, guilty plea, remorse and co-operation with the police. Special mitigating factors include the offender’s very young or very old age, poor health and payment of customary compensation. The first two (2) pose no difficulty as they have been recognized in numerous cases before the courts. The third one needs amplifying.

Compensation for physical and non-physical injury to a person wrongfully inflicted by another person(s) is widely practiced in many PNG traditional societies. Compensation for injury or damage to personal property is also widely practiced in traditional societies in PNG. Indeed compensation for personal injury and injury to personal property is a universal principle.

Compensation for the loss of human life caused by wrongful actions of another person(s) is practiced in many traditional societies of PNG and more particularly in the Highlands region. It is also a universal principle. Modern nations including Papua New Guinea embrace the principle in statutes which recognize actions such as estate claim, solatium, etc.

Compensation is a relevant mitigating factor³. Whilst the Courts acknowledge that compensation should not be used to pay for crime and that no amount of remorse or compensation will restore loss of life, it is an important mitigating factor. The amount or value of compensation will vary depending on the special circumstances and values of each traditional society. The weight to be given to compensation by the Court will also vary depending on different factors involved such as the existence of custom of compensation for death wrongfully caused, request or demand for compensation made by the deceased’s relatives and response given by the deceased’s relatives, the amount or value offered and accepted, expression of genuine remorse accompanying the payment, the amount the offender himself has paid or contributed, promptness of the response or payment, cessation of animosity and restoration of peace between the two sides of the conflict and so on.

In order for compensation to be regarded as an ordinary or special mitigating factor, two important indicators are the form and amount or value of compensation paid. Payments in the form of money is almost indispensable in modern times.

Valuable personal property such as pigs and foodstuff is common. Some societies use land. The use of living human life, as a form of compensation, used in some traditional societies in PNG, even in modern times, is now outlawed⁴.

The amount or value of compensation often varies. In terms of money, it is difficult to fix any specific amount or figure for compensation but some guidance may be obtained from the maximum amount of compensation prescribed under the Criminal Law (Compensation) Act 1991, which is K5,000. Despite the limit fixed by the Act, cases before the Courts show that compensation of amounts in excess of K10,000 are common in homicide cases⁵. In our view, compensation amount or to the value of between K5000 and K10,000 or over is a substantial payment which would take the payment out of the "ordinary mitigating factor" category and place it in the "special mitigating factor" category.

The weight to be given in ordinary mitigating factors and special mitigating factors will vary. Usually ordinary mitigating factors may be given less weight than special mitigating factors. These mitigating factors are then balanced against the gravity of the killing and the sentence imposed reflects the aggregate effect of this balancing act and in the end, the sentence imposed must fit the crime. Because homicide offences like robbery and rape is a serious crime of violence, the gravity of the circumstances of the killing in a particular case, may far outweigh the ordinary mitigating factors or even special mitigating factors and render them insignificant⁶.

In relation to aggravating factors, these include whether there was deliberate intention to harm, the use of dangerous or offensive weapon, pre-planning and pre-meditation, duration of the attack, multiplicity of injuries inflicted on vulnerable pats of the body, the high degree of force used, nature and extent of the injury inflicted on vulnerable parts of the body, group involvement and the infliction of other cruel or inhuman acts in effecting the crime, the special position of the victim in the community, whether victim is under disability such as old or young ages. The cases do not distinguish between ordinary and special aggravating factors. However, depending on the particular circumstances of the case, some of these aggravating factors may be regarded as special or more grave than others and may warrant the imposition of severe punishment.

We begin with manslaughter cases. The basic principle is stated by the Supreme Court in Antap Yala v The State⁷ and affirmed in Jack Tanga⁸. The Supreme Court said:

"The maximum punishment for the offence of manslaughter is life imprisonment. Whilst sentences for manslaughter will normally be lower than sentences for murder and wilful murder, there are those cases which will justify the imposition of heavy punishment and even the maximum punishment... The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any particular range of sentences for this offence as it is all too often difficult to fix any range of sentences with some degree of precision. However, we would suggest that in an unintentional killing case which is uncontested, whatever the mitigating or extenuating circumstances may be, the application of vicious force, with or without the use of a weapon, causing serious bodily injury resulting in death may attract sentences between 10 years and above and in some cases, even life imprisonment."

