N4561

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1295 OF 2010

THE STATE

V

MATHEW MISEK

Kimbe: Cannings J
2011: 18, 23 January

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – guilty plea – man killed his wife by cutting her savagely on the head with a bushknife, causing instant death – sentencing guidelines for wilful murder – when appropriate to impose death penalty – sentence of life imprisonment

A man pleaded guilty to the wilful murder of his wife by cutting her on the head with a bushknife, causing instant death. Immediately prior to the attack the offender had an argument with her father over payment of bride price. The State sought a sentence of life imprisonment.

Held:

(1)	The starting point for sentencing for this sort of killing, special aggravating factors, with some mitigating factors, is life imprisonment.

(2)	Mitigating factors are: the offender acted alone, not in a mob; he co-operated with the police and made early admissions of guilt; he is a first time offender; he pleaded guilty.

(3)	Aggravating factors are: this was a vicious and barbaric killing; the offender directly killed the deceased; there was a strong desire to kill.

(4)	The mitigating factors are not strong enough to warrant a sentence below the starting point, but are sufficient not to require the maximum penalty. The appropriate sentence is life imprisonment.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Chris Baurek CR 146/2009, 26.05.10
The State v Isak Wapsi (2009) N3695
The State v Joel Otariv (2011) N4409
The State v Moses Nasres CR 1365/2006, 20.04.08
The State v Seth Ujan Talil (2010) N4159

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel

F K Popeu, for the State
D Kari, for the offender

23 January, 2011

1. CANNINGS J: This is a decision on sentence for a young man, Mathew Misek, who pleaded guilty to the wilful murder of his wife, Sandra Mark. The offence was committed at Bebere Plantation, near Kimbe, at 2.00 pm on Saturday 15 May 2010. The deceased had been brought from Bialla by her father, to talk with the offender about payment of bride price that was allegedly outstanding. The offender refused to pay; there was an argument between him and his father-in-law, so the father decided to take his daughter back to Bialla. They walked away towards the bus stop, the offender followed them and then the offender approached his wife and cut her on the head three times with great force. She suffered a fractured skull and the knife penetrated the brain. She died instantly. The offender has been convicted of wilful murder, as distinct from murder, as he killed the deceased unlawfully, having the intention to cause her death.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I had already paid for my wife's bride price but her father wanted to give her away to another man. He argued with me and said four times 'if you do not want me to take her away, kill her if you want to'. That made me very angry so I killed her. I surrendered to the police immediately afterwards. I say sorry for what I did. I apologise to her family and to the Court and the community. My parents are deceased. I want to return to my village when I am released from custody.

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). It is significant that he surrendered to the police and cooperated during the police investigation and made substantial admissions at the formal police interview. However, what he claimed in allocutus that his father-in-law said to him, must be dismissed as irrelevant.

PRE-SENTENCE REPORT

5. Mathew Misek is 20 years old. He comes from the Menyamya area of Morobe Province but has been raised in West New Britain. He was employed by NBPOL as a harvester at the Bebere oil palm plantation at the time of the offence. His parents are deceased. He has had no formal education. His health is sound. He had been living with his wife for two years when the dispute arose over bride price. He claims to have paid several thousand Kina as compensation to the deceased's father but this claim is unverified. The report contains no recommendation for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari submitted that there are mitigating factors – there was no element of pre-planning, the offender confessed when interviewed by the police and continued to take responsibility for his actions by pleading guilty – which brings the case within the third category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, and a sentence in terms of a specific number of years of imprisonment would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Popeu stressed that there was a strong intention to kill, as evidenced by the offender cutting the deceased three times on the head. He gave her no chance of survival. She was entirely innocent. The argument was with her father, not with her. It was a brutal killing, in cold blood. The State's position is that life imprisonment is necessary.

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 similar offences?
•	step 4: what should the head sentence be?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should any part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided … a person liable to death may be sentenced to imprisonment for life or for any shorter term.

10. Wilful murder is one of only four crimes that attract the death penalty. The others are treason (Section 37), piracy (Section 81) and attempted piracy (Section 82). For other homicide offences (murder, manslaughter and infanticide) the maximum penalty is life imprisonment.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J and Lay J) and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J and Davani J).

The Kovi guidelines

12. In Kovi a man who stabbed his wife to death on a PMV in Port Moresby had his appeal against a sentence of life imprisonment dismissed. The Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in the following table.

