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State v Mangi (No 2) [2005] PGNC 12; N2993 (20 October 2005)

N2993

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 180 of 2001

THE STATE

-V-

STEVEN MUL MANGI (No. 2)

WABAG: KANDAKASI, J.
2005: 11th and 20th October

DECISION ON SENTENCE

CRIMINAL LAW- Sentence – Murder – drunken brawl – Prisoner arming himself and using a kitchen knife to inflict fatal injury to deceased – Deceased dying from injury sustained – Use of knife and involvement of alcohol considered serious aggravating factors – Conviction after trial – First time offender - Sentence of 35 years imposed.

Cases cited:
Simon Kama v. The State (01/04/04) SC740.
The State v. Vincent Simbago (unreported and unnumbered judgment delivered on 25 September 2005 in Wewak).
The State v. Laura (No. 2) [1988-89] PNGLR 98
The State v. Raphael Kimba Aki (No.2), N2082
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741
Kepa Wanege v. The State (01/04/04) SC742
The State v. Charlie Langu (No 2) (26/08/04) N2652
The State v. Tony Pandau Hahuahori (No 2) (21/02/02) N2186
The State v. Lucas Yovura (29/04/03) N2366

Counsels:

Mr. M. Ruari for the State.
Mr. D. Kari for the Accused.

20th October 2005

KANDAKASI J: Last week, this Court found you guilty on one count of murder contrary to Section 300 of the Criminal Code. After having heard you and your lawyer as well as the State’s lawyer on the kind of sentence you should receive, the Court adjourned to today for a decision on your sentence. This is now the decision of the Court on your sentence.

The Relevant Facts

The relevant facts are set out in the decision on verdict delivered on 11th October 2005. For the purposes of your sentencing however, I note that the facts are these. On the day of the alleged offence between 11:00pm and 12:00 midnight, you and Buka Leme were drinking at the Dae Won Hotel with the deceased. From there, you proceeded to the Sakalis market. A fight between you and the deceased took place. People that were there stopped your fight temporarily but started again. This repeated three times. On the third time, you and the deceased ended up in a bear hug position wherein you stabbed the deceased with a kitchen knife with which you armed yourself with. This caused the deceased to fall to the ground dragging you down as he fell. The deceased bled heavily from the wound. Some people rushed the deceased to the hospital. Unfortunately, that was a little too late. The doctor pronounced the deceased dead on arrival.

Address on Sentence

When the Court gave you the opportunity to do so, you addressed the Court on sentence before both your lawyer and that of the State made their respective submissions. In your address on sentence, you said you did not plan to kill the deceased and that the deceased died of his own actions. You also said you surrendered to police after the incident. Further, you said you paid compensation without specifying how much. You then spoke about being a first time offender, your family and being on bail and complying with bail conditions faithfully.

Your lawyer added by pointing out that you are 25 years old and that your village is within the precincts of the Wabag Township. He also pointed out that you are the Second born in a family of four children. You are educated up to grade 10. Further, your lawyer pointed out that, you were married at the time of the offence and your arrest. Your wife left you after your arrest and incarceration. Upon release on bail, you remarried and your new wife is now pregnant. Your lawyer then urged the Court to note your personal and family backgrounds, you being a first time offender and that you cooperated with the police before arriving at a decision on your sentence.

As to the kind of sentence you should receive, your lawyer drew the Court’s attention to the Supreme Court decision in Simon Kama v. The State (01/04/04) SC740. That decision, of which I was a part, provides guidelines for sentencing in murder cases. Your lawyer submitted that your case falls under category (e) per that case.

The State’s submission highlighted the fact that your conviction came after a trial, that you used a dangerous weapon to bring about the death of the deceased and that the deceased was not armed to warrant you arming yourself with a dangerous weapon and attacking the deceased. He also highlighted the fact that the offence of murder is a prevalent offence and that; your sentence should be toward the upper end of the range recommended in Simon Kama’s case.

The Offence and Sentencing Trend

Section 300 (1) (a) of the Criminal Code prescribes the offence of murder and its penalty in these terms as far as they are relevant:

"(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; or....

...

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

Recently in the case of The State v. Vincent Simbago (unreported and unnumbered judgment delivered on 25 September 2005 in Wewak), I reviewed the relevant sentencing guidelines and trend. In so doing, I noted that the Court in The State v. Laura (No. 2)[1] set out the following as the appropriate guidelines for sentencing in murder cases:

1. On a plea of guilty where there are no special aggravating factors, a sentence of six years;
2. Sentences of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused; and
3. On a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.
   

