N5178

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 136 of 2010

THE STATE

V

DUBIE KAIS
(No 2)

Kimbe: Toliken, AJ
2012 : 04th, 10th, 12th December

CRIMINAL LAW – Sentence – Murder – Accused attacked and repeatedly slashed deceased with bush knife – Deceased initial aggressor, attacked accused with bush knife – Deceased disarmed, knife knocked off from his hands – Accused picks up knife, attacked the deceased – Deceased no longer threat to the accused – Criminal Code Act Ch.262, s 300(1)(a)

CRIMINAL LAW – Sentence – Plea – Mitigating factors considered – First time offender – Youthful offender – Some compensation paid – Expression of remorse – Accused voluntarily surrendered - That deceased was initial aggressor – weight reduced as deceased unarmed at time accused attacked him – Aggravating factors considered – Accused intoxicated – Use of offensive and dangerous weapon – A degree of viciousness – Strong intent to cause grievous bodily harm - Offence Prevalent – Effect of long period of incarceration on prisoners family considered – Prisoner to take responsibility for what might befall them.

CRIMINAL LAW – Sentence – Sentencing tariffs and guideline sentences by Supreme Court discussed - Diverging opinions of the Supreme Court considered and discussed – Appropriate sentence – 12 years.

CRIMINAL LAW – Sentence – Deduction of time in pre-trial custody – Submission of escaping from custody - Without proof any doubt must be applied to the prisoner's benefit.
 
 Cases Cited

Goli Golu -v- The State [1979] PNG LR 653
Ure Hane -v- The State [1984] PNGLR 105
Lawrence Simbe -v- The State [1994] PNG LR 38
Simon Kama –v- The State (2004) SC 740
Manu Kovi –v- The State (2004 SC 789)
Mangi –v- the State [2006] SC 880
Thress Kumbamong v The State (2008) SC 1017
State –v- Tupis Tom No: 2 (2009) N3675
The State v Laurie Kemuel Paugari; The State v Kopol Kepao; The State v Raywill Parapen (2011) N4438

Counsel:

F. Popeu, for the State
F. Kua, for the prisoner

JUDGMENT ON SENTENCE

12th December, 2012

1.	TOLIKEN, AJ: On the 04th December 2012 I found the prisoner guilty for the murder of one Aiwo Tanige Mango on the 10th day of October 2009, after a short trial.

2.	Defence counsel requested for a Pre-Sentence Report (PSR). The matter was adjourned to the 18th of December 2012 for the probation officer to file the PSR. This was done and the allocutus was administered. Counsel then made final submissions. I adjourned to today for sentence. This is my judgment on sentence.

THE FACTS

3.	For the purpose of sentence I adopt my findings of fact from my judgment on verdict in this matter. (see The State v Dubi Kais, CR 136 (No.1) of 2010 (unreported and unnumbered judgment dated 04th December 2012) 

4.	On Friday the 09th October 2009, the prisoner and his alleged accomplice (Alfred Windu who had since escaped from custody) started drinking in the afternoon at the Section 41 Settlement, known popularly as the Kumugaras Settlements on the outskirts of Kimbe town.

5.	At about 9.00p.m that night they were joined by the deceased Aiwo Tanige Mango who had been drinking elsewhere and obviously was already under the influence of liquor. He brought with him a bottle of OP whiskey. The three sat drinking and telling stories until about 1:00am on the 10th of October 2009 when they finally ran out of drinks. The deceased asked the prisoner and his companion for money to buy more drinks but they told them that they didn't have any money. The deceased became angry. He pulled out a bush knife which he had come with and swung it at the prisoner. The prisoner jumped back and thus avoided being cut. The deceased pursued the prisoner with the knife while telling him and his friend words to the effect that he was a wanted man, an escapee from the Kimbe Police Cells and that he and his brother were responsible for the shooting of Policeman Paul Karl.

6.	At that time Alfred Windu started pelting the deceased with stones. One of the stones hit the deceased and he dropped the bush knife to the ground. The prisoner immediately picked up the knife and slashed the deceased on his hand, back and head. The deceased ran off to Section 42 where the neighbours rushed him to the Kimbe General Hospital but he died on arrival.

