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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 1222 OF 2007
THE STATE
V
STEVEN DONIA
(NO. 2)
Bialla: Kawi, J
2010: 12th November
2011:16th March
CRIMINAL LAW – Indictable Offence – Criminal Code – Homicide – Murder – Sections 300(1)(b)(i) – Death caused by means of an act done in the prosecution of an unlawful purpose and is of such nature as to endanger human life – Maximum penalty of life imprisonment – Factors relevant to sentence – Not guilty plea – Aggravating factors – Other than use of firearms – Sentencing guidelines and tariffs prescribed in the cases of Lawrence Simbe –v–The State [1994] PNGLR 38 and The State –v– Laura (No. 2) [1988-89] PNGLR 98 and Simon Kama –v– The State [2004] SC 740.
CRIMINAL LAW – Sentence - Sentencing guidelines expressed in Manu Kovi –v– The State [2005] SC 789 also considered, but not relevant to this case. Decision on sentence-head sentence of twenty-five (25) years fixed to be reduced by one (1) year 4 months being time spent in custody awaiting trial.
Cases cited
Simon Kama v The State [2004] SC 740
Manu Kovi v The State (2005) SC 789
Lawrence Simbe v The State [1994] PNGLR 38
The State v Laura (No. 2) (1988-89) PNGLR 98
Public Prosecutor v Bruce William Tardew [1986] PNGLR 91
Goli Golu v The State (1979) PNGLR 563
John Elipa Kalabus v The State (1988) PNGLR 193
Counsel
Mr Francis Popeu, for the State
Mr Doko Kari, for the Prisoner
16 March, 2011
1. KAWI J: Introduction: Steven Donia of Kesa Village, Walium District, Madang Province, was found guilty after a trial and convicted of the murder of one Monica Joseph, then a 12 year old girl contrary to Section 300(1)(b)(i) of the Criminal Code.
2. Having found you guilty and having convicted you, I then had you remanded in custody awaiting your sentence. This is now my judgment on your sentence.
3. You were indicted for the murder of one Monica Joseph, then a 12 year old girl, under Section 300(1)(b)(i) of the Criminal Code.
Facts
4. The proven facts which I found in your case were that Monica Joseph, then a 12 year old school age girl was at the Barema river to have her bath on a Sunday morning. She was by herself and taking advantage of her lone presence, you grabbed hold of her and forced her down on the bank of the Barema river. She tried to scream but you put your hand around and covered her mouth. You then further subdued her and sexually penetrated her vagina. She returned to her house that evening and went straight to sleep. For the next three days she started bleeding heavily from her vagina. On the third night of her bleeding she made a dying statement in front of the prisoner and her own uncle and other relatives that she was sexually penetrated by Steven Donia at the Barema river on Sunday morning and that she was going to die
5. The next day she was still in pain when she was taken to Bialla Health Centre. At the health centre she stayed for a few minutes but then died. Medical evidence during the trial of this case showed that she had suffered from massive loss of blood resulting in hypovoelemic shock. The hypovolemic shock triggered off a cardiac arrest in her which resulted in instant death.
The Law
6. Section 300(1)(b)(i) is stated in the following terms:
"Section 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) ..........
- (b) If death was caused by means of an act –
- (i) Done in the prosecution of an unlawful purpose;
- (ii) Of such a nature as to be likely to endanger human life; or .....
7. The maximum penalty prescribed for murder under any of the sub-clauses of Section 300 is imprisonment for life. That maximum penalty is however, subject to Section 19(1)(a), Section 19(1)(d) and Section 19(1)(b). Those provisions confer a discretion on the court to sentence a prisoner to a lesser term of sentence in jail or to suspend part or all of the sentence.
Sentencing Process
8. Sentencing is not an exact science. It is a discretionary process guided by some principles of law. In considering an appropriate penalty to be imposed upon you, I will take into account some of the following factors:
(1) Your antecedent report
(2) Your statement in allocotus
(3) Your mitigating and aggravating factors
(4) The Submission of defence and prosecution counsel;
(5) Sentencing guidelines and tariffs for murder cases.
