N4456

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 408 OF 2010

THE STATE

V

TWO JUVENILES, "FSD" & "SW"

Madang: Cannings J
2011: 13 September, 3, 17 November

CRIMINAL LAW – sentences after pleas of guilty – murder and manslaughter– Criminal Code, Sections 300 and 302 – two juvenile offenders, one incident, one death, one indictment – sentences of 14 years (murder) and 8 years (manslaughter)

Two juveniles, aged 14 at the time of the offence and 16 at the time of sentence, pleaded guilty to homicide charges resulting from an incident in which they both assaulted the victim with their fists in a surprise attack, and one of them stabbed the victim with a kitchen knife, killing him instantly. The juvenile who stabbed the victim was convicted of murder and the other juvenile was convicted of manslaughter.

Held:

(1)	Though the offences were committed in the same incident and the offenders have been dealt with in the same proceedings and have been dealt with as co-accused and their age and personal circumstances are similar, each offender must be sentenced separately as they have been convicted of different offences and had different degrees of involvement in the incident.

(2)	Sentences of 14 years and 8 years imprisonment were imposed for murder and manslaughter respectively.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v David Solomon Lingen CR No 1292/2009, 20.11.09
The State v Isaac Ulul CR No 203 of 2007, 16.10.07
The State v Jacob Aku Matai (2011) N4256
The State v Julius Kembu CR No 288/2009, 23.04.09
The State v Rex Damun (2011) N4295

SENTENCE

This was a judgment on sentence for two juvenile offenders for murder and manslaughter.

Counsel

A Kupmain, for the State
D Joseph, for the offenders

17 November, 2011

1. CANNINGS J: This is a decision on sentence for two juveniles who killed an 18-year-old boy, Melchior Poto, in an incident at the Ramu Sugar compound, Madang Province, on Wednesday 6 January 2010. The offenders were aged 14 at the time. They are now aged 16. The court was closed to the public for their case in accordance with the provisions of the Juvenile Courts Act 1991. I authorise the publication of this judgment under Section 28(1)(a) of the Juvenile Courts Act. However, the names of the juvenile offenders and other particulars likely to lead to their identification are not published. They are referred to as "FSD" and "SW".

2. There was one death and one incident but the offenders were indicted on and pleaded guilty to and have been convicted of different charges because of their different degrees of involvement. FSD has been convicted of one count of murder and SW has been convicted of one count of manslaughter. The offences were committed in the following circumstances:

•	At 8.00 pm FSD went for a stroll, by himself, around the residential area where he and SW and the deceased lived. They all knew each other well.
•	FSD met the deceased and a friend of the deceased, both of whom had been drinking alcohol, and the deceased said some insulting words to FSD.
•	FSD took offence at what the deceased said to him and went away and told his friend, SW, what the deceased had said and they agreed that they would fight the deceased.
•	Shortly afterwards FSD and SW went in search of the deceased, found him walking along a track with the friend with whom he had been drinking, and staged a surprise assault on him.
•	FSD and SW both punched the deceased before the deceased's friend could assist him, and then FSD stabbed the deceased in his ribs with a kitchen knife, inflicting a 15-cm deep wound that caused heavy blood loss and consequently his almost instant death.

3. FSD has been convicted of murder under Section 300(1)(a) of the Criminal Code as he directly killed the deceased, intending to cause him grievous bodily harm. SW had no such intention but because he aided the person who actually killed the deceased he is deemed to have unlawfully killed the deceased and is by virtue of Section 7(1)(c) of the Criminal Code guilty of the less serious offence of manslaughter under Section 302 of the Criminal Code.

ANTECEDENTS

4. Neither offender has any prior convictions.

ALLOCUTUS

5. Each offender was given the opportunity to address the court.

FSD: I apologise in the eyes of God for what I have done and I also apologise to the parents of the deceased for what I did.

SW: I apologise to God and to the Court. I say sorry to Melchior's parents and his family. I ask for the mercy of the court and a non-custodial sentence.

OTHER MATTERS OF FACT

6. As the offenders have pleaded guilty they 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). This is a case in which there was some de facto provocation as explained in the facts to which the offenders pleaded guilty: the deceased, who was under the influence of alcohol, said insulting words to FSD. It is not known what the insulting words were. This did not emerge from the evidence. But because the offenders have pleaded guilty they are to be given the benefit of the doubt: it is presumed that the words were particularly offensive or hurtful and uttered in such a way as to cause FSD to become very angry. The words provoked him. This does not excuse or condone what the offenders did, but it helps explain how the incident happened and it is something that mitigates the seriousness of the offence. Other mitigating factors are that the offenders, with the assistance of their parents, surrendered to the police and cooperated at all stages of the police investigation, including making comprehensive admissions in their records of interview.