7.	A post mortem report by Dr. Peter Yama revealed that the deceased sustained:

•	A deep cut on the left bicep which severed the left flexcor lower 		forearm.
•	A deep cut to the posterior of the neck.
•	Multiple lacerations on the back.

8.	The cause of death was haemorrhagic shock from multiple knife wounds.

ANTECEDENTS

9.	The prisoner is from Penatabotong village, Bali Island, West New Britain Province. He has, however, lived most of his life at Kumugaras Settlement here in Kimbe. He is now 22 years old but was 19 years old at the time he committed the offence. He comes from a family of eight (8) siblings. Both his parents are still alive. He is married with two (2) children and is a member of the Catholic Church. He was educated up to grade four (4) only. He has no prior convictions.

ALLOCUTUS

10.	On allocutus the prisoner said he is being punished for a crime which he is innocent of – a crime that someone else committed. He said he has paid K2500.00 and one live pig as compensation to deceased's relatives. He is worried about his wife and children whom he said are living in a shanty at the Kumugaras Settlement. He asked though for forgiveness and asked further to be given probation so that he could serve his term outside.

SUBMISSIONS

11.	Mr. Kua for the prisoner submitted that the issue for the court is whether the prisoner deserves the maximum penalty of life imprisonment for the crime of murder. 

12.	He submitted that the sentencing tariffs for homicide offences have been set by the Supreme Court in Manu Kovi –v- The State (2004 SC 789). He submitted that the circumstances of this case bring it under category 2 of the Manu Kovi tariffs and thus would attract a sentence from 16 years to 20 years. Counsel also referred the Court to the case of The State v Laurie Kemuel Paugari; The State v Kopol Kepao; The State v Raywill Parapen (2011) N4438 which he said had similar factual circumstances as the current case.

13.	Mr. Kua asked the Court to consider the following factors as mitigating the prisoner's offence.

•	There was no pre-planning
•	The Prisoner is a first time offender
•	He voluntarily surrendered to the police
•	He freely admitted the offence as evident from his record of interview 
•	He has expressed genuine remorse
•	Is not a habitual criminal
•	He has a wife and two children who depend on him
•	He had paid compensation
•	He was a youthful offender

14.	Counsel also submitted that there is one extenuating factor in this matter - the deceased was the aggressor, having attacked the prisoner first with the same bush knife. Counsel said that the only aggravating factors against the prisoner were the use of a bush knife, the prevalence of the offence and a life has been lost. And whilst custodial sentences are the norm for homicide offences counsel submitted for a partial suspension. Finally he submitted that the prisoner has been in custody for a period of three (3) years and a month.

15.	Mr. Popeu for the State on the other hand firstly took issue with the period the prisoner was said to have been in custody. He submitted that the prisoner had in fact escaped from custody while awaiting trial on 25th June 2010 and remained at large until his recapture on 06th of September 2011. He then again escaped on 30th June 2012 but was recaptured on the same day.

16.	Mr. Popeu agreed that the sentencing principles for murder are set out in Manu Kovi v the State (supra). He also agreed that the circumstances for this case fall within category 2 of the Manu Kovi tariffs but only in so far as there was no pre-planning involved, the attack on the deceased was not vicious and the use of a weapon. Other then that the injuries inflicted on the deceased displayed a strong intention to do grievous bodily harm with the use of a dangerous weapon, a bush knife.

17.	Hence counsel submitted that this case could easily fall into Category 3 of the Manu Kovi tariffs attracting a sentence of between 20 – 30years. He suggested therefore that the case would appropriately fall within the upper end of Category 2 and the lower end of Category 3. He suggested a head sentence of between 18 – 22 years.

18.	And while the Pre-Sentence Report (PSR) was favourable to the prisoner and confirms his payment of some compensation to the victim's relatives there are no exceptional circumstances favourable to the prisoner.

19.	Finally he implored the court to consider the sanctity of human life and impose a sentence on the suggested range.

PRE-SENTENCE REPORT

20.	The PSR was favourable to the prisoner. Those interviewed for the report were the prisoner himself, his parents, his father in-law, one Nick Tupi (former Mayor of Kimbe town) and one Richard Rang, the Ward member for Ward 6 in the Kimbe Urban Local Level Government.