(6) Those guidelines are applied to this case and a head sentence is then fixed.
(7) Consideration is given to whether part or whole of the head sentence should be suspended or not.
(8) I will also consider whether your case can be categorized as a case belonging to the worst case category or whether you as the offender can be described as a worst offender.
Antecedent Report
9. The State Prosecutor advised the court that the State does not allege any prior convictions against you, the accused. This means you are a first offender in court. You while apologizing to the court, said that this is your first time to be in conflict with the law and you were very sorry for what you did. The fact that you are a first offender in court is a factor that goes in your favour when considering the penalty to be imposed upon you.
Allocutus
10. In allocutus you apologized to the court, the victim's family and your community of Barema and Soi Oil Palm Settlements. Your apology was marked by your payment of compensation of K2,500.00 and fresh garden food plus two live pigs to the family and relatives of the deceased. You must understand that payment of some monetary compensation and pigs will not restore the life of the deceased nor will such compensatory payments resurrect her back to life. Payment of compensation is to restore peace and harmony between your people and the family and relatives of the deceased. Payment of customary compensation is therefore not a very strong mitigating factor in your favour.
Submissions by the Prisoner
11. Mr Kari for the prisoner submitted that you are 57 years old and you live and work in your block at the Soi Oil Palm block. You are married to a woman from the West New Britain Province and you have been living and working on your block for the last twenty three years. He further submitted that there were no dangerous weapons used to commit the offence. Neither was there some pre-planning involved on the part of you. He submitted that there was no force used to commit this offence. Because of these factors he submitted that there is an absence of a strong intention to do grievous bodily harm. Based on these factors, he referred to the various categories of sentencing in homicide cases as reflected in the Supreme Court decision in Manu Kovi –v– The State (2005) SC 789. He submitted that this case would clearly fall within the first category of Manu Kovi, and urged the court to impose a sentence of 15 years minus the 1 year and 3 months spent in custody.
Submissions by the State
12. Mr Popeu for the Sate on the other hand referred the court to the case of John Elipa Kalabus –v–The State [1988] PNGLR 193. He submitted that that was a case of an attempted rape on a pregnant woman where the National Court imposed life imprisonment. On appeal, the Supreme Court confirmed the sentence for life imprisonment. He submitted that the facts of this case are not as serious as that in John Elipa Kalabus. He agreed with Mr Kari that this case would fall into the first category of Manu Kovi. He argued that committing a serious indictable offence while prosecuting an unlawful purpose is a serious issue and so the court should seriously consider imposing a sentence of 15 to 17 years in prison.
Factors for and against You
13. In your favour, I take into account the fact that you have been married for the last 23 years and have been a good person in your community of Soi. In allocutus you told the court that you are suffering from chromic diarrhoea, and you depended on your medication a lot. I also accept your counsel's submission that you are not a risk or threat to your community of Soi.
14. The customary compensation payment consisting of two pigs, garden food and a monetary payment of K2,500.00 is not a strong mitigating factor, because compensation is made to restore peace and harmony between the family and relatives of the deceased and you and your people. Initially the relatives of the deceased demanded a compensation payment of K80,000.00 which in my view is very hefty and a very excessive demand. This amount was later reduced to K30,000.00 which in my view is still unreasonable and excessive. As I said earlier on, the purpose of compensation payment is to restore peace, and harmony and normalcy among the communities. Payment of compensation does not restore a life once lost.
15. In PNG today people look for all kinds of excuses to make money and a classic example of making a lot of money is when a life is lost such as in this case. Relatives of the deceased will simply take advantage of the death to press on with very unreasonable demands for compensation. This is the situation here. I accept that you had already paid K2,500.00 in cash, two live pigs and garden food. Despite consuming these items the relatives are still victimizing you by their demands which I find to be unreasonable and vindictive. I will therefore order that you and your relatives should stop paying any compensation to the relatives of the deceased from now onwards. The amount of compensation already paid is sufficient to restore peace and harmony among yourself and all compensation claims and demands is now ordered to stop. Even upon being released from any prison sentence imposed upon you, you are not to pay anymore compensation to the relatives of the deceased. The good custom of paying compensation is now openly abused and it has lost its real value and dignity.
