N9037                                      

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 398 OF 2010

THE STATE

-V-

HENRY KARE

Alotau:  Toliken, AJ
2013: 	21st May, 9th August

CRIMINAL LAW – Sentence – Murder – Plea – Accused stabbed deceased several times on chest with bush knife – Accused intoxicated, armed with bush knife - Mitigating factors considered against aggravating factors – Sentence of 15 years – Criminal Code Ch. 262, s 300(1)(a).

Cases Cited

Manu Kovi v The State (2005) SC789
Mangi v The State (2006) SC880
Saperus Yalibakut v The State (2006) SC890
The State v Anton (2010) N 4117
The State v Laiam (2010) N3995
The State v Parao (2009) N3625
The State v Tom; The State v Bobi (No.2) N3675

Counsel

R Auka, for the State
P Palek, for the Prisoner

JUDGMENT ON SENTENCE 

9th August, 2013

1.	TOLIKEN, AJ:	On the 21st May 2013, the prisoner, Henry Kare pleaded guilty before me that on the 18th day of December 2009 at Raven Estate, Alotau, he murdered one Marele Donald Kepi, thereby contravening Section 300(1)(a) of the Criminal Code Act, Chapter 262.

	FACTS

2.	The brief facts are that on the day in question, the prisoner and the deceased and others were drinking beer at Raven Estate, Alotau. An argument arose between the prisoner and the deceased when the prisoner gave a bottle of beer to one Tom Felosi who had come in to see them. The argument led into a physical fight in which the prisoner and co-accused (escaped from custody) badly assaulted by the deceased. The deceased received injuries to his back and face.

3.	After the fight, the deceased and his girl friend Libi Boas, a relative of the prisoner’s, walked to the bus stop.  As they were walking down, the deceased shouted back to the prisoner and others that he will return with his gun and shoot them. This angered the prisoner.  He ran back and picked up a bush knife and went after the deceased.  When he caught up with him, he stabbed him several times on the chest.  The stab wounds penetrated the deceased’s heart and lungs and he died as a result from collapsed and ruptured lungs and heavy loss of blood.

4.	The prisoner admitted the State’s allegations that when he stabbed the deceased with the bush knife, he intended to cause him grievous bodily harm.

5.	I confirmed the prisoner’s plea and convicted him for murder after perusing the Committal Court depositions and upon being satisfied that the plea was supported by the evidence.

	ANTECEDENTS

6.	The prisoner is from Goilanai Village in the outskirts of Alotau Town.  He was 19 years old when he committed the offence.  He is now 22 years old.  He is married with a 3-year-old daughter.  He is the first born in a family of 3 boys and 1 girl.  His parents are both alive but have since divorced and are living apart.  The prisoner is a member of the Uniting Church and was only educated up to Grade 6.  He has no prior convictions. He has spent 3 years, 5 months and 9 days in pre-trial custody.

THE ISSUE
7.	The issue for me to determine is – what is an appropriate sentence for the prisoner?

	ADDRESSES

8.	The prisoner apologised to the Court for his offence.  He also apologised to the deceased’s family and the community for what he had done.  He said this was his first offence and pleaded for mercy.

9.	Mr. Palek for the prisoner submitted that the circumstances of this case put it in the upper end of Category 1 and the lower end of Category 2 of the Manu Kovi tariffs thus attracting a sentence of between 13 – 16 years. (Manu Kovi v The State (2005) SC 789)  

10.	Counsel drew the Court to mitigating factors in favour of the prisoner which he said far outweighed the aggravating factors.  He urged the Court to consider that the prisoner was a youthful offender of 19 years when he committed the offence, that his parents divorced when he was merely 17 years old, that there was some provocation by the deceased, his guilty plea and lack of priors and his expression of remorse.

11.	Mr. Palek cited several cases to me to assist me in arriving at an appropriate sentence.  And he refers me to the sentencing principles and tariffs set by the Supreme Court in Manu Kovi v The State (supra) and other Supreme Court cases.

12.	Counsel also urged the Court to apply to the prisoner’s favour those matters that the prisoners had raised in his allocutus and plea that the State did not contest.  For instance, the prisoner pleaded guilty to stabbing the deceased once only.  (See Saperus Yalibakut v The State (2006) SC 890).

13.	For the State, Mr. Auka submitted that there are aggravating factors in this case.  These are – the use of a knife, loss of life, prevalence of the offence and viciousness of the attack on the deceased judging from the wounds as shown in the Medical Report which also implied that strong force was used.

14.	Mr. Auka also referred the Court to several Supreme Court cases mostly unreported where that Court had confirmed sentences by the National Court in offences like this. 

15.	Counsel submitted that the circumstances of the case bring it under Category 2 of the Manu Kovi tariffs – attracting a sentence between 16 and 20 years.

PRE-SENTENCE REPORT

16.	A Pre-Sentence Report (PSR) was prepared and submitted to the Court.  The report is detailed, and a lot of people were interviewed.  However, Probation Supervision is not recommended by the author.  There was also strong opposition to any non-custodial sentence from the Village Ward Councillor and Church Pastor.

