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State v Haro [1996] PGNC 51; N1514 (8 November 1996)

Unreported National Court Decisions

N1514

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO 456 OF 1996
THE STATE
v
JACK JOE HARO

Waigani

Batari AJ
7 November 1996
8 November 1996

CRIMINAL LAW - Murder - Sentence - Unprovoked assault - Hit deceased on head with full beer bottle - Mitigating factors - Consideration of - Plea of guilty - Seven years imprisonment IHL.

Cases Cited:

Lawrence Simbe v The State [1994] PNGLR 38

Sentence:

On a plea of guilty to one count of murder, the following judgment was delivered on sentence.

Counsel:

L Maru for the State

B Lomai for the Accused

8 November 1996

BATARI AJ: Jack Joe Haro, you have been convicted of the murder of Erik Kairi following your plea of guilty. I must now pass sentence on you.

The background to your crime was that on 13 August, 1994 at about 6.00 pm you and another person were on a road at Kaugere Settlement when the deceased Erik Kairi, his wife and their infant daughter came along the same road towards their house at the Settlement. When the deceased and his family walked passed, you called out to him and he came to where you were. You had been drinking and had a full bottle of beer in your hand. You asked the deceased for money and when he said he had none, you struck him on the side of his head with the full bottle of beer. He fell from the impact of that blow. You tried to attack him again but were distracted when his wife raised the alarm. She no doubt had become distressed by your sudden and unprovoked attack on her husband when she called you to stop. You and your friend turned on the deceased’s wife and chased her. Fortunately for her and her young child, they were saved by seeking refuge at a nearby house.

Erik Kairi later that evening went to Badili Police Station with his wife to inform the police of your attack. He had much difficulty walking to the Police Station because of the injury he had sustained to his head. He was admitted to Port Moresby General Hospital but died three days later. The Medical Report shows the deceased died from head and brain injury. The doctor found blood clot on the left side of the brain and bleeding in the inside as well as the outside of the brain with bleeding and swelling under the scalp.

The crime of murder carries a maximum penalty of life imprisonment. This is because it is a crime of violence which results in loss of life. Any crime associated with or resulting in loss of life is considered as most serious. The public look at the crime of murder with abhorrence and that is apparent in Parliament’s imposition of penal servitude of life imprisonment for that crime. You are fortunate that life imprisonment is not mandatory. The law says I would impose a lesser term as might be appropriate in the circumstances of your case and I would attempt to do just that.

(A) MITIGATION

Mr Lomai has presented a considered plea in mitigation on your behalf. The preparation of this submission has been of assistance when I deliberated your punishment.

(i) Arrest and Custody

Shortly after you committed this crime, police were looking for you. With the help of your parents, you surrendered to the police. You were arrested and charged on an information dated 25 August, 1994. On the previous day, that is the 24 August, 1994, you admitted your crime to the police and that was recorded in a Record of Interview. In a way, that showed your co-operation and admission of guilt from the beginning. I consider your attitude then as going to show genuine remorse for your conduct.

However, whilst in custody, you committed another offence by escaping. Although I do not take your subsequent conviction as a prior conviction, the effect of your escape was that it reduced those considerations that pointed to your good conduct subsequent to your arrest.

I also have had regard to your re-arrest which again possibly came about with the assistance and co-operation of your parents as in the first instant. In the upshot, your initial co-operation lapse into insignificance when I consider these other matters. On the other hand you spent about 6 months in custody and I will deduct that period from the head sentence I am about to impose.

(ii) Plea of Guilty

In a case such as this a plea of guilty has substance in mitigation because you have saved the Court considerable time and expenses in what could have been a trial on issues which appear indisputable on the face of witnesses statements and your own Record of Interview with the police. Your plea has also saved the deceased’s wife the daunting task of coming to Court and relieving those frightful moments when her husband was attacked and she had to flee with her baby girl for their own safety.

(iii) Remorse

I consider your plea of guilty also supported your remorse which you openly expressed in Court. I believe you are truly sorry for your conduct and for the loss of a young life to the wife and relatives of the deceased.

(iv) Reconciliation

It was submitted by your lawyer, Mr Lomai that things are back to normal between you and that of the relatives of the deceased. You all lived at Kaugere Settlement. However there is no basis for that contention. It was not submitted that the matter had been settled as amongst the relatives through some acceptable and binding form as for instance through payment of compensation. State’s submissions did not agree with your assertions of reconciliation. On the other hand, you have not sought to establish or press your contention after you raised the issue.