16. Another factor which operates in your favour is that you are a first offender. This means that you have no criminal records in the past and I take this into account as a strong mitigating favour in your favour. Finally I take note of the fact that no weapons like a firearm or bush knife was used by you to threaten the victim. No evidence of any threats used by you was adduced in court.
17. Factors operating against you are that you pleaded not guilty to this charge. And a lot of time was taken up to sit and prove your case. A full criminal trial was run to determine your guilt. The State and the court wasted a lot of time and money and incurred other expenses just to sit and hear your case. In the end despite your vehement denials, the State produced enough evidence for the court to find you guilty and to convict you of murder based on all the evidence adduced before the court.
18. Another very strong factor against you is that you prosecuted an unlawful purpose which directly led to the death of the deceased. The unlawful purpose here is that you penetrated the vagina of an under aged girl, who was only 12 years old at the time. Sexually penetrating the vagina of a 12 year old girl is a serious indictable offence under Section 229A of the Criminal Code (Sexual Offence and Crimes) Against Children's) Act 2002. This young girl whom you raped was only 12 years old and you were about 55 years old when you perpetrated this heinous crime upon her.
19. The age difference between you and your victim is 43 years. I do find that you are old enough to be the victim's grandfather which is another aggravating factor against you. You applied force by covering her mouth with the palm of your hands to prevent her from screaming for help and using some degree of force to subdue her to the banks of the river before you sexually penetrated her.
20. Taking into account all factors for and against you and balancing them, I find that those against you tip the scale. However this alone does not render your case as falling within the worst offence category. Neither can it be taken as a criteria to brand you as a worst offender.
Pre-Sentence Report
21. A pre-sentence report was prepared on your behalf by the Probation Service of the Justice Department. The report sought the views of you and your relatives as well as the views of the uncles and relatives of the deceased. It also sought the views of the community leaders of Soi Oil Palm Settlement Block. Of this community leaders it sought the views of a leader involved in community policing, Mr William Kunuwei. Mr Kunuwei reported that while not condoning what you did, he said that you were a hard working member of the Soi community and you have no record of any behavioral problems in your community. He did however caution that you have a tendency to play around with little girls. And I note that it was this kind of tendency to attract the attention of little girls that has now finally landed you in turbulent hot waters.
22. Having outlined the views of both you and your relatives and the relatives of the deceased as well as independent views of the community leaders, the Report recommended that you are a good candidate for probation. It is recommended that if a non-custodial sentence is considered, then you be released on probation with strict conditions to do community oriented works.
23. I have considered the report and commend the Probation Officer, Mrs Christine Robe for a job well done. I find that the Report is well balanced with inputs from all stakeholders. I do accept the Report and take into account the views expressed therein.
Sentencing Guidelines
24. The maximum penalty for murder is life imprisonment as prescribed by Section 300. This is however subject to the sentencing discretion vested upon the court by Section 19 of the Criminal Code. Although the prescribed maximum penalty for murder is life imprisonment, there is nothing in your case which warrants the court, in imposing the maximum life imprisonment penalty upon you.
25. It is now a well settled principle of law that the courts will only consider imposing the maximum penalty for those cases categorized as falling in the "worst offence" category, and the offenders being classified as worst offenders or high risk offenders. (See Goli Golu –v– The State [1979] PNGLR 563)
26. The sentencing tariffs for homicide cases were set out in the oft quoted Supreme Court decision in the case of Manu Kovi –v– The State (2005) SC789 (per Injia DCJ, Lenalia and Lay JJ). The tariffs were listed as follows:
| CATEGORY | SENTENCING RANGE |
| Category 1 | 12 – 15 years |
|
|
|
|
|
|
| |
|
| CATEGORY | SENTENCING RANGE |
| Category 2 | 16 – 20 years |
|
|
no aggravating factors |
|
| |
|
| | |
| CATEGORY | SENTENCING RANGE |
| Category 3 | 20 – 30 years |
|
|
or rendered insignificant by the gravity of the offence |
e.g. gun or ax used.
