N4908

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 875 OF 2008

THE STATE

V

TOBIAS UMO KAMO

Waigani: Kawi, J
2010: 19th, 22nd March
23rd April
2011: 28th March

CRIMINAL LAW – Indictable offence – Criminal Code section 299(1) - Homicide etc - Wilful murder trial –Voir Dire- Objection to the tender of evidence 

Facts

The accused was indicted on one count of wilful murder contrary to section 299(1) of the Criminal Code. He objected to the tender of the Confessional Statement and the Record of Interview on grounds that the admissions contained in those statements were made under circumstances of unfairness and not made voluntarily. Following a voir dire trial, the objection on the tender of the Confessional Statement was rejected and the Confessional Statement was tendered into Court but the Objection on the Record of Interview was upheld and the admission of the Record of Interview was upheld and the tender of the Record of Interview was rejected. Following the rejection of the record of Interview the accused then decided to change his earlier not guilty plea to a plea of guilty. He was then re-arraigned. I entered a provisional plea of guilty and considering his confessional statement and the State evidence as it stood before me, I confirmed the guilty plea. This is now my judgement on sentence.

Cases cited:

Goli Golu v The State [1979] PNGLR 563
John Elipa Kalabus v The State [1988] PNGLR 193
Lawrence Simbe v The State [1994] PNGLR 33
Manu Kovi v The State (2005) SC 789
Public Prosecutor v Bruce William Tardew [1986] PNGLR 91
Steven Loke Ume Case
Simon Kama v The State (2004) SC 740
The State v Charlie Langu (No. 2) 2004
The State v Laura (No. 2 [1988-1989] PNGLR 98

Counsel:

Mr. P. Kaluwin, for the State 
Mr. R. Yombon and Ms R Kwayaila, for the Accused

28 March, 2011

DECISION ON SENTENCE

1. KAWI, J: 	The accused Tobias Umo Kamo is from Kalipa village, Tapini, Central Province. He is charged with one count of wilful murder of one Keru Kamo on the 8th March 2008 at Kalipa village, Tapini, in Central Province contrary to section 299 (1) Criminal Code. On arraignment the accused initially pleaded not guilty to the charge of wilful murder and the trial commenced with the prosecution calling two Police witnesses to give evidence. 

2. The first State witness was Sergeant Rara Didei, the officer in charge of Tapini Police Station. The other State witness was Detective Senior Constable Raymond Bayamo who is the Police Investigator and arresting officer in this case. During the evidence of Senior Constable Bayamo, the State Prosecutor, Mr. Kaluwin sought to tender through him evidence of two documents:

(a)	The Confessional Statement.

(b)	The accused's Record of Interview. 

3. The Confessional Statement was allegedly signed by the accused after he was assaulted and threatened initially by Sergeant Didei at the Tapini Police Station and subsequently by Detective Senior Constable Raymond Boyamo at the Six (6) Mile Police Station which he alleges compelled him to sign the Confessional Statement out of fear of being assaulted or injured with a knife.

4. When the State sought to tender these two documents, learned Counsel for the defence, Mr Yombon strongly objected to the tender on the basis that the Statement recorded in these two documents was made involuntarily and in unfair circumstances. 

5. The Confessional Statement and the Record of Interview allegedly contain incriminating statements admitting to the wilful murder. 

6. Following a voir dire, the tender of the Confessional Statement into evidence was allowed, but the tender of the Record of Interview into evidence was rejected. Following this the accused then changed his earlier not guilty plea, and pleaded one of guilty.
Here is now my judgement on his sentence. 

Issue

7. The sole issue for determination by the court is what is the sentence that the court should impose upon you?

8. In determining this issue, it must be noted from the outset that sentencing is not an exact mathematical science where fixed formulas are applied to find fixed solutions to problems. Rather sentencing is a discretionary process guided by several legal principles to achieve one or more objectives of sentencing. To arrive at these objectives, the court is usually guided by quite a number of principles. And one of the principles I take into account is that I must take into account mitigating factors operating in your favour and the aggravating factors operating against you. Some aggravating factors may be mildly aggravating while others may be strongly aggravating. The same goes for mitigating factors.
 
Allocutus

9. When the allocutus was administered upon you, you expressed sorrow and begged the court for mercy and leniency in sentencing you. You pleaded the court to give you a suspended sentence so that you can go home and pay compensation to the family and relatives of the deceased as well as to reconcile with them.

Sentencing Process

10. 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.

Classification of your offence

11. I will now 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. The offence of wilful murder which you committed is a very serious offence as it involves a premature termination of precious human life. I cannot describe you as a serial offender nor can I describe this as belonging to the worst category of cases. In my view whilst this is a one off killing, the weapon you used, an axe which is a dangerous lethal weapon, to attack a defenseless man shows clearly that you cared little for the sanctity and sacredness for human life. For this reason alone, I will classify you as a person who is dangerous to your community. I will therefore be very reluctant to accede to your request made in allocutus to release you to your community, to reconcile and make peace with the relatives of the family and relatives of the deceased. 