21.	The Report confirms the prisoner's personal background. His family is concerned that his prolong absence will have a negative impact on his young children and their general well being. It also confirms the amount paid by the prisoner's relatives as "bel sore" money to assist with the decease's funeral expenses. It says that the prisoner had expressed remorse through the payment of compensation. The report also says that the prisoner has general good standing in the community and that he was of good character until he committed the crime.

22.	The prisoner is assessed to be a low risk person but that crime is a very serious one as someone's life had been taken away and it is left to the court to decide an appropriate sentence.

23.	It must be noted, however, that none of the decease's relatives were interviewed as they had left for home in Morobe Province. Indications are that they will never return.

THE ISSUES

24.	The issues that arise for my determination are then:

(1)	What is an appropriate sentence for the prisoner?
(2)	Whether the prisoner escaped from custody while awaiting trial and if so, how much of the prisoner's pre-trial custody period should be deducted?

THE LAW

25.	The prisoner has been convicted of murder under Section. 300(1) (a) of Criminal Code Act which provides:

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)	if the offender intended to do grievous bodily harm to the person killed or to some other person; or
...
Penalty:	Subject to Section 19, imprisonment for life.
...

26.	The penalty of life imprisonment reflects the law's view of the sanctity of life. The law, however, recognizes that offences are committed under all sorts of circumstances that may either justify, or mitigate, or aggravate the offence and, hence, it provides the court with very wide sentencing discretion to impose lesser sentences under Section 19 of the Criminal Code where appropriate. This power is only fettered by the maximum prescribed penalty provided by law and by the Legislature if it so desires to fetter the court's sentencing power through legislation.

27.	It is well settled, though, that the maximum penalty is reserved for the worst of cases and, whatever a sentence will depend very much on the particular circumstances of each case. Goli Golu -v- The State [1979] PNG LR 653; Ure Hane -v- The State [1984] PNGLR 105; Lawrence Simbe -v- The State [1994] PNG LR 38) But what has been the sentencing trend by the courts in the recent past for offences of murder?

SENTENCING TREND

28.	Both counsel agreed that the case of Manu Kovi -v- The State (supra) has set the benchmark, so to speak, for sentencing tariffs in homicide offences like unlawful murder, murder and manslaughter.

29.	The Supreme Court there set the following tariffs for murder:

Category 1	12 – 15 years	
Plea
Ordinary Cases
•	Mitigating factors with no aggravating factors	•	No weapons used 
•	Little or no pre-planning
•	Minimum force used
•	Absence of strong desire to do GBH	
Category 2	16 – 20 years	
Trial or Plea
•	Mitigating factors with aggravating factors	•	No strong intent to do GBH
•	Weapons used
•	Some pre-planning
•	Some element of viciousness 	
Category 3	20 – 30 years	
Trial or Plea
Special Aggravating factors
•	Mitigating factors reduced in weight or rendered insignificant gravity of offence	•	Pre-planned viscous attack
•	Strong desire to do GBH
•	Dangerous or offensive weapons used eg. Gun or axe
•	Other offences of violence committed	
Category 4	Life Imprisonment	
WORST CASE – Trial or Plea
Special aggravating circumstances
•	No extenuating circumstances
•	No mitigating factor or mitigating factors rendered insignificant by gravity of offence	•	Pre-mediated attack
•	Brutal killing in cold blood
•	Killing of innocent harmless person
•	Killing in course of committing another serious offence 
•	Complete disregard for human life	

30.	I do not have anything against the Supreme Court categorization of the circumstances of murder in the upward sliding scale proposed there. In fact these categories can assist the sentencing courts very much in determining appropriate sentences. However, I do express my reservations about the setting of minimum tariffs within those categories suggested in Manu Kovi. This seems to me to be fettering the trial court's sentencing powers under Section 19 of the Code.

31.	In this regard I am inclined to agree partly with what the Supreme Court in Thress Kumbamong (2008) SC 1017 (Salika, DCJ, Kandakasi, Cannings JJ.) said – that when Manu Kovi tried to delimit or set "minimums within the maximum prescribed penalty" it unnecessarily interfered with the trial court's sentencing powers.

