N5803

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1263, 1264 & 1265 of 2013

THE STATE

V
 
AARON KUMBAKOR

And

ABEL MORGAN

And

JAMES TUMAK

Vanimo: Geita J
2014: 20, 22, 23 October

CRIMINAL LAW – Criminal Code s300 (1) (a) – Murder - Sentence upon Guilty Plea - Prevalence of the crime — Need for punitive deterrent sentence.
CRIMINAL LAW – Some element of de-facto provocation present-Guilty Plea - One out of three co-accused on same indictment- Need for reduction for guilty plea in appropriate cases.

 CRIMINAL LAW – Sentence upon Guilty Plea- – Murder – No Dangerous weapons used – head sentence of 13 years less pre trial custody period of 15 months – Sentence of 11 years 9 months – Probation orders considered inappropriate. 

Cases Cited 

Goli Golu v The State [PNGLR] 653 1979
John Elipa Kalabus v The State [1988] PNGLR 193
Manu Kovi v The State [2005] PGSC 34; SC 789
Thress Kumbamong v The State (2008) SC 1017

Counsel
Ms. Sheila Luben, for State
Mrs. Alzaria Yahamani, for prisoner

JUDGMENT ON SENTENCE

23 October, 2014 

1. GEITA J: The prisoner is one of three accused persons who initially pleaded not guilty to the murder of Manuel Nali at Dali compound, Vanimo on 20 June 2013, West Sepik Province

Introduction

2.	Upon arraignment on the same charge on the date of trial, a day later, the accused Abel Morgan pleaded guilty. A provisional acceptance of his plea was recorded. His plea according to her lawyer was consistent with instructions. Having satisfied myself on reading the depositions that the evidence does support the charge I accepted his guilty plea and recorded a conviction. 

His two co-accused maintained their not guilty pleas. Their case is now mentioned for trial before the next sitting of the National Court in Vanimo before another Judge as I had already read the depositions handed up to me. Their bail of K1000 each and severally is extended. This cause was taken in fairness to the co accused to avoid bias etc. 

3.	This judgment on sentence is therefore only in respect of the prisoner, Abel Morgan. 

4.	The offence comes under section 300 (1) (a) Criminal Code and attracts a maximum penalty of life imprisonment. Courts however have discretion under Section 19 Criminal Code to order a lesser punishment. 

BRIEF FACTS 

5.	The brief facts as agreed by the Prosecution and Defence on the depositions for the plea of guilty are these. On the 20th June 2013 between 7.30pm and 8.30pm the prisoner was walking home when he made some passing comments to a women nearby who called out to her relatives for assistance. He was under the influence of liquor at the time. Her relatives (the accused) came to her rescue and assaulted the victim on two different occasions on his head and chest rendering him to collapse on his lawn. When the victim was rushed to the Vanimo General Hospital, he was pronounced dead upon arrival: an indictment under Section 300 (1) (a) of the Criminal Code with Section 7 (1) (a) (b) has also been invoked. 

ANTECEDENTS 

6.	No prior convictions are recorded. 

ALLOCUTUS 

7.	Upon administering the allocutus pursuant to section 593 of the Criminal Code, the prisoners said:

Abel Morgan	There was a reason why we fought with Nali. I fought with him using my fist and no dangerous weapon was used. I was shocked when Nali died. This is my first time in court and I ask for leniency. I want to say sorry to my family members and to the victim's family members. I broke the law. I ask to be put on probation. 	

The prisoner is a backslidden member of SDA faith and comes from Pak Island, Manus Province. He was educated up to grade 9 at Manus High School in 1996. He is not in formal employment. He comes from a family of 8 brothers and 2 sisters. His father is dead and is survived by his mother in Manus Island.

AGGRAVATING FACTORS 

8.	The circumstances of aggravation in relation to this offence are as follows:

1.	A life has been lost
2.	Nature of injury on vital part of body: head/skull
3.	No amount of compensation will bring back the lost life

MITIGATING FACTORS 

9. In mitigation, the following factors are present: 

1. No dangerous weapons were used
2. There are no elements of pre-planning
3. There are some elements of de-facto provocation	 
4. The prisoner entered a Guilty plea
5. The prisoner is a first time offender according to his antecedent report

PRE- SENTENCE REPORT

10.	Upon application by your Lawyer for a pre-sentence report one was ordered. I have gone through the report and must commend the Senior Probation Officer Mr Ben Kasanda for a fairly balanced and honest report on your behalf from all interested parties including the victim's relatives. Your caretaker relatives feel strongly that you should be returned to your home province to serve your time as you have already placed them under a lot of stress including financial loss to their meagre earnings. The victim's relatives on the other hand are demanding that you be sent to prison for a longer period of time for the murder of their relative. Not to mention that you have deprived the victim's four children of their father. 

You are a single man and unemployed with no permanent place of residence in Vanimo. Obviously with no independent financial mean and rely on your relatives in Vanimo for support. Of concern to this court is that in 2012, you were released on probation for 12 months by the Vanimo District Court. You breached those probation conditions and was imprisoned for a further three months, all within two years. Some amount of K4, 500.00 was paid as compensation by the three of you and your Dali community to the relatives of the victim. Your part of the contribution paid by your uncle and the Manus community amounted to K700.00. Your pre sentence report also states that you are a back slidden member of the SDA church. 

Your suitability for probation is somewhat thwarted by your prior conviction for assault and probation breaches. The Probation Office is left with very little option available to them but to recommend that the court uses its discretion to consider other appropriate penalties in view of the seriousness of the crime committed. 

SUBMISSIONS FOR AND ON BEHALF OF THE PRISONER 

11.	In her brief oral submissions Defence Lawyer Mrs. Alzaria Yahamani conceded that the crime was serious and warranted a custodial sentence, however she invited the court to also look into other sentencing options available to it. She submitted that a sentencing tariff within the lower end of category 1 in the Manu Kovi v The State (2005) N 789 case should be considered ie.12 years. The court was also invited to consider alternative sentencing options under s19 of the Code. Defence Counsel submitted that a head sentence of 10 years should be considered with deductions of pre trial custody of 1 year 3 months. Mrs Yahamani also urged that the prisoner be transferred to his home province Manus to serve his sentence.

SUBMISSIONS FOR AND ON BEHALF OF THE STATE 

12.	The State Prosecutor Ms. Sheila Luben however submitted at the outset that all homicide cases were serious in nature and should warrant custodial sentences as a starting point. She advanced that the upper range of category 1 sentencing tariff in Manu Kovi case (supra) of between 13 to 15 years should be considered in light of the seriousness and gravity of the murder. The deceased suffered injuries on vital parts of his body as a direct result of the group attack: his head and side of face. An innocent life has been taken away, leaving his 4 surviving children, now orphans as their mother has since died. Ms Luben submitted that no amount of compensation would return the victim to life and for court's decision not to be influenced by the payment of compensation. The deceased was attacked twice by the prisoner in company of his two friends, hence a group attack. 

The prisoner's aggravating factors far outweigh his mitigating factors and invited the Court to take these factors into consideration in arriving at an appropriate sentence. The prisoner was not a youthful offender as conceded to by Defence Counsel and that Ms. Luben submitted that given the seriousness of this crime of violence and its prevalence in the country the court should impose a deterrence sentence of between 13 to 15 years. State Lawyer submitted that despite no prior convictions recorded in the prisoner's antecedent's report, the prisoner's pre sentence report records a prior conviction of assault in 2012 with probation breaches from the District Court.

APPLICATION TO THIS CASE 

Sentencing

13.	Since both counsels have relied on the sentencing tariffs in the case of Manu Kovi (supra) I should point out that another Supreme Court decision of Thress Kumbamong v The State (2008) SC 1017 has departed from the fixed sentencing tariffs pronounced therein. The 2008 Supreme Court was of the view that the proscribed minimum and maximum sentences restricted the discretionary sentencing powers of trial judges. With the greatest of respect I too hold the view that trial judges discretionary powers in sentencing should be zealously guarded and not curtailed, save for Parliamentary intervention. Notwithstanding Thress Kumbamong case (supra) I will hold myself to be guided by the sentencing tariff in Manu Kovi. I set out here under the tariff for ease of reference.

SENTENCING TARIFF FOR MURDER OFFENCES

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER	
CATEGORY 1	-15 – 20years	-12 – 15 years	-8 – 12 years	
Plea. 
-Ordinary cases. 
-Mitigating factors with no aggravating factors.	-No weapons used. 
-Little or no pre-meditation or pre-planning. 
-Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning.
-Minimum force used. 
-Absence of strong intent to do GBH.	-No weapon used. 
-Victim emotional under stress and de facto provocation e.g. killings in domestic setting. 
-Killing follows immediately after argument.
-Little or no preparation.
- Minimal force used. 
-Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases. 	
CATEGORY 2	-20 – 30 years-	-16 – 20 years	-13 – 16 years	
Trial or Plea. 
-Mitigating factors with aggravating factors.	-Pre-planned. Vicious attack. 
- Weapons used. 
-Strong desire to kill.	-No strong intent to do GBH.
-Weapons used.
-Some pre-planning
-Some element of viciousness.	-Using offensive weapon, such as knife on vulnerable parts of body.
-Vicious attack. 
-Multiple injuries.
-Some deliberate intention to harm.
-Pre-planning. 	
CATEGORY 3	-Life Imprisonment-	- 20 – 30 years-	-17 – 25 years	
Trial or plea
-Special Aggravating 
factors. 
-Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	-Brutal killing. Killing in cold blood
-Killing of innocent, defenceless or harmless person. 
-Dangerous or offensive weapons used.
-Killing accompanied by other serious offence.
Victim young or old.
-Pre-planned and pre-meditated.
-Strong desire to kill.	-Pre-planned. Vicious attack.
-Strong desire to do GBH.
-Dangerous or offensive weapons used e.g. gun or axe.
-Other offences of violence committed.	-Dangerous weapons used e.g. gun or axe. 
-Vicious and planned attack.
-Deliberate intention to harm.
-Little or no regard for safety of human life. 	
CATEGORY 4	- DEATH -	- LIFE IMPRISONMENT-	-LIFE IMPRISONMENT-	
WORST CASE – Trial or Plea
-Special aggravating factors. 
-No extenuating circumstances. 
-No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.		-Pre-meditated attack.
-Brutal killing, in cold blood.
-Killing of innocent, harmless person.
-Killing in the course of committing another serious offence.
-Complete disregard for human life.	-Some element of viciousness and brutality.
-Some pre-planning and pre-meditation.
-Killing of innocent, harmless person.
-Complete disregard for human life. 	

14.	 I now move on to consider whether the offence committed by the prisoner was of the worst type and whether the court should impose the maximum prescribed sentence i.e. life imprisonment. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases (Goli Golu v The State [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193). Although I agree with the State's submission that this act of killing was uncalled for, unwarranted and cowardly and an innocent life tragically lost, I do not consider this murder any more vicious, callous and or gruesome under the circumstances it was carried out. I will refrain from imposing the maximum sentence. 

15.	Secondly, what than should the appropriate sentence be in this case? Having had the benefit of oral submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner, I need not restate them here again. The death however was tragic and not warranted. I hold the view that besides the few mitigating factor favourable to you, your change of heart at the eleventh hour to change your plea to guilty must be accorded with some credence in my view. Your actions took everybody by surprise including your lawyer and your two co-accused. 

16.	Having recently joined the bench of the National Court and my limited experience, I am not aware of any comprehensive discussion in our case law why courts give discounts for guilty pleas and the measure of those discounts. Generally courts tend to lean towards leniency on pleas of guilty if they are timely. Some reasons advanced by courts include huge saving on courts time, savings on all sectors associated with mounting the trial, the avoidance of stress and trauma of victims giving evidence, especially in sexual offence cases. In the matter before me you have made a very big decision knowing that the maximum penalty in homicide cases is life imprisonment. Whatever it is that caused you to change your mind, I don't know but to my mind one thing is fairly clear: you showed evidence of remorse. I consider this as important. This came out very strongly in your pre sentence report in that the victim punched you first in your mouth and you retaliated in like manner. You walked away and he also walked away. His death half an hour later came as a shock and surprise to you as you only used your fist and no dangerous weapon was used.

17.	Furthermore the crime was alleged to be committed by you and your two friends, yet to be tried, however you have come forward and admitted your guilt. My perusal of the court depositions reveal that your friends also took part in this crime. It follows that they should also be punished however as to what degree of culpability to be placed and the resultant sentence remains to be seen. I take judicial notice that two other persons were indicted on the same charge and are still at large on extended bail. Their fate remains to be decided by another National Court. To this end I am only left with whatever evidence/information together with your mitigating and aggravating factors to come up with a sentence most appropriate under the circumstances. I have noted your guilty plea and entered a conviction against you but based on the evidence before me I am of the view that you should not shoulder all the blame as others may have been involved. Again I must consider some discount in your favour. 