In Anna Max Marangi v The State⁹ the Supreme Court summarized previous cases on manslaughter in a domestic context, under three broad categories as follows:

"The current range of sentences for uncontested manslaughter cases in a domestic setting as set out in the above three cases and other cases range from four (4) years to sixteen (16) years imprisonment. There are 3 categories of sentences within this range.

"The first category relates to cases which come in the lower end of this range. These cases involve application of force in an uncalculated manner, such as a single blow, punch or kick on any part of the deceased’s body. For instance, single or multiple kick or punch causing rupture of the spleen. This kind of killings attract sentences between three (3) and seven (7) years. Cases where the deceased has pre-existing disease which accelerated or contributed to the death such as enlarged spleen are treated as less serious than death of a normal person and they attract sentences in the lower end of this scale: Public Prosecutor v John Mela SCRA 17/01, Unpublished Supreme Court Judgment dated 28th June 2001.

"The second category relates to cases which fall in the middle part of this range. These cases involve repeated application of vicious force, with or without the use of an instrument or weapon, such as repeated kicks and punches applied to the head or chest with deliberate intention to wound or cause bodily harm. An example is Jack Tanga’s case. Death caused by single or multiple knife wounds applied on the head, chest or abdomen or any other vulnerable part of the body, without any other special aggravating factors, also come under this category. Unintentional killings which come under this category attract sentences between 8 and 12 years.

"The third category relates to cases which fall on the top end of this range. Those cases involve application of direct force in a calculated manner, on the body using a weapon such as a knife, bushknife or axe inflicting serious bodily injuries, such as piercing vital organs or severing vital parts of the body. Death caused by chopping the neck, legs and arms with an axe or bushknife are examples of this kind of killing. Death caused by single or multiple (knife) stab wounds on the head, face, neck, chest or the abdomen if accompanied by other special aggravating factors may also fall under this category. This kind of killing attract sentences between 13 and 16 years. An example of this type of killing is John Kapil Tapi v State (2000) SC635. The case of Antap Yala (1994) CRA No. 64 of 1994 Unumbered and Unreported Supreme Court judgment of Amet CJ Salika and Injia J dated 31 May 1996 Mt Hagen SCR 69/96, could also come under this category although the sentence imposed in that case was 10 years.

"As to which of these categories a particular case falls into, depends principally on the viciousness of the assault, the manner in which the injuries were inflicted and the seriousness of those injuries which caused death.

"It is worth noting that killings which come under the second and third categories may well constitute murder or even wilful murder, if the necessary intentions to either cause grievous bodily harm or kill are present . . .

In our view, the sentences commencing with Antap Yala, marks a significant increase in the sentences imposed in manslaughter cases since the case of Rex Lialu. Prior to Rex Lialu, manslaughter sentences ranging between three (3) and six (6) years were common. But those kinds of sentences are no longer appropriate nowadays . . ."

Recently, in Sakarowa Koe v The State¹⁰, the Supreme Court discussed the above categories and correctly extended the same tariff to apply to all types of manslaughter cases. The Court then suggested the tariff for each category to be increased as follows:

"...we suggest that the sentencing tariffs be in terms of seven (7) to twelve (12) years in the first category, thirteen (13) to seventeen (17) years in the second and eighteen (18) years to life imprisonment in the third category... At the same time, the National Court still has the discretion to impose a less than what we have recommended in exceptional cases where very good mitigating factors exist..."

This case demonstrates the need to further increase the penalty for manslaughter even after the increases noted in Anna Max Marangi.

In considering an appropriate sentence for manslaughter, the relevant matters to be taken into account are set out by the Supreme Court in Rex Lialu v The State¹¹. In addition to normal mitigating factors, we mention three special mitigating factors which might impact on the sentence.