TABLE 1: SENTENCING GUIDELINES FOR WILFUL MURDER DERIVED FROM THE 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-mediation or pre-planning – minimum force used – absence of strong intent to kill.	15-20 years	
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill.	20-30 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill.	Life imprisonment	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	[No details provided]	Death 	

The Ume guidelines

13. In Ume three men were convicted of the payback killing of an innocent, harmless woman at Pangalu village in the Talasea area of West New Britain. She was tortured, raped and made to die a slow and painful death. The offenders were sentenced to death by the National Court but their appeal to the Supreme Court was upheld and their sentences reduced to life imprisonment. While agreeing that it was a horrendous crime, the Supreme Court held that the trial judge committed a number of sentencing errors, eg suggesting that the death penalty was mandatory, shutting his mind to the existence of mitigating factors (the offenders were ordinary villagers of previous good character and good family and church backgrounds), failing to ascertain each offender's degree of involvement, failing to consider circumstances personal to each offender, failing to consider whether any customary considerations influenced the killing and regarding the rape of the victim as an aggravating factor without making a specific finding of fact that she was raped. As to the facts that would warrant the death penalty, and without being exhaustive, the Supreme Court suggested:

1	The killing of a child, a young or old person, or a person under some disability needing protection.

2	The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for a fee, killed in the course of carrying out their duties or for reasons to do with the performance of their duties eg a police officer, correctional officer, government officer, schoolteacher, church worker, company director or manager.

3	Killing of a leader in government or the community, for political reasons.

4	Killing of a person in the course of committing other crimes perpetrated on the victim or other persons such as rape or robbery.

5	Killing for hire.

6	Killing of two or more persons, in a single act or series of acts.

7	Killing by a prisoner in detention or custody serving a sentence for another serious offence of violence.

8	The offender has prior conviction(s) for murder.

Applying the guidelines

14. I will apply the guidelines from those two cases to arrive at a starting point. As for the Kovi guidelines this is a category 3 case: it was a cold-blooded, brutal, horrific killing of a defenceless and harmless person. There are some mitigating factors, which were highlighted by the defence counsel, so under these guidelines the starting point is life imprisonment, not the death penalty. Under the Ume guidelines, the case is not one of the eight types that the Supreme Court suggested would warrant the death penalty. Furthermore, as I said in The State v Isak Wapsi (2009) N3695 the court should hesitate to use the death penalty as a starting point if an offender has pleaded guilty. The starting point is therefore life imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR SIMILAR OFFENCES?

15. I have sentenced offenders for wilful murder in five recent cases, which are summarised in the following table.

SENTENCES FOR WILFUL MURDER, 2008-2011, CANNINGS J

No	Case	Details	Sentence	
1	The State v Moses Nasres CR 1365/2006, 20.04.08, Kimbe	Trial – the offender lay in waiting for the deceased as he walked along a track in a squatter settlement – as the deceased walked past, the offender emerged from behind some flowers and pushed an iron rod though the deceased's head, killing him instantly.	Life imprisonment
	
2	The State v Isak Wapsi (2009) N3695, Madang 	Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – the deceased was working at a fermentery and the offender approached him without warning or provocation and cut his legs with a bushknife, severing the right leg and inflicting significant damage to the left leg.	25 years
	
3	The State v Chris Baurek CR 146/2009, 26.05.10, Madang 	Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – he joined with two others in chasing the deceased and attacking him on his back with bushknives – mitigating factors included that the offender, though fit to plead, had mental and physical health issues, he also made very early admissions of guilt.	20 years	
4	The State v Seth Ujan Talil (2010) N4159	Trial – offender sentenced for two offences of wilful murder committed at a mediation gathering – not proven that the offender directly killed either of the deceased but he was convicted under both Sections 7(1)(b) and 8 of the Criminal Code as he was involved in a violent group attack and aided others in wilfully committing the murders and the offences were committed during the course of prosecuting an unlawful purpose in conjunction with others.	30 years
	
5	The State v Joel Otariv (2011) N4409	Guilty plea – while the deceased, an elderly woman, was bathing in a river, the offender approached her and raped her, then struck her over the head with a rock, then deliberately pushed her head into the water and drowned her.	Life imprisonment 

STEP 4: WHAT IS THE HEAD SENTENCE?

The approach

16. I will now assess the mitigating and aggravating features of the case. The more mitigating factors there are, the more likely the head sentence will be below the starting point range. The more aggravating factors present, the more likely the head sentence will be above the starting point.

Mitigating factors

•	The offender acted alone.
•	He cooperated with the police and made early admissions of guilt.
•	He is a first time offender.
•	He pleaded guilty.

Aggravating factors

•	This was a vicious and barbaric killing.
•	The offender inflicted three distinct, lethal cuts to the head of the deceased.
•	The offender directly killed the deceased.
•	There was a strong desire to kill.

Determination

17. The mitigating factors are not strong enough to warrant a sentence below the starting point, but are sufficient not to require the maximum penalty. This case is more serious than the cases of Wapsi, Baurek and Talil and is of similar gravity to Nasres and Otariv. The appropriate sentence is life imprisonment.

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

18. No. As the offender is sentenced to life imprisonment, it is not appropriate to deduct the pre-sentence period that he has spent in custody.

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

19. No. The pre-sentence report is not favourable and the offence is too serious to warrant any suspension. It would also not be proper to suspend any part of the head sentence as the offender has been sentenced to life imprisonment.

SENTENCE

20. Mathew Misek, having been convicted of one count of wilful murder under Section 299(1) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	Life imprisonment	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	Life imprisonment	
Amount of sentence suspended	Nil	
Time to be served in custody	Life imprisonment	
Place of custody	Lakiemata Correctional Institution	

Sentenced accordingly.
______________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender