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State v Rende [2013] PGNC 44; N5220 (14 May 2013)

N5220

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.845 of 2012

THE STATE

V

MICHAEL RENDE
Prisoner

Mt. Hagen: David J
2013 : 14 March, 7 & 14 May

CRIMINAL LAW – sentence – murder – use of bush knife to commit offence – multiple wounds inflicted on deceased's body - case falling within category 3 of Manu Kovi sentencing guidelines – factors in mitigation outweigh those in aggravation – prisoner is aged 65 years – he is of advanced age – advanced age is a special mitigating factor - sentence of 24 years warranted, but 12 years imposed instead – custodial sentence – Criminal Code, Section 300 (1)(a).

Cases cited
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
The Public Prosecutor v Vangu'u Ame (1983) 424
The State v Laura (No 2) (1988-89) PNGLR 98
Lawrence Simbe v The State [1994] PNGLR 38
Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997
The State v Kore Ase (2001) N2220
Max Java v The State (2002) SC701
The State v Sumbiako Wapuko (2003) N2444
Joseph Enn v The State (2004) SC738
Sakarowa Koe v The State (2004) SC739
Kepa Wanege v The State (2004) SC742
Manu Kovi v The State (2005) SC789
John Baipu v The State (2005) SC796
The State v Maraka Jackson (2006) N3237
The State v Peter Wirundi (2010) N3994

Counsel
Mr. Joe Kesan for the State
Mr. Philip L. Kapi for the offender

SENTENCE

1. David J: This is the sentence of the Court of the prisoner, Michael Rende who was convicted on a plea of guilty to one count of the murder of Sape Michael on Sunday, 5th August 2012 at Tomba village, Tambul in the Western Highlands Province contrary to Section 300 (1)(a) of the Criminal Code. The prisoner appears before me for sentence from custody.
   
2. The short facts presented to the Court on which the prisoner was arraigned were that on Sunday, 5th August 2012 at about 08:00 o'clock in the morning, the prisoner was at his dwelling house at Tomba village, Tambul District in the Western Highlands Province with his wife, the deceased. His daughter and his mother in law had left the house to go to church and he was alone in the house with the deceased. An argument arose and as a result, the prisoner got a bush knife and chopped the deceased many times on her body including her face, left and right wrists and her neck. The deceased died as a direct consequence of the injuries she sustained from the attack. At the time when the prisoner chopped the deceased many times on her body, he intended to cause grievous bodily harm.
   
3. The prisoner made application for a pre-sentence report to be compiled and filed by the Probation Service, Mt. Hagen Branch which was granted. Submissions on sentence were deferred pending the compilation and filing of the report. The report has been filed.
   
4. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for life.
   
5. Applying the principle of proportionality, i.e., a man must be given the sentence appropriate to his crime (as to both harm done and culpability) and no more, the maximum penalty is usually reserved for the worst sort of cases of murder: see Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.
   

6. It is also settled law that each case must be decided on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38.

7. The medical report comprising the affidavit of Dr. Michael Dokup of the Mt. Hagen General Hospital sworn on 11th October 2012, the Post Mortem Report dated 15th August 2012 and the Medical Certificate of Death issued on 13th August 2012 confirms that the deceased a Melanesian who was estimated to be aged about 43 years at the time of death on Sunday, 5th August 2012 was brought to the Mt. Hagen General Hospital after her death and her body was the subject of a post mortem examination conducted by Dr. Dokup at the hospital morgue on the 13th August 2012 at about 12:00 noon. The post mortem on the deceased revealed that she sustained multiple bush knife wounds to her face, both her wrists and posterior neck and she died instantly from severed cervical spine at C5-6 level. The injuries the deceased suffered were:

(a) as to the face, a 6 x 4 cm left cheek laceration.
(b) as to the left wrist, a 7 x 4 cm laceration exposing bone and tendons.
(c) as to the right wrist, a 6 x 2 cm deep laceration exposing bone.
(d) as to the neck, a posterior wound 14 x 4 x 8 cm deep exposing severed cervical vertebrae and muscle and vessels.

8. The prisoner has no prior convictions.

9. On his allocutus, the prisoner said sorry to the deceased's family and asked for mercy. He requested the Court to take into consideration when deciding an appropriate sentence for him the welfare of his children one of whom was attending the Ialibu High School and that he was a first offender.