These are, the offender’s very young age or very old age¹², poor health and payment of customary compensation. We had already discussed customary compensation.

Using the range of sentences noted in Anna Max Marangi as a guide, we suggest the following tariff:

The tariff for murder was first suggested by Kidu CJ in State v Laura (No. 2)¹³. We quote from the headnotes:

Laura (No. 2) was decided in 1988, some fifteen (15) years ago. The tariff suggested in Laura (No. 2) needs to be reviewed to render the tariff consistent with the increase in sentence for manslaughter and murder in the last 10 years. The Supreme Court in several cases called for a review of this tariff with a view to increasing it¹⁴.

In Anna Max Marangi, the Supreme Court in 2002 called for a review of murder sentences with a view to increasing it to render consistency with manslaughter sentences. The Court said:

"Before we conclude this appeal however, we wish to make a comment in general in regard to sentences imposed for murder cases. Whilst it is clear to us that sentences for manslaughter have increased significantly over the years, the same cannot be said of murder sentences. It seems to us that manslaughter sentences have surpassed the tariff for murder cases set out in the often quoted decision in The State v Laura(No. 2) [1988-89] PNGLR 98 and other cases such as Lawrence Simbe v The State [1994] PNGLR 402.Therefore, there is a need now for the Supreme Court to develop new tariffs for murder sentences to render consistency with manslaughter sentences. As this case is concerned with manslaughter, we leave that task for the Supreme Court on another occasion, in an appropriate case".

Recently in Simon Kama v The State¹⁵, the Supreme Court reviewed the tariff for murder in (Laura (No. 2)) and suggested tariff in six (6) categories, ranging from 12 years to 16 years for the first category, 17 years to 30 years for the second, 31 years to life imprisonment for the third, 17 years to 21 years for the fourth, 22 years to 40 years for the fifth and 41 years to life imprisonment for the last category. This case demonstrates the need to increase the tariff for murder.

Since Laura (No. 2), the Courts have repeatedly warned that sentences for murder will increase and imposed sentences beyond the tariff suggested in that case. In our view, the tariff for murder after Laura (No. 2) should no doubt be adjusted upwards to reflect the increase in murder sentences and manslaughter sentences as noted in Anna Max Marangi.

Using the categories set out in Laura (No. 2), as a guide, we suggest the following tariff:

In the past we note the maximum punishment imposed have been life imprisonment in many murder cases in the following types of cases:

(ii) Victim killed in the course of committing another serious crime of violence such as rape, robbery or break, enter and stealing²¹;

(iv) Offender is a repeat offender of crimes of violence or has psychopathic or sadistic tendencies²³;

We consider the above tariff is reasonable and an appropriate increase from the sentencing tariff for manslaughter in Anna Max Marangi.

In an uncontested case, in a case with ordinary case with mitigating factors and no aggravating factors, we suggest a starting point of 15 years up to 20 years.

Sentences below 15 years should be rarely imposed except in exceptional cases with special extenuating circumstances and special mitigating factors.

In a contested or uncontested case, with mitigating factors and with aggravating factors a sentences in the range of 20 – 30 years is appropriate. Examples include the following types of cases:

1. No motive for killing²⁵.
2. Multiple wounds resulting in instant death²⁶.

Life imprisonment, which before introduction of the death penalty was the maximum punishment, was imposed in many cases. In Hure Hane v The State²⁹. Bredmeyer J set out a useful categorization of the different kinds of wilful murder in which he recommended (the then) maximum penalty of life imprisonment as follows:

If the Court considers that the case falls into the worst category then the Court should consider if there are "circumstances which operate so as to diminish the culpability of the prisoner, not in the strict sense, but broadly"³².

Since Hure Hane’s case, life imprisonment has been imposed for the following types of wilful murder cases:-

2) Prisoner of violent character, has previous conviction for manslaughter³⁴;

Life imprisonment is suggested in contested or uncontested cases with special aggravating factors such as brutal or horrific killing of an innocent or harmless person in cold blood. The gravity of the offence is such that any mitigating factor are rendered nugatory.