I then had regard to what I said in The State v. Raphael Kimba Aki (No.2),[2] after reviewing the sentencing trend and guidelines up to the date of that judgment in murder cases. There, I observed that:

"Clearly, the guidelines set in the Laura No. 2 case, has to be reviewed in the light of the sentencing trends in manslaughter cases as well as the increase in murder cases since those guidelines were set. The guidelines were given on the 3rd of April 1989. That was more than 11 years ago and may now be out dated especially in the number of years to be imposed for each of the categories. Going by the sentences currently being imposed in manslaughter cases, the starting period for murder cases should now be increased to 10 years or more. Thus, the guidelines in the Laura No. 2 case should be varied in the following way:

1. On a plea of guilty where there are no special aggravating factors, a sentence of ten years;
2. Sentences of less than ten years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;
3. On a plea of not guilty, a range of sentences from twelve years to fourteen years and more in a case where aggravating factors are evidenced would be appropriate."
   

I also noted that, the Supreme Court in its recent judgment in Simon Kama’s case, endorsed my above observations and guidelines and established new sentencing guidelines for murder cases. The Supreme Court did that in terms of the following at page 22:

"On the court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) and Simbe v The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d) On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence [that] may warrant a sentence lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons."

I noted further that, the same Supreme Court endorsed these guidelines and views in Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State[3] and Kepa Wanege v. The State.[4] In the former, the appellant appealed against a sentence of 50 years for murder out of a failed armed robbery. The Supreme Court dismissed that appeal on the basis that the sentence was lenient. It said the appellant should have been given the maximum of life imprisonment. In the later case, the appellant appealed against a sentence of 20 years also for murder. The Supreme Court dismissed that appeal for the same reason. There, the Court noted that, the appellant had intended in association with his father to kill the deceased who was not armed in anyway over a pre-existing land dispute. The appellant used an axe to commit the offence.

Furthermore, I noted that, since that decision of the Supreme Court, the National Court has accepted and applied these guidelines to arrive at decisions on murder cases. A recent example of that is Cannings J.’s, judgment in The State v. Charlie Langu (No 2).[5] There, his Honour noted and I agreed that:

"There has been widespread concern about the prevalence of murders and other violent crimes, particularly murders committed in the course of armed robberies or other unlawful activities. The Court was critical of the length of terms of imprisonment that have been imposed in murder cases. They have been too lenient. The Court was critical of the propensity of the Public Prosecutor to indict for murder, when the seriousness of the charge warranted a wilful murder indictment; or to indict for manslaughter instead of murder. The Court also criticised the Public Prosecutor for not using his power to cross-appeal against apparently lenient sentences. Too much of the Court’s valuable time and resources is being wasted on frivolous prisoner appeals.

The Supreme Court emphasised that life imprisonment for murder is the starting point when the Court has to work out what the appropriate sentence is. Only where a person has pleaded guilty and there are no factors in aggravation should a sentence around 12 years – be considered.

The Supreme Court is saying clearly that the National Court must impose longer sentences than it has in previous years. This will underline the gravity of the crime of murder and provide a deterrent to the commission of such serious crimes."

Applying the guidelines to the case before His Honour, His Honour imposed a sentence of 25 years on a charge of murder following a conviction after trial. The prisoner committed the offence in pursuit of an unlawful purpose, namely attacking another family from one village to the other.

Further still, I noted that before the change in the guidelines on sentencing in murder cases, I imposed a sentence of life imprisonment in The State v. Tony Pandau Hahuahori (No 2).[6] That was a case of murder out of planned armed highway robbery, which went bad. It involved the use of firearms and other dangerous weapons. Failing an armed hold up of a PMV truck, the gang used the guns they had to shoot the driver and the passengers in a bid to stop them.

The gunshots resulted in 6 people being seriously injured. They were rushed to the Wewak General Hospital at Boram for medical treatment. Of the 6 injured, 5 managed to recover. Unfortunately, one of them could not survive despite medical intervention as his brain was damaged by a gun shot injury to his head. Out of the 5 that recovered, one of them lost the total use of one of his eyes.

In imposing the sentence of life imprisonment, I noted that the accused produced no license authorizing him and his accomplishes to carry the guns and use them. Therefore, I found that he was also committing an offence when he carried a gun without license.

I said in that case that, the peace loving majority of our people are constantly calling for stiffer penalties to respond to the big increase in crimes of violence such as armed robbery, rape and murder. The courts have a constitutional and social responsibility to appropriately punish bad elements in society like you after Parliament has prescribed a maximum penalty of life imprisonment for crimes like armed robbery, murder and rape.

I then noted that, fully appreciating the responsibility placed on it, the Court in the case of the prisoner’s co-accused imposed a sentence of 30 years each in the light of their guilty pleas, not playing lead roles and having no prior convictions.

In the Vincent Simbago case itself, I imposed the maximum prescribed sentence of life imprisonment. He was the mastermind behind a planned robbery for committing further planned robberies. Whilst in the pursuit of that plan, a motor vehicle was robbed from his driver with the driver and his passengers taken hostage. One of the robbers drove the stolen vehicle at high speed, resulting in a fatal motor vehicle accident, which caused the death of one of the victim hostages.

