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State v Wangu [2001] PGNC 34; N2170 (12 December 2001)

N2170

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 544 of 2001

THE STATE

-V-

JONATHAN APAMBA WANGU

WEWAK: KANDAKASI, J.
2001: 11th and 12th December

CRIMINAL LAW - Sentence – Murder – Repeated attacks using a bush knife severing both arms at the elbow and one deep penetrating cut across the back resulting in the collapsing of both lungs – Guilty plea – No prior convictions – Provocation in the non legal sense – Sentence of 10 years in had labour imposed – Criminal Code ss. 300 (1) (a) & 19.

Cases cited:

The State v. Andrew Keake (unreported judgement delivered on 27/02/01) N2097
The State v.
The State v. Ngetto Rex Rongo (unreported judgement delivered 20/12/00) N2035
The State v. Laura (No. 2) [1988-89] PNGLR 98
Simbe v. The State [1994] PNGLR 38.
The State v. Maria Er N1749

Counsel

M. Ruarri for the State
G. Korei for the Accused

12the December, 2001

DECISION ON SENTENCE

KANDAKASI J: You pleaded guilty to one count of murder contrary to section 300 (1) (a) of the Criminal Code. Upon being satisfied that the evidence produced by the State against you supported your guilty plea, I confirmed your guilty plea and then convicted you of the murder of one Michael Silas. I then heard what you heard to say about your commission of the offence and on the factors I should take into account before sentencing you. I also heard what your lawyer had to say on your behalf and reserved a ruling to today.

The law requires me to take into account the particular circumstances in which you committed the offence and the factors operating both for and against you. I will therefore, first consider the facts followed by a consideration of the factors operating both for and against you as well as the relevant law in this type of cases.

The Facts

On Saturday the 10th of February 2001, around 9:00am, the deceased, Michael Silas was under the veranda of a house talking to a lady. You were at that time armed with a bush knife and two spears. You say you were returning from your garden where you had gone to harvest banana for your old father. On the way back, you came into contact with the deceased who was armed with a bush knife. Upon meeting you, you say he said to you words to the effect that "I always wanted see you face to face and now I am able to see you". You go on to say that the deceased then started to swing the bush knife he had with him at you and you fought back using the bush knife you had. You first cut and severed the deceased right arm below the elbow and then the left at around the same spot as the right hand. Medical evidence and other material on file shows that the deceased also sustained a serious and deep cut to his back which cut through the back bone and penetrated internally resulting in a collapsing of both of the deceased’s lungs. These injuries eventually led to the death of the deceased not long after they were inflicted.

One witness states that the deceased was unarmed and did not do anything at the time of your attack to cause you to attack him. At the same time however, there is other evidence from another witness suggesting that the deceased had raped your older brother’s wife sometime earlier. This gives rise to the suggestion that, that incident caused you to attack the deceased in the way you have.

The Law

The offence of murder and its penalty is prescribed by section 300(1) (a) of the Criminal Code. It prescribes a maximum penalty of life imprisonment. The offence is therefore a very serious one, regardless of how it is committed. The section in relevant parts prescribes the offence and the penalty in these terms:

"300. Murder.

(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;

....

Penalty: Subject to Section 19, imprisonment for life."

It is trite law that the maximum penalty for any offence must be reserved for the worse type of the offence under consideration. There are many cases on that point. I mentioned some of them in my judgement in The State v. Andrew Keake (unreported judgement delivered on 27/02/01) N2097 at pp. 3-6.

Your lawyer has submitted with the agreement of the counsel for the State that, your case does not fall in the worse type of murder case, warranting an imposition of the maximum penalty of life imprisonment. They are at the same time agreed that the offence you committed and the way in which you committed it is serious. In the circumstances they submit that I should impose a sentence of 10 years taking into account your personal background and the fact that you have pleaded guilty to the charge. In so doing, they referred to the case of The State v. Titus Paleau (reference unknown), where my brother, Justice Sawong, imposed a term of 17 years after a trial. In that case, the deceased’s was attacked by a group of man, which included a hit on his head with an axe.