The maximum punishment of death is reserved for the worst case of wilful murder.

Since the death penalty was re-introduced in 1991, the maximum punishment has been imposed by the National Court in five cases, all of which we understand have been appealed against. One of them has been heard by the Supreme Court and a decision is pending. In those cases, it may be necessary for the Supreme Court to canvass the relevant principles and define the types of cases in which the death penalty may be imposed. For that reason we cannot comment on the principles and the types of cases in which the death penalty may be imposed. We simply set out those cases to show the types of cases in which the death penalty has been imposed by the National Court.

In one case where life imprisonment or a term of years was imposed by the National Court, the Supreme Court described the sentences as being lenient and observed that the death sentence could have been imposed⁴¹.

The tariff for the three murder offences we have suggested is summarized on page 19 of this judgment.

In the present case, the trial judge considered all relevant mitigating factors including the Appellant’s past education and work background, guilty plea, co-operation with the police in surrendering himself and readily admitting the offence, expression of remorse and emotional stress. These were balanced against the gravity of the offence and the fact that he had a prior conviction for grievous bodily harm committed on the deceased. His Honour’s reasons for imposing life imprisonment are as follows:

"I take your prior conviction into account as a circumstance of aggravation .... You attacked the deceased two years later. You used the same modus operandi and you attacked the deceased. However, this time it was fatal. You killed your wife. The two offences that you committed have many similarities. Firstly, you involved the deceased. Secondly, violence was used against the deceased. Thirdly, you used a bushknife to attack her.

Your prior conviction indicates to me your general inclination towards criminality. My view is that you are a man of violence and danger to society.

In a case like this the most prominent purposes of sentencing is a punitive one with a view to public deterrence. Killing arising out of marital discord had become so prevalent. I consider that a stern punishment should be imposed to deter offenders of similar inclination.

In sentencing I consider the wilful murder you committed falls within the worst category of wilful murder warranting the imposition of the maximum prescribed sentence, death. But I am not going to impose that sentence. I find that there existed extenuating circumstances such that it would not be just to inflict the punishment of death."

This was a vicious killing of a defenceless woman in broad daylight, in full public view, in a moving public motor vehicle. The prisoner had a history of violence towards the victim. He committed the present crime two (2) years after serving his term for that offence. The killing of a person in a moving public motor vehicle in full view of other passengers in a busy city street is a serious killing. It demonstrates the offender’s complete disregard for human life, the rule of law and respect for the safety of members of the travelling public. Such an offender represents more than an ordinary danger to the community. This kind of killing must be visited with a strong punitive and deterrent sentence. We consider the sentence of life imprisonment to be warranted in the circumstances of this kind of killing. The present killing falls within the range of the third category of wilful murder cases set out earlier. We do not find any error in the exercise of His Honour’s sentencing discretion.

For these reasons, we dismiss the appeal and confirm the conviction and sentence of the National Court.

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER
CATEGORY 1	-15 – 20years	-12 – 15 years	-8 – 12 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.	-No weapons used. -Little or no pre-planning. -Minimum force used. -Absence of strong intent to do GBH.	-No weapon used. -Victim emotional under stress and de facto provocation e.g. killings in domestic setting. -Killing follows immediately after argument. -Little or no preparation. - Minimal force used. -Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.
CATEGORY 2	-20 – 30 years-	-16 – 20 years	-13 – 16 years
Trial or Plea. -Mitigating factors with aggravating factors.	-Pre-planned. Vicious attack. - Weapons used. -Strong desire to kill.	-No strong intent to do GBH. -Weapons used. -Some pre-planning -Some element of viciousness.	-Using offensive weapon, such as knife on vulnerable parts of body. -Vicious attack. -Multiple injuries. -Some deliberate intention to harm. -Pre-planning.
CATEGORY 3	-Life Imprisonment-	- 20 – 30 years-	-17 – 25 years
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.	-Pre-planned. Vicious attack. -Strong desire to do GBH. -Dangerous or offensive weapons used e.g. gun or axe. -Other offences of violence committed.	-Dangerous weapons used e.g. gun or axe. -Vicious and planned attack. -Deliberate intention to harm. -Little or no regard for safety of human life.
CATEGORY 4	- DEATH -	- LIFE IMPRISONMENT-	-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.	-Some element of viciousness and brutality. -Some pre-planning and pre-meditation. -Killing of innocent, harmless person. -Complete disregard for human life.

________________________________________________________________________
ENDNOTES:

SCA No. 16 of 2001 Tony Imuru Api v The State dated 29th August 2001 of Los, Sevua & Kandakasi JJ.
² [1994] PNGLR 38 at 40
³ Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299.

⁵ e.g see State v Angaun Kakas & Others [1994] PNGLR 20 (K17,000); State v Billy Kauwa [1994] PNGLR 503 (K100,000); State v Margaret John (No. 2) [1996] PNGLR 298 (K25,000); State v Maria Pelta Pung [1995] PNGLR 173 (K20,000); State v Lucy Moro (1998) N1328 (K25,000); State v Paulus Non Pable (1995) N1873 (K20,000): State v Maria Er [1998] PNGLR 26 (K16,000); State v Peter Kot (2000) N2027(K25,000 – 30,000); State v Balise Kurimo N1879 dated 20 May 1999 (K15,000)..
⁶ John Kalabus v The State [1988] PNGLR 193. Kidu CJ, Kapi DCJ, Woods J.
⁷ Unreported Supreme Court Judgment in SCRA 69/96 delivered at Mt. Hagen on 31 May 1996.
⁸ (1999) SC602.
⁹ (2002) SC702.
¹⁰ 739 (2004),
¹¹ 1990) PNGLR 487.
¹² However, see Public Prosecutor v Apava Keru and Aia Moroi [1985] PNGLR 78.
¹³ [1988-89] PNGLR 98.
¹⁴ e.g. Lawrence Simbe v The State [1994] PNGLR 38.
¹⁵ (2004) SC740.

¹⁶ cf: State v Jonathan Arupa Wangus (2001) N2170 (10 years for repeated attack with bushknife arms and back which sectioned back and caused both lungs to collapse because the victim raped his brother’s wife, non legal provocation); State v Jack Mek (1997) N1575 (8 years for killing his own father under stressful circumstances; State v Opuyau Helai (1997) N1533 (8 years for killing wife by chopping neck with axe when "mentally disturbed temporarily.

¹⁷ cf: see James Kennedy v State SCRA 48 of 2000 Unrep Supreme Court judgment of Jalina, Kirriwom & Lenalia JJ dated 26th April, 2001 (16 years for smashing father’s face with rock and axe); State v Wa’ambu Waitu Kamap N...(1971) (12 years for killing husband’s pregnant girlfriend by stabbing her on neck with knife); William Dot, Norman Parkop & James A Make v The State (1999) SC621 (10 years for group attack on deceased following land dispute using sticks and bushknife to cut leg and back);

¹⁸ see SCA 82 of 1993 Agir Caspar Goro v The State Unnumbered judgment of Salika, Injia & Hinchliffe JJ dated 2nd May 1997 (21 years for repeated attack on wife with hands and firewood inflicting head, neck and spinal injuries until she died); State v Sambiako Wapuko (2003) N2444 (20 years for revenge attack by chopping head and legs with bushknife and killing innocent man because his clansmen failed to pay compensation for cutting his brother); State v John Plesman (1997) N1657 (25 years shooting man at point blank range with gun and another stabbed at his back and killed); State v Peter Korak Siwi (2003) N2443 (16 years for stabbing wife with long dagger-like knife on armpit area and which pierced left lung killing her almost instantly); Max Java v The State (2002) SC701 (18 years for premeditated attack cutting deceased with bushknife on stomach killing him almost instantly);