Sentence in Your Case

Before arriving at a decision on your sentence, I note and take into account all that you have put to the Court in your own address on sentence, in so far as they are relevant. In particular, I note that you are a first time offender and that you have cooperated with the police. I also note that your have faithfully kept the terms of your bail conditions. Further, I note that any sentence the Court imposes against you will adversely affect your immediate family and relations to the extent that you will be removed from them. However, this is not a factor that can operate in your favour because as the case authorities for example that of The State v. Lucas Yovura[7] makes it clear that is a direct consequence of your own actions. As such, this factor cannot be a factor in your favour.

Although you said something about having paid compensation, there is nothing more that confirms the payment of compensation, how much was it and what amounts of the compensation you personally contributed. The law allows for payment of compensation to operate in mitigation of an offender’s sentence. However, this can happen only when there is proper evidence of it before the Court and the Court considers it is appropriate to take that into account.

Against the above are a number of factors against you. Firstly, the Court found you guilty after a trial. This saw the State incurring extra cost and the Court spending more time to arrive at your guilt and conviction. Indeed, I find that your trial was a waste of the Court’s time and that means public funds, particularly when you had no witness to call to support you in your defence.

Secondly, you used a kitchen knife to inflict a serious wound to the deceased. You did not come across the knife accidentally or by chance or opportunity in the course of your various fights with the deceased. Instead, you went to a house and got yourself armed with that dangerous weapon. The use of such offensive and dangerous weapons is very prevalent and common in this province and in most parts of the country. Hence, this alone calls for a sterner sentence to serve both as a personal deterrent to you and a general deterrence to the public at large.

Thirdly, you were aged beyond 20 at the time of committing the offence. That meant that you were in a better position to appreciate that arming yourself and using a dangerous weapon against the deceased could result in the death of the deceased. Despite that, you proceeded to use it in the way you did.

Fourthly, you are educated up to grade 10 and come from within the precincts of the Wabag Township. You hence, had ready or easy access to police, the courts and other means of peaceful resolution of disputes. Instead of using any of these peaceful means, you resorted to a violent means to self-help yourself. That resulted in the death of the deceased. Your actions speak in tones of your disrespect for law and order and the lawful and peaceful means of resolving human conflicts. Your conduct was also a demonstration of disrespect for authority in this province’s capital and disrespect for human life. Commission of most violent offences such as the one you committed in the towns, cities and the villages of our beautiful country is prevalent. Thus, the duty is on the courts to impose sterner sentences with a view to deterring these kinds of behaviour.

Finally, the fight between you and the deceased was over alcohol, a substance that is prohibited in this province. The ban was placed, I believe because of the large number of social problems liquor or alcohol was responsible for in this province as is the case elsewhere in our country. Despite the ban and the many problems alcohol brings upon individuals, families and the whole societies, many people of your type continue to consume alcohol and end up creating a lot of trouble including commission of offences like murder and other offences. This is yet another factor for the imposition of a sterner sentence against you for your personal and generally, the deterrence of other would be offenders.

I accept both yours and that of the State’s submission that these factors in your aggravation place your case in category (e) per the Simon Kama guidelines. The Supreme Court recommended sentences for murder cases falling under category (e) from a low of 22 years to the 40 years imprisonment. The Supreme Court arrived at that recommendation after carefully reviewing all of the previous sentences and principles for sentencing in murder cases and clearly pointed out the reasons for an increase in the sentences. The principle reasoning of the Supreme Court, which I accept without reservation, is the fact that human life is precious and there is no classification of life. Despite that, many offenders in PNG have taken life to be very cheap by readily attacking and killing others rather than using the available lawful means and or avenues to resolve any difference they might have with the other person peacefully. The number of senseless killing has increased over the years and that the Courts must now impose, sentences that have a deterrent element.

Having regard to all of the above, and in particular the particular circumstances and the way in which you committed the offence, I consider a sentence somewhere above the lower end but below the upper range of the sentence recommended in category (e) of the Simon Kama guidelines is appropriate. Accordingly, I impose a sentence of 35 years in hard labour at the Baisu Correction Service. Of that head sentence, the time you have already spent in custody awaiting your trial and sentence shall be deducted and you will serve the balance. A warrant of commitment in those terms shall issue forthwith.
_____________________
Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor

^[1] [1988-89] PNGLR 98.
^[2] (Unreported Judgment) N2082.
^[3] (01/04/04) SC741, per Sevua, Kandakasi, Lenalia JJ.
^[4] (01/04/04) SC742, per Sevua, Kandakasi, Lenalia JJ.
^[5] (26/08/04) N2652.
^[6] (21/02/02) N2186.
^[7] (29/04/03) N2366.