|
| | |
| CATEGORY 4 | SENTENCING RANGE |
| Worst Case | Life Imprisonment |
mitigating factors rendered completely insignificant by the gravity of the offence. |
|
| | |
27. Going by these sentencing guidelines your case falls easily into the first category which would attract a sentence in the range of 12-15 years. The Supreme Court has emphasized that life imprisonment for murder is the starting point, when the court has to work out what the appropriate sentence is. Only when a person has pleaded guilty and there are no factors in aggravation should a sentence of the magnitude suggested by Mr Kari – around 15 years – will be considered. Here I have already found that there are serious factors in aggravation which I cannot just ignore. Also the prisoner never pleaded guilty. He put the State to task to prove its case and the State has just done that. Taking all these into account I am not satisfied that a sentence in the rage of 12-15 years is warranted in your case here.
28. The Supreme Court is clearly saying that the National Court must impose longer sentences than it has in the previous years. This will underline the gravity of the crime of murder and provide a deterrent to the commission of such serious crimes to other offenders and would be offenders.
29. Another useful sentencing guidelines in homicide cases has been laid down by the Supreme Court in The State –v–Laura (No. 2) [1988-1989] PNGLR 98, and subsequently in Lawrence Simbe –v– The State [1994] PNGLR 33.
30. The Supreme Court suggested these guidelines:
(a) Where a guilty plea with no factors in aggravation, a sentence of 12 years to 16 years.
(b) Where 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) years, to thirty (30) years.
(c) Where there is a guilty plea with aggravating factors and there is 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 serious offence, a range of sentences, from twenty-two (22) years to forty (40) years.
(f) Where there is a not guilty plea with aggravating factors other than the 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 more older persons to commit, that may warrant a sentence lower than any of the tariffs suggested above.
The Supreme Court made it clear that these suggested tariffs are guide lines only and not a conclusive set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons."
31. Going by these sentencing guidelines set by the cases of Laura (No 2) and Lawrence Simbe, your case clearly falls within category (e) which would attract a penalty of twenty-two (22) years to forty (40) years.
32. Still another very useful sentencing guidelines were set by the Supreme court in the case of Simon Kama –v– The State (2004) SC 740. These guidelines are as follows:
(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) years to thirty (30) years.
(c) Where there is a guilty plea with aggravating factors 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) years 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) years to forty 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 serious offence, a sentence of forty-one (41) years to life imprisonment.
33. Going by these guidelines, your case would easily fall within the category (e) which would attract a sentencing range from twenty-two (22) years to forty (40) years. This sentencing range of 22 to 40 years is very consistent with the range of sentences fixed in Laura No. 2 case and Lawrence Simbe's case.
Application of guidelines
34. In your case I will apply the guidelines suggested by the Supreme Court in Laura No. 2, Lawrence Simbe and Simon Kama. I apply those guidelines as follows:
35. Going by those guidelines, I consider and fix a term of twenty-five (25) years as appropriate to serve as a deterrent sentence for you and a warning to other offenders and would be offenders.
Suspension of Sentence
36. In Public Prosecutor –v- Bruce William Tardew [1986] PNGLR 91, the Supreme Court, stated that suspension of Sentences may be appropriate in three (3) broad categories. First where suspension will promote the personal deterrence, or rehabilitation of the offender. Secondly where suspension will promote the repayment or restitution of stolen monies or goods; and thirdly were imprisonment will cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.
37. In your statement in allocutus, you told the court that you are suffering from diarrhea which stops only when you take your medicine. This diarrhea does affect your physical health. You however did not produce any medical evidence to prove this. I will only reduce your sentence by a period of one (1) year and 4 months that you spent in custody awaiting your trial. I will suspend a further eight (8) months on account of your ill health.
Decision
38. A strong deterrent sentence is warranted in your case. Consequently taking into account, the time you spent in custody, I hereby sentence you to serve twenty-three years in jail to be served in hard labor at the Lakiemata Jail outside Kimbe.
__________________________________________________________________
Acting Public Prosecutor: Lawyer for the Respondent
Public Solicitor: Lawyer for the Accused
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