¹⁹ e.g Mary Bomai Michael v State, SC737 (2000) (12 years described as "too lenient"); Pauline Painuk v The State Unnumbered Supreme Court Judgment in SCRA No. 54 of 2000 (18 years for stabbing school girl, described as within the range but somewhat lenient); Lawrence Simbe v State (20 years for planned revenge attack with bushknife cutting him on chest several times and almost sectioning the ribs); Sakarowa Koe v State (2004) SC739 (20 years for shooting with gun after several unsuccessful attempts after an argument); Joseph Mangi, Tom Burua Kerui & David Bawai Laiam v The State (2004) SC741 (50 years considered lenient and noted this was a case appropriate for life imprisonment, where appellants held up people gathered in residential premises for meeting and shot dead at close range deceased on chest and almost instantly killed victim); Simon Kama v The State (2004) SC740 (25 years on an offender held up driver of motor vehicle who shot driver on his head at close range and killed him).

²⁰ State v. Jonathan Sokai N2334 (2002) (Old American University Professor killed by "hausboi" using blunt object on head, for reasons not explained); John Elipa Kalabus v The State [1988] PNGLR 193 (9 years old girls raped, assaulted and killed by offender described as a "sexual sadist); SCRA 14 of 2001 Sap Jack Kumbapen v State, Unnumbered Supreme Court judgment of Hinchliffe, Jalina & Lenalia JJ dated 26th April, 2001 (3 years old boy by deliberately struck on the head twice and killing him because accused had differences with the boy’s father); SCRA 16 of 2001 Tony Imunu Api v The State, Unnumbered Supreme Court judgment of Los, Sevua & Kandakasi JJ dated 29th August 2001(unexplained killing of 14 year old school student who went missing and his body found two days later);

²¹ The State v Kenneth Baupo and Fabian Girida N795 (1999) (victim shot dead with gun in the course of committing robbery and stealing motor vehicle);

²² Aloisius Peter Irobo Kovei v The State SC676 (2001) (victim abducted, pack-raped, neck chopped and thrown into a drain;

²³ John Elipa Kalabus v The State (supra) (rape sadist); (experienced gun handler, prison escapee on the run serving sentence for robbery, shot deceased in the course of committing robbery);

²⁴ State v Kungus Kot N764 (1989
²⁵ The State v Kamap Yakop (1993) N1143.
²⁶ The State v Michael Gende (1997) N1678 ... 25 years (trial).
²⁷ The State v Kopela Maadiroto (1997) N1554
²⁸ The State v Napoleon Seleb (1996) N1478 ... 30 years (trial)
²⁹ [1984] PNGLR 105
³⁰ Peter Naibiri and Anor v The State SC137 (1980)
³¹ Aviah Aihi v The State [1982] PNGLR 292; R v Iu Kepati and Anor [1971-72] PNGLR 44
³² R v Peter Ivoro [1971-72] PNGLR 374.
³³ SCRA Tony Inumu Api v The State (Unnumbered Supreme Court Judgment dated August 2001
³⁴ The State v Godfrey Edwin Ahupa (1998) N1789
³⁵ The State v Yapoko Imbuni & Ors (1998) N1558
³⁶ Unreported National Court Judgment of Woods J dated 7th February 1997 delivered in Kimbe
³⁷ (2003) N2332. Unreported National Court Judgment of Salika J delivered at Waigani in 2003.
³⁸ Unreported National Court Judgment No. N2548 of Kandakasi J delivered at Vanimo on 25th March 2004.
³⁹ Unreported National Court Judgment No. N2655 (2004) of Lenalia J delivered at Mendi on 25th August 2004.
⁴⁰ Unreported National Court Judgment No. N2462 of Jalina J delivered at Wabag on 26th September 2003.
⁴¹ Tony Inunu Api v The State, see footnote 33 ante
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Supreme Court of Papua New Guinea

Kovi v The State [2005] PGSC 34; SC789 (31 May 2005)