10. The pre-sentence report, which I have considered, reports that belkol of K8,000.00 and two pigs were paid. The deceased's relatives have demanded compensation of K100,000.00, fifty pigs and three cassowaries, but it has not been paid yet. The report further reports that the prisoner does not have the means to pay the compensation on his own and will rely on his relatives and members of the community to at least meet part of the demand. The report also reports that despite his advanced age, the prisoner is generally in good health. The report has left the options of sentence to the Court to determine.

11. The prisoner is from Pakule village, Imbongu in the Southern Highlands Province. He had been residing with the deceased and her family at her village of Tomba, Tambul in the Western Highlands Province for about three months when he committed the crime. He is 65 years old, married and previously employed by Loma Construction sealing roads, but was unemployed at the time of committing the offence. He had seven children from his marriage with the deceased, but two have died. The five surviving are aged between 8 and 25 years and the last two attend school. His parents are deceased. He is illiterate having received no formal education. There are five siblings in his family and he is the third born. The prisoner was apprehended on 12 August 2012 and he has been in custody since that time. That works out to be a period of 9 months and 2 days.

12. In mitigation, the defence submitted that:

1. the prisoner was a first offender;
2. he expressed remorse;
3. part compensation comprising K8,000.00 cash and two pigs was paid to the deceased's relatives;
4. the prisoner was of the advanced age of 65 years; and
5. there was de facto provocation.
   

13. In aggravation, the prosecution submitted that:

1. a dangerous knife in the form of a bush knife was used to commit the offence; and
   
2. the offence committed with the use of a bush knife was prevalent.
   

14. The factors which mitigate the offence are:

1. there was no pre-planning;
2. the prisoner is a first offender;
3. the prisoner cooperated with the police and made early admissions of his guilt to the police in the Record of Interview;
4. consistent with his admissions in the Record of Interview, the prisoner entered a guilty plea;
5. the prisoner expressed remorse;
6. Belkol as part of compensation payment in the sum of K8,000.00 and two pigs has been paid to the deceased's relatives.
7. the prisoner's advanced age of 65 years;
8. this was a killing in a domestic setting associated with marital discrepancies following an argument between the prisoner and the deceased;
9. there was de facto provocation;
10. welfare of the prisoner's young children; and
11. the prisoner's previous good and trouble free record.
    

15. A very advanced age of an offender is a special mitigating factor: The State v Laura (No 2) (1988-89) PNGLR 98, Lawrence Simbe v The State, Manu Kovi v The State (2005) SC789. In my view the prisoner who is aged 65 years is of a very advanced age given it is beyond the life expectancy of male Papua New Guineans.

16. As to de facto provocation, there is evidence that the deceased left the prisoner and the matrimonial home in Pakule, Imbongu in the Southern Highlands Province and returned to her village in April 2012 with the youngest daughter of the marriage namely, Meto Michael because of marriage problems. The prisoner followed the deceased to her village some three to four weeks later with the intention of bringing the deceased back to Pakule. The deceased's mother states that she gave the couple K100.00 for bus fare, but the deceased refused to go fearing for her safety. The Village Court at Tomba was approached to conduct a mediated settlement of the marriage problems of the prisoner and the deceased, but the process failed. According to the Record of Interview, on the morning of that fateful day, the prisoner asked the deceased to return with him to Pakule because he had been living in his wife's village for over three months and it was time to go. Upon hearing the deceased reply that she had separated from him and he was old and that he should leave her alone, get his children and go, he got very upset and angry and attacked her with a bush knife. The deceased's mother confirms in her witness statement that before she left for church that morning, she heard the prisoner and the deceased arguing in the house.

17. As to the welfare of the prisoner's young children, the Supreme Court in The Public Prosecutor v Vangu'u Ame (1983) 424 has warned that the effect a custodial sentence might have on the welfare of the children of an offender must not be allowed to override the seriousness of an offence committed to escape punishment. In Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997, the Supreme Court dealt made these observations on the issue:

"Welfare of loved ones such as wives and children and parents have been raised by accused persons on numerous occasions both in the National Court and this Court as mitigating factors on sentence. Those are important factors which a person should bear in mind before he sets out to commit serious crimes such as murder or wilful murder using dangerous weapons against the victim as death of such person may lead to a long period of imprisonment if convicted. Welfare of wives, children and parents are becoming lame excuses and should be treated with caution."

18. Despite considering the welfare of the prisoner's young children as a mitigating factor, I have treated the issue with caution.