32.	The Supreme Court bench in Kumbamong went on to say that no sentencing Judge should feel compelled to follow Manu Kovi and that Manu Kovi should be rejected completely. I am, however, not prepared to completely reject or choose not to follow Manu Kovi. Indeed I may not have the discretion to that. But while I have reservations about the minimum tariffs Manu Kovi set for the various categories of homicide, its enumeration of circumstances that may aggravate or mitigate offences are very much relevant and provide a good guide for the sentencing court. They also help to bring about consistency and parity in sentencing. And as the court said in Manu Kovi each court will decide what weight it sought to place on each particular factor.

33.	I understand that the considerations in Manu Kovi were suggested after a careful review of what both the National and Supreme Courts have laid down over the years. So to completely reject Manu Kovi as suggested in Thress Kumbamong would be taking too extreme a course but what it said about curtailing or following the sentencing court's discretion rings equally true too in my opinion. So I take the middle ground.

34.	So let us consider some cases of similar nature, starting with The State v Laurie Kemuel Paugari (supra) . There the co-prisoners were originally charged with wilful murder but were found guilty of murder after trial. They had attacked the deceased and destroyed his house in retaliation of a prior assault on Pangari and damage to his vehicle. One of the prisoners hit the deceased with a knife, while the second hit the deceased with an iron handle axe. The third prisoner also hit the deceased.

35.	The Court took into account the following aggravating factors-

•	the use of offensive weapons i.e. bush knives and axes.
•	it was a mob attack
•	it had an element of payback
•	the prisoners persisted on their attack despite being told to return in the morning to sort the matter.

36.	But the court held the following factors in mitigation-

•	the prisoners were first time offenders
•	there was no pre-planning
•	the matter started out as a drunken brawl
•	two of the offenders were juveniles at the time of offence hence youthful offenders.

37.	The court also accepted what it said was a special mitigating factor. The prisoners' respective tribesmen paid "belkol" money to the deceased's people, reconciled with them and peace and harmony had been resorted. The court went further and held the following extenuating circumstances in favours of the prisoners – 

•	the prisoner Paugari had defended the deceased at an earlier stage when the argument first occurred and for that he was punched
•	for the good part of the night the deceased and the prisoner were drinking around in Paugari's vehicle
•	the prisoners did not individually inflict more then one cut on the deceased.

38.	In this matter Salika DCJ., considered sentences in other cases and found that the sentencing range was between 12 years – 25 years. He also considered the degree of participation by each prisoner before passing sentence. He therefore sentenced them separately to 14 years for Pangari and 12 years each to the other two prisoners.

39.	In the State –v- Tupis Tom No: 2 (2009) N3675 the deceased was killed in a mob attack during a drunken brawl at a club. Tupis Tom punched the deceased and they exchanged punches. The co-accused in this matter Nathan Bobi delivered a heavy bodily blow to the decease's ribs fracturing them. The deceased died as a result of broken ribs and respiratory failure due to a collapsed lung. The prisoners were first time offenders, and were remorseful, there was no pre-planning, there was non-legal provocation and they attacked the deceased with their bare hands only. Against them, however, were the following aggravating factors; this was a prevalent offence, the murder was the result of a drunken brawl in a club, the prisoners had intended grievous bodily harm on the deceased, and that though the attack was not pre-planned it was vicious.

40.	Makail J. considered the circumstances of the case and felt that it fell under category 1 of the Manu Kovi tariffs. He sentenced both prisoners to 12 years imprisonment.

41.	In the case of The State –v- Kevin Wakore [2007] N3222, the prisoner and his relatives attacked the deceased with knives and a home- made gun. They cut him twice and shot him once in the chest killing him. The court (Cannings J.) decided that the circumstances of the case placed it within category 2 of the Manu Kovi tariffs (16 – 20 years).

42.	The court found the following mitigating factors against the prisoner; he was a first time offender, pleaded guilty, co-operated with the police, had paid compensation and reconcile with the deceased's people and that there was de facto provocation. The aggravating factors, however, were that the deceased died as a direct consequence of the deceased's attack, there was no pre-existing condition that would have contributed or accelerated the death, the death was a foreseeable consequence of the assault and that the prisoner was taking the heat for this relatives.

43.	His Honour considered that a head sentence should be below the starting point of 16 years. He imposed a sentence of 12 years, deducted the period spent on custody and suspended 4 years from the resultant sentence.