PRE-SENTENCE REPORTS

7. Pre-sentence reports for each offender were prepared by the Madang branch of the Community-Based Corrections and Rehabilitation Service. They each have a similar background and personal circumstances. FSD and SW, both now aged 16 years, are friends who have grown up together. Their fathers were employed at Ramu Sugar but because of the incident have lost their jobs. Both offenders have lived most of their life at Ramu. They had each completed grade 7 in 2009 and were preparing for grade 8 when this incident interrupted their schooling. Their parents are alive and have had to move to Madang town. Each offender has been raised in a large family and they are each strongly supported by their parents. Their health is sound. They are each anxious to continue their education. Neither had any bad record at school or in the local community before this incident. Their parents arranged payment of bel kol of K12,800.00 to the deceased's parents and family. Progressive payments were made in 2010. There is conflicting evidence on the question of whether compensation, in addition to bel kol, is being sought. The offenders' parents suggest that there was a compensation demand in the order of K100,000.00 but the deceased's parents deny this. Their attitude – and I find that this is the true state of affairs – is that they want no more payments. They want to see the offenders punished with life imprisonment. The pre-sentence reports do not recommend probation.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Joseph submitted that there were many mitigating aspects of the case: the guilty pleas, they are both first-time offenders, they have expressed remorse, substantial bel kol has been paid, the de facto provocation, a high level of co-operation with police, there was only one stab wound, it was a spontaneous incident, there was no strong desire to do grievous bodily harm. The mitigating factors warrant a total sentence of no more than 12 years for FSB and 8 years for SW.

SUBMISSIONS BY THE STATE

9. Mr Kupmain submitted that because of the use of a lethal weapon, the sentence for murder should be in the range of 16 to 20 years and the sentence for manslaughter, which falls into the least serious category due to SW's lesser degree of involvement, should be in the range of 8 to 12 years. Custodial sentences are required.

DECISION MAKING PROCESS

10. Though the offences committed by FSD and SW were committed against the same victim in the same incident and the offenders have been dealt with in the same proceedings and have been dealt with as co-accused and their age and personal circumstances are similar, each offender must be sentenced separately as they have been convicted of different offences and had different degrees of involvement in the incident. The same decision-making process will be applied to each:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what sentences have been imposed for similar 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?

"FSD": SENTENCE FOR MURDER

Step 1: what is the maximum penalty?

11. 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?

12. I will apply the sentencing guidelines for murder in the leading Supreme Court case of Manu Kovi v The State (2005) SC789 set out in the following table:

SENTENCING GUIDELINES FOR MURDER
FROM SUPREME COURT'S DECISION IN MANU 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	

13. I accept Mr Kupmain's submission that this is a category 2 case. There was one stab wound only, and as the offender has pleaded guilty, he may be given the benefit of the doubt on this issue: there was no strong intent to do grievous bodily harm. There was, however, some pre-planning and an element of viciousness. The starting point range is 16 to 20 years.

Step 3: what other sentences have been imposed recently for equivalent offences?

14. Three recent cases I have decided provide useful precedents. In the Kimbe case of The State v Julius Kembu CR No 288/2009, 23.04.09 the offender pleaded guilty to the murder of a man who he believed had threatened his wife, had sex with her and made her pregnant. The offender, together with four others, staged a planned attack on the deceased who was busy off-loading cargo from a vehicle when he was attacked. The offender cut him on the back with a bushknife and the deceased ran towards the beach. The offender and the others chased him, with their knives. The wounds inflicted on the deceased were serious and he died through loss of blood from those injuries. It was dealt with as a category 3 case according to the Kovi guidelines but I imposed a sentence of 18 years, which was below the starting point range of 20 to 30 years because of the strong element of de facto provocation and evidence of reconciliation between the offender and the deceased's relatives.

15. In the Wewak case of The State v David Solomon Lingen CR No 1292/2009, 20.11.09 the offender pleaded guilty to the murder of a man who had over a long period ill-treated him. The offender approached the deceased and attacked him with a bushknife on the right side of the neck and face. The wounds inflicted on the deceased were serious and he died through loss of blood from those injuries. It was dealt with as a category 3 case according to the Kovi guidelines but I imposed a sentence of 18 years, which was below the starting point range of 20 to 30 years because of a strong element of de facto provocation. It was also significant that the offender acted alone, not in a group.

16. In the Madang case of The State v Jacob Aku Matai (2011) N4256 the offender pleaded guilty to murdering his brother-in-law by cutting him with a bushknife several times on various parts of his body, while the deceased was working in a plantation. It was a vicious attack, arising out of long running tension between the offender and the deceased. The sentence was 22 years imprisonment.