Antecedent Report

12. After your guilty plea was accepted by the court, the learned State Prosecutor informed the Court that the State does not allege any prior convictions against you. This simply means that you have never been in conflict with the law before and you have never been before a court of law before the commission of this offence.

Mitigating factors

13. The Supreme Court in Steven Loke Ume Case, described mitigating factors in this way:

 "As for mitigating factors, relevant factors to be considered include the offender's youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first offender, guilty plea, early confession to police, remorse, poor health and restitution or compensation".

14. The Supreme Court went on further to say that:

"there is however a distinction between extenuating circumstances and mitigating factors. Although both have the same desired effect of reducing the punishment, extenuating circumstances, relate to the circumstances of the offence which reduces or diminishes the gravity of the offence whereas mitigating factors are usually unrelated to the circumstances of the offence. In murder offences, a distinction must be maintained between these two matters because the weight to be given to these two matters may vary. In murder offences as with all serious crimes of violence, the gravity of the offence determined in light of relevant aggravating factors may reduce the weight to be given to extenuating circumstances and mitigating factors and in some cases, rendered completely irrelevant": John Elipa Kalabus v The State [1988]PNGLR 193.Operating in favor of the accused, are the following factors:

The prisoner is a first time offender.

He expressed remorse and begged the court's mercy when the allocotus was administered.

He voluntarily surrounded to Police after senselessly killing the deceased.

He is a member of the Catholic Faith.

He was a good law abiding citizen before the commission of this senseless killing.

The prisoner is not a sophisticated person. He is a simple villager who was educated up to grade 2 in Primary school.

Submissions by the Prisoner

15. Mr. Kari for the prisoner submitted that you are in your 40s. You are married with two wives and therefore have a responsibility to maintain both women and the children from those two unions.

16. He submitted that there whilst a dangerous lethal weapon was used it was done as a result of a de facto provocation which existed when the deceased killed the pig of the accused. It was further submitted that neither was this a premeditated killing nor was there some pre-planning on the part of the accused. 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 time spent in custody.

Submissions by the State

17. Mr. Kaluwin 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

18. 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 allocotus you told the court that you are suffering from chronic diarrhea, 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.

19. 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. 

20. 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.

21. 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 factor 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.

22. 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.

23. 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. 

24. 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. 

25. 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

26. 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.

27. 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.

28. 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

29. 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.

30. 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)

31. 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
	
•	Plea	•	No weapons used	
•	Ordinary Cases	•	Little or no pre-planning	
•	Mitigating factors with no aggravating factors	•	Minimum force used	
	•	Absence of strong intent to do GBH	

CATEGORY	SENTENCING RANGE
	
Category 2	16 – 20 years
	
•	Trial	•	No strong intent to do GBH	
•	Mitigating factors with
no aggravating factors	•	Weapons used
•	Some pre-planning	
	•	Some element of viciousness

CATEGORY	SENTENCING RANGE
	
Category 3	20 – 30 years
	
•	Trial or plea	•	Preplanned vicious attack
•	Strong desire to do GBH	
•	Special aggravating factors
•	Mitigating factors reduced weight
or rendered insignificant by
the gravity of the offence
	•	Dangerous or offensive weapons used.
e.g. gun or ax used.
•	Other offences of violence committed	
		
CATEGORY 4	SENTENCING RANGE
	
Worst Case	Life Imprisonment
	
•	Trial or plea
•	Special aggravating factors.
•	No extenuating circumstances.
•	No mitigating factors or
mitigating factors rendered
completely insignificant by the
gravity of the offence.	•	Pre meditated attack.
•	Brutal killing in cold.
•	Killing of innocent, harmless person.
•	Killing in the cause of offence.
•	Complete disregard for human life	

32. 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 – 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 range of 12-15 years is warranted in your case here.

33. 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.

34. 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. 

35. 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."

36. 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. 

37. Still another very useful sentencing guideline 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.

38. 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

39. 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:

•	The plea was not guilty.

•	A full trial was conducted to determine guilt.

•	There were no firearms used if that term is limited to guns, rifles and pistols and the like. There were no other dangerous weapons like an axe or bush knife used.

•	There were aggravating factors in your case. A very strong aggravating factor here was that you prosecuted an unlawful purpose which directly led to the death of the deceased. The strong aggravating factor here was that you sexually penetrated a very young child of some 12 years old. When you sexually penetrated her vagina, with your penis, she lost a lot of blood for three (3) days. This massive loss of blood resulted in her suffering from hypovoelemic shock which in turn triggered off a cardiac arrest in her leading to her instant death. This single aggravating factor in my view reduces and completely renders as insignificant the weight of any mitigating factors operating in your favour.

•	 In The State v Charlie Langu (No. 2) 2004, N 2652 Cannings J sentenced a 27 year old man to jail for 25 years. The man was charged with murder committed in the prosecution of an unlawful purpose contrary to Section 300(1)(b).The unlawful purpose was taking part in a riotous assembly and in the process the accused speared the deceased who died instantly.

40. 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

41. 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.

42. 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

43. 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 Bomana Jail outside Port Moresby.

___________________________________________________________
Acting Public Prosecutor: Lawyer for the Prisoner
Public Solicitor: Lawyer for the Accused