44.	In Mangi –v- the State [2006] SC 880, the appellant was found guilty after trial for murder. He had killed the deceased whom he was drinking with by stabbing him on the chest with a knife. He was sentenced to 35 years imprisonment. The trial Judge relied on Simon Kama –v- The State (2004) SC 740. On appeal the Supreme Court (Los, Manuhu & Gabi, JJ.) adopted the tariffs in Manu Kovi (supra) decided four (4) months before the appellant was sentenced. The Supreme Court found that the case fell within category 2 of Manu Kovi because a weapon was used and reduced the sentence therefore to 16 years. I now turn to the matter at hand.

CURRENT CASE

45.	Let me first recap the relevant or pertinent facts in this case. After the prisoner, his friend Alfred Windu and the deceased had ran out of drinks the deceased asked the prisoner and his friend for money to buy more drinks. They told him that they didn't have any money. At that the deceased reacted angrily and aggressively. He swung his bush knife at the prisoner but the prisoner jumped back thus avoiding being cut.

46.	It can be safely inferred that the deceased continued his assault on the prisoner as Alfred Windu then started pelting the deceased with stones. One of these stones hit the deceased and he dropped the knife. The prisoner then immediately picked up the knife and cut the deceased on his back (posterior) of his neck and forearm. He also inflicted lacerations to the deceased's back. The medical report showed that the cuts to the back of the neck and forearm were deep. After inflicting the injuries on the deceased the prisoner ran away to his house. A couple of days later he surrendered to community leaders who later took him and his friend Alfred Windu (who had escaped from custody) to the police.

47.	I accept the mitigating factors submitted by Mr. Kua. These being that the prisoner is a first time offender, there was no pre-planning involved, he has expressed some remorse, he had paid compensation (K2500.00 cash and a live pig), he surrendered to police with the help of community leaders. He was 19 years old, hence, he was a youthful offender.

48.	I also accept that there is one extenuating factor.The deceased was initially the aggressor until he was forced to drop the knife when Alfred Windu hit him with a stone.

49.	However, there are aggravating factors involved. These are that the offence of murder is very prevalent not only in West New Britain but nationwide; the prisoner attacked the deceased with a bush knife; he inflicted two deep cuts to the back of the deceased's neck and forearm which indicated a strong desire or intent to cause grievous bodily harm. There was a small degree of viciousness in the attack on the deceased. Finally I also hold the fact that the prisoner was under the influence of alcohol when he attacked the deceased against the prisoner.

50.	It is clear to me then that elements of both category 2 and category 3 of the Manu Kovi tariffs are present in this case. Here a dangerous and offensive weapon (bush knife) was used, there was some element of viciousness in the attack and there was a strong desire to cause grievous bodily harm.

51.	Defence counsel, Mr. Kua submitted for a sentence within Category 2 of the Manu Kovi tariffs – between 16 – 20 years - while his friend Mr. Popeu submitted for a sentence between 18 – 20 years. This would be a sentence falling between the upper end of Category 2 and the lower end of Category 3.

52.	To fix a starting point within the ranges suggested by counsel would, as suggested by the Deputy Chief Justice His Honour Justice Salika, be restricting me from exercising my discretion under Section. 19 of the Criminal Code. (The State –v- Paugari (supra) However, I take full cognizance of those guidelines in Manu Kovi in the exercise of my discretion under Section 19 of the code.

53.	So the first question that I need to ask myself is; is this a worst type of offence that must attract the maximum penalty of life imprisonment? No it is not by any stretch a worst offence. Hence, I must determine a sentence below the maximum in fitting with the peculiar circumstances of the case.

54.	In considering the objective seriousness of this case I should think that, despite the fact that it exhibits certain features of both category 2 and 3 of the Manu Kovi tariffs for murder, it would fall somewhere below the mid –range in a scale of 1 – 10. The starting point should therefore be somewhere below the suggested starting point in category 2 of Manu Kovi. I fix a starting point of 15 years. So what then should be an appropriate head sentence for the prisoner?