Step 4: what is the head sentence?

17. To determine the head sentence I will focus on the starting point range of 16 to 20 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be at the low end of or below the starting point range. The more aggravating factors present, the more likely the head sentence will be at the top end or above the starting point range. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

18. Mitigating factors are:

•	though there was an element of planning it was essentially a spontaneous incident;
•	there was a strong element of de facto provocation due to the insulting words used by the deceased against the offender;
•	he is a first-time offender;
•	he pleaded guilty;
•	he has expressed some remorse (although it must be said that it was rather moderate);
•	substantial bel kol has been paid;
•	high level of co-operation with police;
•	there was only one stab wound;
•	he was only 14 years old at the time, and is still a juvenile.

19. Aggravating factors are:

•	the offender did not act alone;
•	it was a vicious attack, involving a deep wound to a vulnerable part of the body;
•	the use of a knife, an offensive and lethal weapon.

20. There are more mitigating factors than aggravating factors. Putting aside for a moment the offender's juvenile status, the circumstances of the incident are of similar seriousness to those in the cases of Kembu and Lingen which resulted in sentences of 16 or 18 years and much less serious than Matai, where the sentence was 22 years. The juvenile status of the offender must be given special weight. I consider that the appropriate sentence is 14 years imprisonment.

Step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?

21. 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 three months.

Step 6: should any part of the sentence be suspended?

22. There are many favourable matters in the pre-sentence report that have already been taken into account for the purposes of fixing the head sentence. The deceased's parents and relatives are not in favour of suspension. I do not find a good case for suspension. Therefore no part of the sentence will be suspended.

 "SW": SENTENCE FOR MANSLAUGHTER

Step 1: what is the maximum penalty?

23. The maximum penalty for manslaughter under Section 302 of the Criminal Code is life imprisonment. The court has the discretion to impose lesser or alternative sentences under Section 19 of the Criminal Code.

Step 2: what is a proper starting point?

24. I accept Mr Joseph's submission that under the Supreme Court sentencing guidelines in Manu Kovi v The State (2005) SC789 and because of the low degree of involvement of the offender in the killing of the deceased, this case falls within category No 1, and the starting point is 8 to 12 years imprisonment.

Step 3: what other sentences have been imposed recently for equivalent offences?

25. Two recent manslaughter cases in Madang, where there was strong de facto provocation, use of an offensive weapon and a guilty plea, provide useful points of comparison. In The State v Isaac Ulul CR No 203 of 2007, 16.10.07 the deceased provided provocation by drinking home brew with the offender's young son, which angered the offender, and then chasing the offender, his wife and children with an axe and damaging his house. The offender responded by cutting the deceased on the head with a bushknife, killing him. The sentence was 10 years imprisonment. In The State v Rex Damun (2011) N4295 the offender was told by his wife that the deceased had attempted to rape her, so the offender armed himself with a bushknife and went after the deceased, found him and confronted him. The deceased argued with the offender and tried to fight him, but the offender cut him with the bushknife, inflicting multiple wounds from which he died. The sentence was 10 years imprisonment.

Step 4: what is the head sentence?

26. The same sort of mitigating and aggravating factors highlighted in relation to the sentence for FSD apply here. There are more mitigating factors than aggravating factors. Putting aside for a moment the offender's juvenile status, the circumstances of the incident, especially having regard to the nature and degree of involvement of SW in the death, make this case less serious than the precedents referred to. The juvenile status of the offender must be given special weight. The appropriate sentence is eight years imprisonment.

Step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?

27. 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 three months.

Step 6: should any part of the sentence be suspended?

28. There is no reason that SW should be dealt with differently to FSD. None of the sentence will be suspended.

SENTENCE SUMMARY FOR EACH OFFENDER

29. The juvenile "FSD", having been convicted of one count of murder under Section 300(1)(a) of the Criminal Code, and the juvenile "SW", having been convicted of one count of manslaughter under Section 302 of the Criminal Code, are sentenced as follows:

Details	"FSD"	"SW"	
Length of total sentence imposed	14 years	8 years	
Pre-sentence period to be deducted	3 months	3 months	
Resultant length of sentence 
to be served	13 years, 
 9 months	7 years, 
 9 months	
Amount of sentence
suspended	Nil	Nil	
Time to be served 
in custody	13 years, 
 9 months	7 years, 
 9 months	
Place 
of custody	Beon 
Correctional Institution, and then to Erap Juvenile Correctional Institution (Boys Town), within 30 days after date of sentence	Beon 
Correctional Institution, and then to Erap Juvenile Correctional Institution (Boys Town), within 30 days after date of sentence	

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