N5050
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1303 0F 2006

THE STATE

V

KEVIN JEFFO

Kimbe: Cannings J
2007: 9, 24 August

CRIMINAL LAW – sentence – murder – offender, drunk, killed victim by suddenly slashing him with kitchen knife – vicious, surprise attack on an innocent, unarmed man – guilty plea.

A man pleaded guilty to murder. He had been drinking and became angered by stories that his brother-in-law had been assaulting his wife, who was the offender's sister. The offender armed himself with a kitchen knife, went to his brother-in-law's house in the early part of the night, called for him from outside and when he came out to see what was going on, stabbed him with the knife, killing him.

Held:

(1)	The starting point for sentencing for this sort of murder (a vicious attack, with strong desire to do grievous bodily harm) is 20 to 30 years imprisonment.

(2)	Mitigating factors are: only one attacker; de facto provocation; surrendered to police; co-operated with police; compensation, peace and reconciliation; pleaded guilty; first-time offender; permanent house burned down, displaced from block.

(3)	A sentence of 18 years was imposed. The pre-sentence period in custody was deducted and four years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
Simon Kama v The State (2004) SC740
The State v David Yakuye Daniel (2005) N2890
The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868
The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06
The State v Kevin Wakore CR 378/2003, 16.08.07
The State v Sebastian Justin Kelly CR 75/2001, 20.05.05

SENTENCE

This was a judgment on sentence for murder.

Counsel

F Popeu, for the State
F Kua, for the offender

24th August, 2007 

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of murder arising from the following facts. On the morning of 14 July 2006 the offender, Kevin Jeffo, who lives at Sarakolok oil palm settlement, near Kimbe, came into town with his brother-in-law. They were drinking beer. He went home between 6.00 and 7.00 pm, drunk, and was talking with his family about various problems his sister was having with her husband, Kenny August. Kevin became angered by stories that Kenny had been assaulting his sister. Kevin got a kitchen knife and went to Kenny's place, which is nearby. By that stage it was the early part of the night. Kevin called for Kenny, asking why he was in the habit of assaulting his wife (Kevin's sister). Kenny came out with a lamp to see what was going on. As he moved to the last step, Kevin pulled out the knife, swung it at Kenny, stabbed him and killed him. The post-mortem report shows that the knife penetrated the chest, entered his heart, causing Kenny August to die from internal bleeding. Kevin did not intend to kill Kenny but intended to do him grievous bodily harm.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender stated:

I apologise for what happened and I am sorry about the trial not going ahead. [A reference to an earlier court proceeding at which the offender pleaded not guilty.] Again I apologise for what I have done.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). He co-operated with the police and made admissions in his police interview. He said that the reason he attacked Kenny was that Kenny had been married to his sister for ten years and still had not paid bride price but was in the habit of assaulting her. He said he wanted to talk about those things with Kenny and he only took the knife for protection as he (Kevin) has poor eyesight and in case Kenny wanted to fight him. Kevin surrendered to the police after the incident.

PRE-SENTENCE REPORT

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

Kevin Jeffo: male, aged 32.
Residence: originally Sarakolok, Section 7, Block 972; now living at Section 4, Block 884 with uncle (father's brother) because of trouble.
Family background: originally from Samentiki, Finschhafen, Morobe Province – mother still alive, father deceased – Jeffo is the fifth-born in a family of six.
Marital status: happily married with three children.
Education: Grade 10, Hoskins Secondary School (1990) – holds certificate in Basic Computing, WNB Computer School (1994).
Employment: Worked as computer operator at NBPOL from 1996 to 2001, then resigned – currently unemployed.
Health: has eye problem but otherwise OK.
Financial status: earns income from sale of oil palm.
Plans: will most likely go back to Finschhafen as they cannot go back to the block after the trouble.
Offender's family's attitude: uncle and sister supportive.
Religion: Lutheran.
Victim's family's attitude: wants offender to spend some time in jail before considering a suspended sentence.
Attitude of community: not a trouble maker – shocked and surprised by crime committed.
Assessment: friendly and fearless – not a threat to community.
Recommendation: discretion of the court for sentencing purposes.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kua highlighted the guilty plea, that there was an element of de facto provocation provided by the deceased's beating of the offender's sister, that the offender has no criminal record, that compensation has been paid and that the offender and his family have already suffered because of reprisals taken by the deceased's family. Twelve years would be an appropriate sentence, he submitted.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that a sentence within the range of 16 to 20 years should be imposed, in compliance with existing Supreme Court sentencing guidelines. He agreed that the actions of the deceased's family against the offender's family is a mitigating factor.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. The Supreme Court has in recent times laid down sentencing guidelines for murder, in two cases, Simon Kama v The State (2004) SC740 and Manu Kovi v The State (2005) SC789. As Manu Kovi's case is the more recent decision, I will follow it. Its starting point ranges are summarised in the table below.