However it is apparent that there had been attempts to influence or stop the prosecution of the prisoner. Whoever is involved must be cautioned. Prosecution of those who have been committed for trial or who are charged with offences cannot be dictated by wishes of the relatives of the parties involved. If that were to be the case, the ultimate result would be a total break down of law and order because there would be no respect for law, and there would be no respect and protection of rights of individuals which are fundamental to our democracy. I disregard the assertions by David Karara in his Statutory Declaration on that basis.

(v) Personal Circumstances

You are 20 years old and were 18 years old at the time of the crime. You are single and this is your first time to be in trouble. You completed Grade 10 at Kilakila High School and had studied Matriculation subjects at UPNG and later at Port Moresby Institution of Matriculation Studies. Due to financial hardship, you left studies in June 1996 at the start of the 2nd Semester. The Registrar of the Institute considered you to be a very keen student in furthering your studies. I accept that you have, since leaving school, made efforts to upgrade your education qualification in order to improve your chances of employment. I also have before me, a Reference from the Evangelism Explosion Mission which show that you have taken some counselling. I consider what that means is that you have taken serious steps towards spiritual change for the better. Your plea of guilty and expression of remorse may have also been out of a conviction that in God, there is forgiveness if one is truly sorry for his wrong. I also have regard to your plea that you come from a broken family, the effect of which might have led you to take alcohol resulting in this crime.

(vi) Motive

You have admitted on your allocutus that due to your intoxication, you could not explain your reasons for attacking the deceased. That is quite often the result of alcohol. One often would not explain his actions which sometimes led to tragic consequences as in this case. Your being drunk however does not excuse your crime though it might explain it. It is however, not a significant factor.

(B) AGGRAVATING CIRCUMSTANCES

Having considered all the facts that can be said on your behalf, I now look at the other side of your conduct.

Your crime involved violence. The deceased was almost rendered incapacitated after you knocked him on his head with a full bottle of beer. I find it difficult to understand your sudden attack on an innocent young man who was only trying to return to his house with his family after attending a church service. He did not offend you in any way. When I consider the facts, it seemed more likely that you attempted to rob him. When he said he had no money, you hit him on his head. Your conduct bordered on death arising out of a robbery. You could have simply left him alone and he would be alive today.

You showed him no consideration nor mercy at all when you attack him. His only wrong appeared to have been that he had no money to meet your demand. You did not think that he had a right to his own property and the right to use his own possession to the exclusion of others.

The deceased was a young man in his early 20’s and you caused a premature end to his God given life and right to live. Erik Kairi’s life is lost forever by your senseless and cowardly attack on him while you have a full life ahead of you to live. The pain of loss of Kairi’s life is also inflicted on his young wife and daughter and his close relatives. I consider it an insult to the deceased and his relatives that you would come to this Court and ask for mercy when you did not show any to your victim.

These are factors I must consider against you in fixing your punishment.

(C) DETERRENCE

In terms of deterrence, I do not consider that you will re-offend again. Your experiences to date and your counselling and the sentence I will impose should be sufficient to bring home to you at personal level, the consequence of causing the death of another person. I consider also that the general deterrence aspect of sentencing is relevant in your case to warn others that anyone who kills or causes the death of another person may expect to be punished by the law.

I have considered the sentencing pattern of the Courts in recent years. The tendency has been to impose sentences upward or downward from 6 years in murders cases. There has however been many warnings that the sentences will increase upward. A sentence of 14 years on a plea of guilty to murder has been uphold recently by the Supreme Court. (See Lawrence Simbe v The State [1994] PNGLR 38). That is the highest I could sentence you.

In all the circumstances, I consider your case to fall within the lower end of murder convictions. I consider 8 years imprisonment as the starting point to be adjusted upward or downward. Taking into account all that was put to me on your behalf and all the circumstances of your crime. I sentence you to 7 years imprisonment with hard labour. I deduct 6 months for the time spent in custody. You are to serve 6 years and 6 months imprisonment IHL. I do not consider it appropriate to make suspension orders on the head sentence.

I order that your bail money of K300.00 be refunded.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A Public Solicitor