Laura (No 2), The State v [1988-89] PNGLR 98 (3 April 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 98 - State v Eddy Kava Laura (No 2) 

[1988-89] PNGLR 98

N693

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

LAURA (NO 2)

Waigani

Kidu CJ

24 March 1989

3 April 1989

CRIMINAL LAW - Sentence - Murder - Appropriate tariffs - Sentence higher than manslaughter.

CRIMINAL LAW - Sentence - Murder - Intention to cause grievous bodily harm - No aggravating or mitigating feature - Offender aged 17 years - Sentence of eight years.

Held

(1)      Because murder is a more serious homicide than manslaughter, sentences for murder should be relevantly higher than those for manslaughter.

(2)      The following guidelines may be taken as appropriate in sentencing for murder:

(a)      on a plea of guilty where there are no special aggravating factors, a sentence of six years;

(b)      a sentence of less than six years may be imposed only where there are special mitigating factors such as the youthfulness or very advanced age of the accused;

(c)      on a plea of not guilty, a range of sentences from eight to 12 years or more in a case where aggravating factors are evidenced.

The State v Polin Pochalon Lopai [1988-89] PNGLR 48, approved.

(3)      Accordingly, on a plea of not guilty to a charge of murder under s 300(1)(a) of the Criminal Code (Ch No 262) with intention to cause grievous bodily harm where there were no special mitigating features and no special aggravating features, a sentence of eight years was appropriate.

Cases Cited

Kalabus v The State [1988] PNGLR 193.

The State v Polin Pochalon Lopai [1988-89] PNGLR 48.

Judgment on Sentence

On the trial of the accused for murder the trial judge returned a verdict of guilty, see The State v Laura (No 1) [1988-89] PNGLR 92. Subsequently the following judgment was delivered on sentence.

Counsel

T Pryke, for the State.

B Takin, for the accused.

Cur adv vult

3 April 1989

KIDU CJ: The facts of this case are outlined in the judgment I delivered on 24 March (see at 92). They show that an unarmed man was stabbed to death with a home-made knife by the prisoner.

Sentences for murder — as distinct from wilful murder — have varied from three years to nine years in the last eight-and-a-half years. The maximum sentence of life imprisonment was imposed on John Kalabus in 1987 by Wilson J but that was considered a murder of the worst type. [See on appeal Kalabus v The State [1988] PNGLR 193.]

In the same period I have mentioned, manslaughter sentences have ranged from good behaviour bonds to six years. The general tariff has so far been three years in most “spleen” cases. I imposed a sentence of five years in a spleen case at Madang in October 1988. Hinchliffe J imposed six years in The State v Docus Akamio (1988, unreported). So for several years now the higher tariff of sentences for manslaughter (less serious than murder) has reached and in some cases gone beyond the lower range of murder sentences. This very clearly cannot be allowed to continue. A manslaughter sentence cannot generally be more than a sentence for murder unless a manslaughter case is worse than a murder case, for example, where an accused charged with wilful murder is convicted of manslaughter because of provocation but the facts show he hacked the victim to death by delivering several fatal axe blows to the body. This type of case would be worse than a single knife blow delivered to the body as in the present case.

In the recent case of The State v Polin Pochalon Lopai [1988-89] PNGLR 48 Bredmeyer J was of the view (at 49) that “a suitable tariff for the ‘spleen death’ type of manslaughter is five years for a plea of guilty, six years in a contested case, going up to 10 years or more in a case with features of aggravation”. With respect, I agree with Bredmeyer J. In fact, as I have already stated in the case of The State v Sarangum (1988, unreported), I imposed a sentence of five years in a spleen case where the accused had pleaded guilty.

Murder is, of course, a more serious homicide than manslaughter and the lowest tariff should be more than that for manslaughter. Murder involves intention to do grievous bodily harm, causing death in the process of prosecuting an unlawful purpose likely to endanger human life, and so on.

I consider that a murder case with no special aggravating factors where the accused pleads guilty should attract a sentence of six years. Where a sentence of less than six years is imposed, I believe that it should only be in a case where there are special mitigating factors such as the youthfulness of the accused (for example, 14 or 15 years old) or the very advanced age of the accused. In a contested case it should be between eight to 12 years and more in a case where aggravating factors are shown by the evidence. Such factors are too numerous to list here and must be determined on a case-to-case basis.

In this case, there are no special mitigating features. In fact, the prisoner has shown no remorse nor expressed regret for what he did. Although he cannot be regarded as a cold-blooded person, his disregard for the life he ended does not help him favourably in considering what his sentence should be. Be that as it may, he is fortunate that I find no special aggravating circumstances against him. He is a young man and at the time he committed this offence he was 17. He is now over 17 and in my observation is 18 or nearly so. I take his youth into account especially because he has not been in trouble previously for any violent crime.

Sentence: eight years IHL.

Deduction: seven months (custody).

Sentence to serve: seven years five months IHL.

Sentence accordingly

Lawyer for the State: Public Prosecutor.

Lawyer for the accused: Public Solicitor.