19. The factors which aggravate the offence are:

1. a bush knife was used in the killing;
2. this was a vicious attack;
3. multiple wounds were inflicted on the deceased causing death to be instantaneous;
4. there was a strong desire to do grievous bodily harm;
5. he is a mature elderly person who should have known better; and
6. the offence committed with the use of a bush knife was prevalent.
   

20. As can be seen above, the factors in mitigation significantly outnumber those in aggravation.

21. Mr. Kapi for the prisoner submitted that the present case falls under category 2 of the sentencing guidelines in Manu Kovi v The State which recommends a range of sentences between 16 to 20 years. He further submitted that the appropriate sentence should be partly suspended due to the advanced age of the prisoner.

22. Mr. Kesan for the State submitted that aggravating factors present in this case warranted a sentence to be considered under category 3 of the sentencing guidelines in Manu Kovi v The State which recommends a range of sentences between 20 to 30 years. He emphasised that the prisoner had a strong desire to do grievous bodily harm upon the deceased which was demonstrated by the use of a dangerous weapon to inflict multiple injuries upon the deceased. He conceded however that the advanced age of the prisoner was an important mitigating factor in determining the appropriate sentence for the prisoner and suggested that a sentence beyond twenty years should be imposed.

23. I have considered The State v Kore Ase (2001) N2220, Max Java v The State (2002) SC701, The State v Sumbiako Wapuko (2003) N2444, Joseph Enn v The State (2004) SC738, Sakarowa Koe v The State (2004) SC739, Kepa Wanege v The State (2004) SC742, John Baipu v The State (2005) SC796, The State v Maraka Jackson (2006) N3237, and The State v Peter Wirundi (2010) N3994.

24. In The State v Kore Ase, on a guilty plea to a charge of murder, the prisoner was sentenced to fifteen years. This was a payback killing. On the date of the offence, the prisoner was told by someone that the deceased had killed his first cousin. He took a bush knife and went looking for the deceased. When he found the deceased, he chopped his head splitting the brain tissues, the left ear was chopped off, the second and third vertebra of the cervical region was completely chopped off and extended to the throat, and the upper right thigh had deep lacerations with massive muscle and tissue destructions. The deceased died from massive destruction to the spinal cord and brain and severe blood loss from the injuries.

25. In Max Java v The State, on a guilty plea to a charge of murder, the applicant was sentenced to twenty years. He then made application to the Supreme Court for his sentence to be reviewed. The brief background to that case is that on the afternoon of that fateful day, the applicant had returned home when he was informed by his wife that the deceased had destroyed their food garden. He grabbed a grass knife and went looking for the deceased. Upon seeing the applicant, the deceased tried to run away, but the deceased caught up with him and cut him several times causing severe injuries. The deceased died of massive blood loss as a result of those injuries. The application was dismissed as having no merit.

26. In The State v Sumbiako Wapuko, on a guilty plea to a charge of murder, the prisoner was sentenced to twenty years. The prisoner had approached the deceased while he was telling stories with a number of people and chopped him several times on his body with a bush knife. Wounds were inflicted on; the deceased's head including the facial region; the extensor muscle at the left elbow was severed; the right carpal bone at his right hand wrist was fractured; the middle right metacarpal was fractured; the right extensor tendons, flexor capillaries, ulna nerve, artery and vein were severed; and there was haemopneumothorax (presence of both blood and air in the pleural cavity) of the lungs. The deceased was hospitalised immediately after the incident and underwent surgery several times. The deceased's condition deteriorated and he died about two months later. The cause of death was acute liver failure due to hepatitis aggravated by the multiple knife wounds.

27. In Joseph Enn v The State, the appellant was sentenced to twenty years on a guilty plea to a charge of murder. The brief background to that case is that the appellant was at a reconciliation meeting when an argument arose between the deceased, a male and a woman which developed into a fight. The fight was stopped when another person intervened. When the deceased walked back to where he initially was to sit down, the appellant armed with a long bush knife walked up from behind him and struck him on the left side of the neck. The impact of the blow was such that the deceased's head was totally severed from his body. The appellant appealed on the basis that the sentence was excessive and that the trial judge had not considered his personal antecedents. The Supreme Court dismissed the appeal.

28. In Sakarowa Koe v The State, the appellant appealed against a sentence of twenty years imposed on a manslaughter charge on a guilty plea, arguing that it was too excessive. The Supreme Court said it was not. The brief background to that case is that the appellant had an argument with the deceased relatives at the village market over payment of charges which the appellant and another person were collecting from those who were selling their produce. The argument developed into a fight. In the course of the fight, the appellant ran to his house which was nearby, returned with his homemade shotgun and shot the deceased on his chest. The deceased died sometime later from the shotgun wound. The Supreme Court said the sentence was very lenient given the seriousness of the offence and dismissed the appeal.