APPROPROPRIATE SENTENCE

55.	In deciding this I think I must take into account first, the fact that life was unnecessarily taken away. Everything else will be considered around this fact.
Firstly I consider that the prisoner was a first time offender. He was around 19 years old at the time he committed the offence hence he was a youthful offender. There was no pre-planning on his part, he expressed some remorse and had paid some compensation to the deceased relatives and he voluntarily surrendered to the community leaders and the police.

56.	I take into account the fact that the deceased was the initial aggressor so this is as I've already stated an extenuating factor. Its weight is somehow reduced by the fact that the deceased was already unarmed at the time the prisoner picked up the knife and attacked him with it. He didn't pose any physical threats on the prisoner despite his verbal threats that he was an escapee, a wanted man who was involved in the shooting of policeman Paul Karl.

57.	The prisoner attacked the deceased with a bush knife with a certain degree of viciousness and strong intent to cause grievous bodily harm. Though he did not intend to kill him the manner of his attack on the deceased and the location and nature of the wounds on the deceased's body indicated a fairly strong desire to nonetheless cause him grievous bodily harm.

58.	Once again this was a senseless killing fuelled by the ravaging effects of uncontrolled consumption of alcohol. This is an aggravating factor against the prisoner. Self induced intoxication has always been viewed in this jurisdiction as aggravating an offence so the prisoner cannot rely on the fact that he was drunk. Murder is a very prevalent offence. Some murders, like this one are totally unnecessary. The courts continue to impose heavy sentences but this has proven to be ineffective in reducing this type crimes. I take this into account and will give it due considerations in the sentence I shall impose.

59.	There will be adverse effect of a long period of incarceration on the prisoner's wife and young. Yes I do consider that but as has often been said it is a little too late now for the prisoner to start thinking about his children. He should have thought about this before he committed this offence. Anybody who intentional gets himself drunk must accept the consequences that may arise should he commit an offence during his state of drunkenness. He must accept the fact that others close to him will inevitably suffer too out of no fault of their own.

60.	So I do sympathize with the plight of the prisoner's wife and children, that they must now also suffer because of their father's wrong-doing. If anyone is to blame for what may befall them in the period that he will not be around to care for them and nurture his children it will be the prisoner himself.

61.	So when comparing this case and the few that I have surveyed above, I feel that a head sentence of 12 years will also be appropriate here. In fact when comparing the case of Kevin Wakore (supra) with this matter, except for the fact that the prisoner here was drunk, that case seemed to have been a lot more serious. It attracted a head sentence of 12 years as we have seen.

62.	So I impose a head sentence of 12 years imprisonment.

WHETHER PRISONER ESCAPED FROM CUSTODY – DEDUCTIONS FOR PRE-TRIAL CUSTODY PERIOD

63.	This then brings me to the next issue – whether the prisoner did escape from custody, and if so how much time has to be deducted for pre-trial custody from the head sentence?

64.	The State had submitted from the bar table that the prisoner had escaped from CS custody and remained at large until his recapture from 25th June 2010 to 6th of September 2011. That is a period of one (1) year two (2) months and eleven (11) days. Should this period be deducted from any period that would be deducted for pre-trial custody?

65.	I think it should be in the normal circumstances. However, as counsel for the prisoner said the prisoner had not been convicted for escaping. Furthermore, the State had not given any evidence that the prisoner in fact escaped and remained at large for the stated period. I noted that Mr. Popeu did consult with the CS officer in attendance and the documents he had with him but I think that is insufficient. He could have easily called the officer to give sworn evidence but he chose not to. This is a matter that calls for some proof hence without such proof any doubt must be applied to the prisoner's benefit.

66.	I therefore deduct three (3) years, one (1) month and two (2) days for the period spent in custody awaiting trial and sentence from the head sentence. That will leave a resultant sentence of eight (8) years, 11 months and twenty eight (28) days. None of this will be suspended.

67.	My Orders therefore are as follows:

1.	The prisoner Dubi Kais is sentenced to twelve (12) years imprisonment with hard labour.

2.	The period of three (3) years, one (1) month and two (2) days is deducted for pre-trial and sentence custody period.

3.	The resultant sentence shall be eight (8) years, eleven (11) months and twenty eight (28) days.

4.	The prisoner shall serve eight (8) years, eleven (11) months and twenty eight (28) days at Lakiemata Corrective Institution.

The Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Prisoner