	MEDICAL REPORT

17.	The Medical Report concluded that the deceased “was stabbed with a sharp object multiple times to the body, on the leg, back and the right chest had four wounds.  Three wounds on the right chest all penetrated through the chest while one was non-penetrating.

...Internal Examinations revealed that the right lung was collapsed...
The lung had penetrating wound on the middle lobe and there were two wounds to the pericardium on the right side of the pericardium.  The heart was also injured.  The right atrium was non-recognizable as the injury caused it to rapture.  The right ventricle had a penetrating wound.  These findings ... indicate that the deceased had no chance of survival”. (Sic)

18.	The cause of death was cardiogenic shock due to ruptured right atrium and wound to the right ventricle, and hypovolaemic shock due to blood loss and haemopneumothorax.

19.	There is no doubt whatsoever then that the attack on the deceased was a vicious one.

	THE LAW
20.	The prisoner was indicted for the crime of murder under S.300(1)(a) of the Code 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 cause grievous bodily harm to the person killed or some other persons; or
(b)	...
(c)	...
(d)	...
(e)	...

Penalty:  Subject to Section 19, life imprisonment.

	SENTENCING TREND

21.	Let me briefly consider a few cases now to see what the sentencing trend for murder had been.

22.	The State v Laiam (2010) N3995. The prisoner stabbed the deceased to death on the chest once with a knife.  He pleaded guilty to the charge and was sentenced to 15 years. In The State v Anton (2010) N 4117, the prisoner stabbed another woman, whom she suspected of having an affair with her husband, three times with a kitchen knife. The victim died almost instantly. On a plea of guilty Cannings J. held that the starting point for this type of murder (where there is no strong intent to cause grievous bodily harm, use of weapon and some element of viciousness) ought to be 16 – 20 years.  There were several mitigating factors hence a head sentence below the starting point was considered warranted.  A sentence of 14 years was imposed.

23.	Mangi v The State (2006) SC 880. The prisoner and deceased had been drinking together and got into an argument.  The prisoner stabbed the deceased on the chest with a knife. The prisoner was sentenced to 35 years after a trial. On appeal this was, however, reduced to 16 years.
 
24.	The State v Parao (2009) N3625. The prisoner stabbed the deceased on the upper chest with a knife penetrating the lung while robbing along the Highlands Highway.  The deceased put up a fight and was killed in the process.  The prisoner offered a different version of the facts. He was sentenced to 15 years. 

25.	In The State v Tom; The State v Bobi (No.2) N3675, the co-prisoners were sentenced to 12 years for killing the deceased during a drunken brawl and mob attack at a club. The deceased died from fist blows to left chest and abdomen.

	CURRENT CASE

26.	In arriving at an appropriate sentence for the prisoner, I must at the outset say that this is not the worst type of murder. While it does feature both mitigating and aggravating factors it does not warrant the maximum penalty of life imprisonment.

27.	I find the following factors as mitigating the offence.

•	 Plea of guilty.
•	 No prior convictions.
•	 Prisoner a youthful offender (19 years at the time of offence).
•	 Poor or no education.
•	 Prior good character.
•	 Co-operated with police.
•	 Some expression of remorse.
•	 Non-legal provocation by the deceased when he threatened to return with his pistol and shoot prisoner and his friends.

28.	On the other hand, there are a few aggravating factors:

•	 the use of a bush knife
•	 the attack was vicious as evident from the Medical Report
•	 the prisoner was under the influence of liquor
•	 the offence is prevalent.

29.	So, what then would be an appropriate sentence? The circumstances do indeed seem to exhibit features that fall between Categories 1 and 2 of the Manu Kovi tariffs.  There is some element of viciousness, judging from the wounds on the deceased and their locations on the body and a dangerous weapon (a bush knife) was used.  There is no doubt in my mind that there was a strong intention to cause grievous bodily harm. Why else would someone inflict penetrating wounds to the deceased’s chest if not to cause grievous bodily harm?  So contrary to the defence counsel’s submission that the prisoner pleaded guilty for inflicting a single wound only the evidence and the prisoner’s own admission in the Record of Interview which I have the liberty to rely upon reveals otherwise.

30.	The circumstances of this case are similar to The State v Anton (supra) and I agree with His Honour Cannings, J. that murders of this kind should attract starting points between 16 – 20 years i.e. within Category 2 of the Manu Kovi tariffs.

31.	Another young life has been unnecessarily snuffed out by another young man for no apparent reason at all.  And sadly again, the uncontrolled anger that led to this unnecessary death was fuelled by alcohol. The prisoner in his drunken state thought nothing at all about the sanctity of life when he un-leased his anger on the deceased.  The depositions show that he ran back for the knife, picked it up ran after the deceased and then set upon assaulting him with it. 

32.	In the circumstances of this case, I should think that a starting point should be 16 years. Because of the prisoner’s plea and other mitigating factors, I shall fix a head sentence of 15 years.  From this, the period spent in custody – 3 years, five (5) months and 9 days – shall be deducted.  The prisoner shall therefore serve a period of 11 years, 6 months and 21 days at Giligili.

33.	None of these shall be suspended.

Sentenced accordingly.

______________________________________________________________
The Public Prosecutor:	Lawyers for the State
The Public Solicitor:	Lawyers for the Prisoner