29. In Kepa Wanege v The State, the Supreme Court confirmed a sentence of twenty years on a guilty plea to a charge of murder. The evidence in the National Court was that the deceased had taken some tree branches for firewood from a disputed land after an argument with the appellant and his father. The appellant and his father then followed him and attacked him from behind. He did not know that they had been following him. They cut him on his head twice with an axe using the sharpened part of the axe and also hit him all over his body with sticks resulting in serious injuries to his body. He eventually died from the injuries he sustained. The Supreme Court held that the sentence of twenty years was very lenient given the seriousness of the offence and dismissed the appeal.

30. In John Baipu v The State, the prisoner was convicted of murder on a guilty plea and sentenced to life imprisonment. His pregnant wife and father had died in the same year and he suspected that sorcery was involved. He then placed a complaint of sorcery in the hands of Village Court officials to investigate more than a year before he committed the offence and he made an undertaking not to attack any suspect. However, when he met his 70-year-old uncle who was one of the suspects, he cut his arms and legs with a bush knife and left him to bleed to death contrary to his undertaking. Upon review by the Supreme Court, the original sentence was reduced to twenty five years imprisonment in hard labour.

31. In The State v Maraka Jackson, on a guilty plea to a charge of murder, the prisoner was sentenced to twenty four years. The deceased was a Village Court Magistrate. He was killed because he was suspected of killing the prisoner's brothers by sorcery and to stop him from killing the prisoner as well. The prisoner and another person armed with long bush knives walked from their village to the deceased's village which was about 5 to 6 kilometres apart early in the morning on the date of the offence. When they arrived at the deceased's village, the deceased was still sleeping so they hid near the house and waited for him. When the deceased awoke and walked out of the house to receive his grandson from his daughter in-law, without any warning to him, the prisoner cut the deceased on his neck area twice and fled from the scene. Death was instantaneous. The cause of death was acute blood loss from severed left jugular vein and carotid artery as a result of two large lacerations below the left ear and left neck.
32. In The State v Peter Wirundi, on a guilty plea to a charge of wilful murder, the prisoner was sentenced to thirty years. The prisoner and the deceased who was his wife were walking to their village when an argument developed. The prisoner accused the deceased of having extra-marital affairs with other men. The prisoner punched the deceased and she fell to the ground. The deceased then took out a knife and swung at the prisoner which cut the prisoner's leg. The prisoner overpowered the deceased, wrestled the knife from the deceased and stabbed her on her neck, right chest which penetrated the right lung, back and abdomen. The deceased eventually died from the injuries she sustained.

33. What is the appropriate sentence for the prisoner?

34. This is a case that has most elements of category 3 of the sentencing guidelines for murder cases recommended in Manu Kovi. There was no pre-planning.

35. Except for the manslaughter case of Sakarowa Koe v The State where a shotgun was used to kill the deceased and a sentence of twenty years was confirmed on appeal and the case of Kepa Wanege v The State where an axe and sticks were used, in all the other cases, the offenders employed knives of sorts to commit the crimes. The average sentence for the murder cases cited would be just over twenty years while the wilful murder case of The State v Peter Wirundi attracted a thirty year sentence. I will consider a sentence between 20 and 30 years.

36. Taking into account all the circumstances of the present case, I think a sentence of 24 years imprisonment in hard labour would be warranted. However, I consider that grave injustice would be done if the prisoner were made to serve such a lengthy period of time in prison and most probably die in prison from old age or illness. The prisoner should be accorded a substantial discount for his advanced or old age. A term of 12 years which is half of the sentence I would otherwise have imposed is appropriate. This should not be viewed as a light let off for a very serious crime. Mathematically, the prisoner will be 77 years old when he is discharged from custody not to mention the effect of any remission of sentence accorded to him for good conduct whilst incarcerated which might bring about an early discharge. The time spent in pre-trial confinement is 9 months and 2 days. The period of pre-trial confinement shall be deducted from the head sentence leaving 11 years, 2 months and 26 days (the remaining term) to serve.

37. The gravity of the offence calls for the remaining term to be served in custody.

38. The prisoner shall be incarcerated at the Baisu Correctional Institution.

39. A warrant of commitment shall issue forthwith to execute the sentence.

Sentenced accordingly.

__________________________________________________

Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the prisoner