In The State v. Ngetto Rex Rongo (unreported judgement delivered 20/12/00) N2035, I considered and discussed some of the leading cases on murder or section 300(1)(a) cases. I started with The State v. Laura (No. 2) [1988-89] PNGLR 98, which sets out the appropriate guidelines to be followed for sentencing in murder cases. As I noted in that case, the guidelines are only guidelines. Courts are at liberty to impose sentences they consider appropriate in the particular circumstances of the cases before them.

Your Case

Your case comes closer to the case of Simbe v. The State [1994] PNGLR 38. The Supreme Court in that case adopted the guidelines set by the Laura No. 2 case (supra) and applied them in the context of an appeal against a sentence of 14 years following a plea of guilty to a charge of murder. The appellant in that case attacked the deceased with a bush knife and inflicted a substantial cut to the chest, which in effect sectioned most of the ribs and caused the victim’s immediate death. This was over a suspicion that the deceased was trying to entice the appellant’s wife into having sexual liaison. That was after, the appellant followed the deceased to the garden where his wife was and after what he believed to be acts of enticement, he chased him with a bush knife into the bush and chopped and killed him there.

Your case also comes closer to the case of The State v. Maria Er N 1749. In that case, the prisoner stabbed and hence caused the death of a woman whom she believed was seeing her husband. Before she did that, the deceased spit on her, which made her angry and do what she did. After reviewing the sentencing trend in this type of cases, the Court in that case, imposed a term of 7 years in light labour.

In your case, I find that you cut the deceased three times most fatally. I note that you did not have any intention to kill the deceased but only wanted to paralyse him. That is however, no excuse for the charge of murder under s.300(1)(a). If an intention to kill existed you would be looking at a charge of wilful murder which attracts the death penalty. Because you did not have the intention to kill the deceased, you were charge with his murder and not wilful murder. It follows therefore that, it does not matter that you did not have the intention to kill the deceased.

Before arriving at an appropriate sentence for you, I note that you are one of two male children out of your family. You are married with children age between 8 years and one year for the youngest of your children. You are educated up to grade 3 primary education. I also note that you have no prior conviction and that, this is your first ever offence. You have freely admitted to having committed the offence. This saved the State from calling witnesses to prove the case against you and thereby incur a lot of expenses. It also saved the court time that would have been otherwise taken if a trial were conducted. Further, I find that you were provoked though not in the legal sense by the deceased having raped your older brother’s wife some time earlier. Furthermore, I note that you have expressed remorse and sorrow for the lost of life and for the wrong you have committed against society in committing an act that is prohibited by law. These factors operate in your favour.

On the other hand, the law prohibits unlawful killing. Life is sacred and is a gift from God. No human has made a human being although it takes a man a woman to conceive a child. Here I am speaking in terms of that which causes a sperm cell and an egg cell to form into an embryo and eventually a human being. God is responsible for that process and in that respect, it is a gift from God. God the creator calls on all people to love and respect each other and live in peace and harmony. Yet the created beings assume the position of God and destroyed what he has created.

If people have any differences or arguments over any matter there are avenues for them to use to resolve them and continue to live in peace and harmony without the taking away of a precious human life. From time immemorial, Papua New Guineans have the long established customary practice of compensation to appease wrongs and continue to live in harmony. This system continues to exist even today side by side with the more formal and introduced Court system with the other law enforcement agencies to facilitate peaceful resolution of human differences in a modern Papua New Guinea. While the vast majority of our people are utilizing these avenues, there is also a growing number of people like you who are resolving to taking the law into their own hands. The Courts have made it clear in many cases already that people who take the lives of others for whatever reason must be severely dealt with. Since then the number of murder cases have not stopped. Instead they are on the increase with many people taking the law into their own hands. Society is therefore calling for severe penalties to be imposed with a view to deter other would be offenders.

Taking all of the above opposing but equally important factors into account, I consider the sentence proposed by your counsel with the agreement of the counsel for the State appropriate. Accordingly I accept the submission that, you be given a sentence of 10 years to be served in hard labour. Of course, the period of 9 months and 21 days you have already spent in custody awaiting your trial will be deducted from that term of 10 years. That will leave you with a balance of 9 years 2 months and 9 days. I order that you serve a term of 9 years, 2 months and 9 days in hard labour at the Boram CIS.
___________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor