State v Ratsi [2011] PGNC 302; N5013 (7 November 2011)

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CRIMINAL LAW – Indictable offence – Criminal Code section 299(1) - Homicide etc......Wilful murder trial –plea of guilty half way through the trial following - Sentence- Weight to be given to aggravating as well as extenuating factors- Mitigating factors rendered insignificant by weight of aggravating factors-guilty - Provocation in a non legal sense. And behavior of the deceased presented strong extenuating circumstances.

The accused was indicted on one count of wilful murder contrary to section 299(1) of the Criminal Code. He pleaded not guilty and a trial was conducted. The evidence showed that the deceased had removed a crucifix from a wooden cross erected at the entrance of the village. The prisoner angered by the actions of the deceased stabbed him on the left chest using a sharp copra knife. In those circumstances:

(2) The copra knife blow was swung with such savagery and ferocity that it clearly demonstrated an intention to kill the deceased. The prisoner clearly intended the death of the deceased.

(3) The presence of strong extenuating circumstances significantly reduce the effect of mitigating circumstances. Considering the presence of the extenuating circumstances there should be a partial suspension of sentence to reduce the head sentence imposed.

(4)Any suspension should only be in accordance with the criteria set out in the Supreme Court case of Bruce Tardew.

Steven Loke Ume-v- Greg Vava Kaowa, Charles Patrick Kaona-v- The State [1997]Unnumbered and Unreported Supreme Court Decision in SCRA 10 of 1997 dated 4th May 2000.
Goli Golu –v– The State [1979] PNGLR 653
The State –v–Laura (No. 2) [1988-1989] PNGLR 98,
Lawrence Simbe –v– The State [1994] PNGLR 33
The State –v–Laura (No. 2) [1988-1989] PNGLR 98,
Public Prosecutor –v- Bruce William Tardew [1986] PNGLR 91
Simon Kama –v- The State (2004) SC748

1. KAWI, J: The prisoner Jerome Ratsi from Piwawin village Selau District in the Autonomous region of Bougainville pleaded not guilty to one count of wilful murder. He was however found guilty after trial and convicted of wilful murder of one Emmanuel Tangoro on the night of 9th April 2009.This is now my judgement on his sentence.

(a) The principal issue for determination by the court is what kind of sentence can this court should impose upon the Prisoner?

(b) The second issue for determination is whether the court should suspend the whole or part of any sentence imposed?

2. 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.

3. 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. Community leaders from your area also voiced their support for you to be given a probation sentence.

4. 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 principles:

(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.

5. 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 your case as belonging to the worst category of cases. In my view whilst this is a one off killing, the weapon you used, a sharp copra knife 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 whose community may be too unwilling and receptive to receive you back in your community.

6. After finding you guilty and convicting you 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 crime.

7. The Supreme Court in the 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.

8. 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":

The prisoner is a first time offender.
There was provocation in the non legal sense.
He expressed remorse and begged the court's mercy when the allocutus was administered. He voluntarily surrounded to Police after senselessly killing the deceased. He is a member of the Catholic Faith. It was through the efforts of himself and his father that the crucifix which was at the center of this killing was removed by the deceased. He was a good law abiding citizen before the commission of this senseless crime. The prisoner was educated up to grade 10 level. His grade 10 results were not very good and so he was upgrading his Grade 10 results through the Faculty of Distance Education (FODE) through correspondence when he committed this crime. He was described as a community oriented person. He would take part in all community sponsored activities including church activities which included youth Programs sponsored by the Catholic Church.

10. Under the Criminal Code the maximum sentence reserved for cases of wilful murder is the ultimate punishment of the death sentence. Without discussing in detail the sentencing criteria for wilful murder cases, I am of the view that the facts of this case do not fall under the criteria discussed in death penalty cases such as Steven Loke Ume –v- the State [2006] SCRA 10 of 1997 and The State –v- Gregory Kiapot, Martin Bigit and 7 others. A recent decision of Sawong J delivered in July in Kokopo.

11. The case of The State –v- Goli Golu [1979] PNGLR 11 stands for the proposition that the maximum penalty prescribed by legislation itself will be reserved for the cases described as falling into the worst category of cases. I have reviewed the background to this case and I find that it cannot be classified as a case belonging to the worst category of cases. Neither can the
Offender be classified as a worst offender.

12. In my view the Offender here is a simple unsophisticated village boy who killed the deceased under conditions of what I consider to be an act of provocation which arose as a result of the removal of a crucifix which was erected by this young prisoner and his father. For these reasons, I will decide against sending the young boy prisoner to the gallows. Another principle of law which I will apply here is that I will take into account mitigating factors and aggravating factors on behalf of the Prisoner. Factors which operate in favour of the Prisoner are these:

1.The prisoner is a bachelor. He is not married. He resides with his parents at Piwawin village.

2. He was educated up to grade 10 only. He had occupied himself post grade 10, and was earning money from the sale of copra and cocoa, from which he had paid for his own courses to upgrade and was paying for his own courses which he was studying under the Faculty of Distance Education (FODE) to upgrade his grade 10 school grades.

3.The prisoner is not a violent person. Nor does he pose as a violent threat or risk as a threat his community or village of Piwawin.

4. The prisoner is a first time offender. This fact was confirmed by the State when it did not allege any prior convictions when it presented its antecedent Report.

5. A particular fact which I take into account is the personal antecedent and good character displayed by the prisoner. This is covered in some detail, in the Pre Sentence Report. Two Paramount Chiefs in the Prisoner's community, James Kopi, of Kukuri village and Paul Tatou of Anake village spoke very highly of this young prisoner. Both described him as a person of good character with sober habits. He would take part of all community activities as well as church sponsored activities. Prior to the commission of this crime the young prisoner would assist his parents in gardening and cleaning the family cocoa and copra plantations. He and his father were heavily involved in paying for the materials which they then used to build and erect a wooden cross with a crucifix attached to the cross. The cross and the crucifix was erected and it stood at the entrance leading into Piwawin village. This crucifix was removed from the wooden cross by the deceased and this provoked the fight which resulted in the death of the deceased.

1.) The killing was perpetrated upon the deceased with the use of a dangerous lethal weapon, a sharp copra knife to stab the deceased on his left chest.

2.) The stabbing was done on the left chest of the deceased, which contains a vital organ of the body, the human heart. The deceased fell to the ground as a result of the stabbing. He was taken to the Buka General Hospital that same night and died at the operating theater of the Buka General.

3) Settling disputes through violent means, with the aid of dangerous weapons, is now becoming prevalent in society. This is in spite of the existence of traditional and modern means of resolving disputes.

4) I find that the copra knife was used with such ferocity and savagery that it resulted in the termination of the precious life of another person.

14. The Supreme Court in the case of Steven Loke Ume and 3 Ors described extenuating circumstances as follows:

As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself- factors which reduce the seriousness of the crime....................... 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............... Examples of extenuating circumstances include de-facto provocation, duress or coercion, the degree of an extent of the offenders participation, the offender's medical condition such as psychopathic personality, offender's lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did"

15. In his case I find the presence of the following facts which amount to strong extenuating circumstances:

(a)The young prisoner is a born Catholic. Like many Bougainvilleans, about 90% of the population here follow the Catholic faith. The erecting of the Cross with a crucifix attached to it and displayed at the entrance into the village is an overt act and a clear manifestation of the people's catholic faith. The death of Christ on the cross and his resurrection is the foundation of the Catholic faith. Such is the reverence people of Bougainville have for the cross that in every single village from here on Buka to Buin in the south one will find crosses erected to the entrance of every single village. In fact I find that Bougainville is the only place in the whole of Papua New Guinea where one finds a cross erected in the entrance of every single village throughout the whole province.

(b) I find that for a person to remove a crucifix from the cross is a very degrading act and a clear insult to the Catholic faithful. Not only is this kind of act highly insulting, but it is highly provoking. The person who does remove a crucifix is inviting trouble upon himself. The evidence during the trial showed that the prisoner was the one who removed the crucifix. He was not authorized to do what he did thus provoking the prisoner and his father to do what they did.

(c ) The prisoner stated in his Pre Sentence Report that he and his father had "spent a lot of time, effort and money to beautify and put up the cross at the entrance to their village". He further stated that when they saw what had happened "they could not understand and explain the hurt and anger that came upon them at that time. The experience that I had was like a fire burning inside me and right up to my neck".

16. According to the Prisoner this was not the first time for the deceased to behave this way. The pre sentence report records some of the may behavioral problems involving the deceased. He had a troublesome past as follows:

a) On one occasion he had gone into the Hantoa catholic church and destroyed all the statures inside the church. The father of the prisoner had to openly apologize to the congregation and pay some compensation to the church.

b) On another occasion the deceased threw a rock at a travelling PMV from Wakunai. The rock shattered the side windows on the offside's side and hit the jaw of the offside. It broke the jaw and the person had to seek medical treatment in Australia. A compensation demand of K10,000.00 was made by Wakunai people. Only K5,000.00 was paid by the sister of the deceased.

c) Another incident involved the deceased going to the next village and breaking down the fibro walls to a house. The prisoner's father had to pay compensation and buy new fibro walls to replace the ones destroyed by the deceased.

17. From the above reported incidents, I find that the deceased had behavioral problems. He was described as a "longlong" or a schizophrenic who was inviting trouble upon himself which he did eventually received one fine day. I will take all this into account as strong extenuating circumstances.

18. Sentencing guidelines in homicide offences are expressed by the Supreme court in a number of its decisions. This includes the Supreme Court's decision in the oft quoted case of Manu Kovi –v-The State (2005) SC 789, The State –v- Laura (No.2) [1988-89]PNGLR 89, and Lawrence Simbe-v- The State [1994] PNGLR 33.In Manu Kovi, the Supreme set out various categories of homicide offences, and the sentencing range for that category. Specifically it set out the following categories:

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 course of offence. Complete disregard for human life

19. Going by these sentencing guidelines your case falls easily into the third category which would attract a sentence in the range of 20-30 years. The Supreme Court has emphasized that the death sentence for wilful 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. August – around 15 years – will be considered. Here I have already found that there are serious factors in aggravation which I cannot just ignore. Another useful sentencing guideline 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.

21. 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.

22. 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 wilful murder and provide a deterrent to the commission of such serious crimes to other offenders and would be offenders. Furthermore 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.

23. A very comprehensive pre sentence report was done for the prisoner by the Community Based Corrections Officer here on the ground in Buka, Mr Martin Tisivua. I find the report to be well balanced as it sought the views of everyone in the community including other independent leaders, notably the two paramount chiefs from the Selau area, Mr Joseph Kopi of Kukuri village and Mr. Paul Tatou of Anake village. I find that the report is not only very comprehensive but is also well balanced. I will highly commend this report and congratulate its author for a job well done in the course of only one day.

25. In his submissions learned defence counsel, Mr August submitted that the sentence I impose must be on par and be consistent with the decision in the case of John Bosco who was given a twenty year sentence for murder. Learned State Prosecutor Mr. Rangan on the other hand submitted that although john Bosco was given twenty years for the same killing, he pleaded guilty to one count of murder whereas the prisoner here pleaded not guilty to one count of wilful murder. I agree with the submissions by the State Prosecutor. I do not find any relevance in the application of the parity principle.

27. The first is that the maximum penalty for willful murder is the ultimate sentence of death as prescribed by Section 299(2). 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 wilful murder is the death sentence, there is nothing in your case which warrants the court, to seriously consider imposing the maximum death penalty upon you.

28. The second principle is that 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 653).

29. Of course where there are some very good mitigating factors, such as a young offender persuaded by other more older persons to commit, that may warrant a sentence lower than any of the tariffs suggested above.
Going by these sentencing guidelines set by the cases of Laura (No 2) and Lawrence Simbe your case clearly falls within category (b) which would attract a penalty of seventeen (17) years to thirty (30) years.

30. Still other very useful sentencing guidelines were set by the Supreme court in the case of The State –v–Laura (No. 2) [1988-1989] PNGLR 98, and subsequently in Lawrence Simbe –v– The State [1994] PNGLR 33. These guidelines are as follows:

31. Going by these guidelines, your case would easily fall within the category (b) and even category (c) which would attract a sentencing range from seventeen (17) years to thirty (30) years (category (b) or 31 years to life imprisonment (category c.) This sentencing range of 17 to 30 years is very consistent with the range of sentences fixed in category c in the Laura No. 2 case and Lawrence Simbe's case. On the other hand if I go by the sentencing tariffs fixed in the Manu Kovi case, your case would clearly fall into category 3 which would attract a sentencing range of 20-30 years.

32. In your case I will apply the guidelines suggested by the Supreme Court in Manu Kovi and I find that it falls into Category 3. 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 not to commit in such crimes.

33. 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.

34. In your statement in allocutus, you asked the court to give you a suspended sentence. You also apologized to God Almighty for the sin you committed, the family of the deceased and to the Court. You then begged the court for its mercy when imposing a sentence upon you. While I find your plea for a suspended sentence not to be an unreasonable request I will not suspend your sentence here for two reasons:

"In my view suspension of sentences in and placing prisoners on probation is not an appropriate course of action as it undermines the gravity of the killing. It is not appropriate course of action to take and should not be considered in homicide cases where the killing involves a premature termination of precious human life. If there is to be some consideration for reduction of sentences, then that should only be restricted to deducting the time spent in custody which is appropriate in this case."

35. A strong deterrent sentence is warranted in your case. Consequently taking into account all the factors operating for you, as well as the period spent in custody I will sentence you to twenty five years in jail. This will be reduced by 10 years on account of the very strong extenuating circumstances present in your case, as well as the time spent in pre-trial custody which works out to be two years and three months. Effectively you will serve a total of twelve years and 8 months in prison. I will therefore order you to serve your sentence in this way:

a) You will serve a portion of your sentence in the Erap Boys Town outside the City of Lae along the Markham Highway. Here you will spend Five (5) years which will see you reach the age of 23.

b) You will then be transferred after five years to the Bekut prison here in where you will spend the balance of your prison term.

The authorities in Erap shall ensure that you, will undertake all rehabilitation Programs including attending regular classes to improve your grade 10 results.

c) The Office of Community Based Corrections, in particular, the Co-ordinator of Juvenile Justice Programs shall facilitate the transportation of the Prisoner, Jerome Ratsi to Lae and the Erap Boys Town. The prisoner shall be accompanied to Lae by the Community Based Corrections Officer, Mr Martin Tisivua.

___________________________________________________________
Paraka Lawyers: Lawyer for the Prisoner
Acting Public Prosecutor: Lawyer for the State

National Court of Papua New Guinea

State v Ratsi [2011] PGNC 302; N5013 (7 November 2011)