18.	Quite apart from whatever reasons which prompted you to commit that crime, the dreaded alcohol or beer has once again emerged its ugly head in this murder. This time it was brought upon by the victim himself as he was drunk at the time and went looking for a fight the second time, a case of de-facto provocation. He too must take some of the blame. Conversely you and your two friends acted cowardly by assaulting a drunk on the street, causing his death instead of preventing what first started as a call from a women for prevention or intervention and not a call for a crime to be committed, manifesting your intentions to cause grievous bodily harm. There is no evidence before me to show that, that woman was in distress or in grave danger. 

Do I consider this murder serious and why?

19.	First up is that you have denied the victim's four children of their father. Serious crime committed. The community is abhorred and now expects that you be punished harshly by incarceration. 

20.	Secondly although no dangerous weapon was used, save your fist as you stated in your allocutus, although not as lethal as a gun or an offensive weapon for instance a knife, once the blows from your first were used in a manner and nature resulting in very serious injuries, as has happened in this case, makes this case a more serious case of murder. Tougher sentence is therefore called for. 

21.	The principles of sentencing are engrained in four main pillars: deterrence, rehabilitation, restitution, and retribution. The more serious the offence or crime, deterrence and rehabilitation are often employed by trial Judges. In the case of John Elipa Kalabus v The State [1988] PNGLR 193, the former Chief Justice Sir Buri Kidu had this to say: 

"There are various purposes of punishments and they include rehabilitation. But rehabilitation of a criminal must not be allowed to obscure the consideration of deterrence and protection of the public from the commission of crimes". (Emphasis mine) 

I too, am more inclined with this thinking and adopt John Elipa Kalabus in this judgment.

22.	The prisoner's family has paid more than K700.00 in cash as part of the overall compensation or "belkol" monies of more than K4500.00 to the victims' relatives. May I add here that an order for compensation is an additional form of punishment allowed by the Criminal Law (Compensation) Act 1991. The compensation paid is less than the maximum, K5, 000.00 allowed by the Act: nonetheless the seriousness of the crime, will not compensate the loss of a life hence it, is of little consequence because it will not affect the punishment in any substantial way. The payment of compensation cannot exonerate the prisoner; it can only mitigate his sentence. I have decided against making orders for extra compensation based on your Means Assessment Report. You and your relatives do not have the capacity to pay any form of monetary outlay. To do so would amount to further hardships. Your plea for probation is noted however your prior conviction and probation breaches must go against you. You introduced those prior convictions in your pre-sentence report and like any other matters courts use in your favour, like treatment must be given to matters contained in your pre sentence report which go against you. This I have done. 

23.	As I said earlier the maximum penalty for murder is imprisonment for life as prescribed by Section 300 (1) (a) of the Code. This is however subject to the sentencing discretion vested upon court by Section 19 of the Criminal Code. Might I add here that the art of sentencing is not a science but is loaded with the exercise of discretion? Your guilty plea and all mitigating factors favourable to you have been considered despite some discrepancies. 

24.	Having had the benefit of the helpful arguments for and against the prisoner and all other considerations canvassed above, I have arrived at a conclusion that your case is considered exceptional. Therefore not withstanding the aggravating circumstances which in my view have been cancelled out by your mitigating circumstances and in the exercise of my discretion the appropriate head sentence I will impose upon you is within the lower range of category 1 in the Manu Kovi sentencing tariff: 13 years. There will be a deduction of fifteen months from your sentence for the time spent whilst waiting for your trial. 

25.	I have decided against transferring you to Lorengau Correctional Service to serve out your sentence. There is no information before me from Correctional Service in Vanimo supporting your request for a transfer. One thing I do know with certainty is that Correctional Service Goal in Lorengau do not have the capacity to hold long term prisoners: those with goal terms beyond two years. Lorengau is within my circuit jurisdiction.

SENTENCE.

Abel Morgan	Sentenced to 	13 years	
	Less pre trial custody period. 	 1 year 3 months	
	Balance sentence to be served	11 years 9 months	

Sentence accordingly
__________________________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Prisoner