SENTENCING GUIDELINES FOR MURDER FROM KOVI'S CASE

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years	
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated 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.	Life imprisonment	

11. Both counsel suggested that this case falls within category 2. However, I consider that it was a very vicious and surprise attack on a man who was unarmed. The manner of the attack on the deceased showed that the offender had a strong desire to do grievous bodily harm. I place this case within category 3, so the starting point is 20 to 30 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. Before I fix a sentence, I will consider other murder sentences I have handed down recently in West New Britain. These cases are shown in table 2 below.

NATIONAL COURT SENTENCES FOR MURDER, 2005-2007

No	Case	Details	Sentence	
1	The State v Sebastian Justin Kelly CR 75/2001, 20.05.05	Guilty plea – vicious attack on a relative who was asleep and unarmed – Bialla – offender used a bushknife – suggestion that the offender was mentally unbalanced.	20 years
	
2	The State v David Yakuye Daniel (2005) N2890	Trial – husband attacked the deceased (his wife) over suspected infidelity on her part – Kandrian, WNBP – vicious attack, he stabbed her several times.	25 years
	
3	The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868	Trial (first offender) and guilty plea (second offender) – police officer shot dead in course of armed robbery committed by a gang of which the offenders were members – neither offender fired any shots – convicted under prosecution of common purpose provisions of the Criminal Code Section 8.	15 years,
9 years
	
4	The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06	Trial – two men murdered a man they suspected had killed a friend of theirs by sorcery – mob attack – the victim was bashed to death.	25 years
	
5	The State v Kevin Wakore CR 378/2003, 16.08.07	Plea – there was a dispute between clans in a village after a man was alleged to have committed adultery with another man's wife – two clans had a confrontation and in the course of it the offender shot dead the victim.	12 years

STEP 4: WHAT IS THE HEAD SENTENCE?

13. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1	Did the offender not directly kill the deceased? No, he killed him directly and almost instantly.

2	Was just one person involved in the attack? Yes.

3	Was there some intervening cause of death? No.

4	Did the offender not set out to hurt anyone? No.

5	Did the deceased or any other person provoke the offender in 'the non-legal sense', eg did the deceased abuse or assault them? Yes. The offender said he heard stories about his brother-in-law, the deceased, beating up his sister.

6	Did the deceased have a pre-existing condition making him susceptible to serious or fatal injury by a moderate blow? No.

7	Can the attack on the deceased be classed as 'not vicious'? No. It was extremely vicious. It was a surprise attack on a person who was at the relevant time innocent and unarmed.

8	Can the death of the deceased be regarded as an unforeseeable consequence of the activity that the offender was involved in? No.

9	Did the offender play a relatively minor role in the activity that led to the death? No.

10	Did the offender give himself up after the incident? Yes.

11	Did the offender cooperate with the police in their investigations? Yes. He made admissions.

12	Has the offender done anything tangible towards repairing his wrong? Yes. Compensation has been paid and there has been a concerted attempt at peace and reconciliation, as explained in the pre-sentence report.

13	Did the offender plead guilty? Yes.

14	Has the offender genuinely expressed remorse? Neutral. He did not actually say he was sorry in his allocutus but his remorse can be inferred from the payment of compensation.

15	Is this his first offence? Yes.

16	Can the offender be regarded as youthful or are his personal circumstances such that they should mitigate the sentence? Neutral.

17	Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Yes. It appears that the offender's family's permanent house has been set on fire in a reprisal attack by the family and relatives of the deceased even though some compensation had been paid. The offender's family have also been displaced from their block due to the reprisals taken by the family and relatives of the deceased. The offender's family is likely to lose their block as it may go as compensation to the family and relatives of the deceased.

14. After weighing all these factors and bearing in mind that there are eight mitigating factors and seven aggravating factors, the head sentence should be below the starting point range. I impose a head sentence of 18 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

15. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one year, one month, one week, three days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

16. Because of the concerted efforts made by the offender's relatives towards peace and reconciliation and the reprisal attacks on the offender's family, I will suspend four years of the sentence on the following conditions:

(a)	must reside at Sarakolok or some other place nominated by the National Court and nowhere else except with the written approval of the National Court;

(b)	must not leave WNB Province without the written approval of the National Court;

(c)	must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(d)	must attend a church to be approved by the National Court every week for service and worship and assist the church in its community activities;

(e)	must report to the senior Probation Officer at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;

(f)	must not consume alcohol or drugs;

(g)	must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim's family;

(h)	must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;

(i)	if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

17. Kevin Jeffo, having been convicted of one count of murder, is sentenced as follows:

Length of sentence imposed	18 years	
Pre-sentence period to be deducted	1 year, 1 month, 1 week, 3 days	
Resultant length of sentence to be served	16 years, 10 months, 2 weeks, 4 days	
Amount of sentence suspended	4 years	
Time to be served in custody	12 years, 10 months, 2 weeks, 4 days	

Sentenced accordingly.
___________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender