N5911

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 879 of 2014

THE STATE

-V-

STEWARD PAISE

Vanimo: Geita J
2015: February 11, 13

CRIMINAL LAW – Guilty Plea – Murder, section 300 (1) (a) of the Criminal Code – Decision on verdict – Dangerous weapon used– Bush knife – lower left arm severed resulting amputation - cold blooded killing.

CRIMINAL LAW – Sentence - Favourable mitigating and aggravating circumstances- extenuating circumstances not available -first time offender - Sentenced to 17 years – Pre trial custody of 11 months deducted. 

Cases Cited

Goli Golu v The State [1979] PNGLR 653 
John Kalabus v The State [1988] PNGLR 193
Kovi v The State [2005] PGSC 34; SC 789 
Steven Loke Ume &Ors v. The State (2006) SC836
John Baipu v The State (2005) SC796
Mary Bomai Michael vs. The State (2004) SC737
The State v Sebastian Justin Kelly CR 75/2001

JUDGMENT ON SENTENCE

Counsel:

Ms Barbra Gore, for the State
Mr. Baptist Fehi, for the Prisoner

13th February, 2015

1. GEITA J: The prisoner Steward Paise has pleaded guilty to one count of murder contrary to s.300 (1) (a) of the Criminal Code Act. This offence attracts a maximum penalty of life imprisonment however Section 19 (1) (a) (b) of the Criminal Code gives courts powers to impose a lesser sentence. 

The Facts:

2.	The relevant facts put to you during your arraignment and the agreed facts by the prosecution and your lawyer on the depositions for the plea of guilty with your consent are these. On the night of 15 February 2014, you cut off the head of your brother with your bush knife five times and hid his body in the nearby river. You also cut off one of his fingers and later attempted to sell it to Batel Manuel saying it had power. You were arrested and admitted to the killing. 

Allocutus 

3.	When you were given the opportunity to speak on the question of penalty you said you were sorry to the court and to the deceased's family. You said after serving your sentence you will not do the same thing again.

Pre Sentence Report

4.	The prisoner is aged 26years, single male and comes from Yakamul No. 2 village in Aitape-Lumi District, West Sepik Province. He was educated up to Grade 8 at Aitape High School and lives with his parents. He comes from a family of four brothers and two sisters and survives on subsistence farming. He appears to be in good health and showed no signs of fear or remorse. The prisoner's parents showed no sympathy for their son and called for a term of life imprisonment as the killing was barbaric and done in cold blood. No recommendations were made by the Probation Officer for the prisoner's suitability for probation. 

Mitigation Circumstances.

5.	1. No prior conviction, 
2. Villager,
3. Co-operated with police and village elders during the investigations,
4. First time offender.

Aggravating Circumstances

6.	1. Use of dangerous weapon, bush knife used in the attack,
2. Multiple wounds inflicted,
3. Prevalence
4. Cold blooded killing.

Submissions on sentence 

7.	In his oral submission Defence Lawyer Mr. Baptist Fehi referred me to the case of Manu Kovi v The State (2005) N 789 and submitted that this case falls within the category 2 range attracting a sentence range from between 16 years to 20 years. He conceded that the murder was serious and callous. He advanced that the prisoner acted under extenuation circumstances at the time. Some of these include the belief of sorcery associated with this killing, lack of sophistication in support of his oral submissions. Mr. Fehi drew my attention to these two cases and invited the court to consider the extenuating factors available to the prisoner in sentencing (Steven Loke Ume &Ors v. The State (2006) SC836 and John Baipu v The State (2005) SC796.)

8.	State Prosecutor Mrs Barbra Gore submitted that the upper range of category 2 sentencing tariff in Manu Kovi case (supra) of 16 to 20 years to be considered in light of the seriousness and gravity of the murder. She advanced that a bush knife was used to inflict multiple injuries to the deceased's neck and body. And the killing was merciless upon his own brother. The only plausible mitigation circumstances in favour of the prisoner according to Mrs Gore was her plea of guilt and the prisoner being a youthful offender which is outweighed by aggravating circumstances. Mrs Gore argued that the sentence in the case of The State v Sebastian Justin Kelly CR 75/2001 be considered. Brief facts: Guilty plea – vicious attack on a relative who was asleep and unarmed – Bialla – offender used a bush knife – suggestion that the offender was mentally unbalanced. 

Remarks

9.	I am mindful of the fact that from the time of your pre trial custody to the day of sentence today, which I estimate to be almost 11 months. The deceased's family call for a life imprisonment is analogous to the general public's call for courts to impose tougher sentences in such cold blooded killings. In the case of Mary Bomai Michael vs. The State (2004) SC737, the Supreme Court expressed the views, which I also endorse:

"The community looks to the Courts for justice and for the protection of its interest. The Courts must therefore be responsive to the needs of the communities. If the community demands tougher penalties for serious violent offences, the Courts just cannot ignore this and turn a blind eye to the needs of the community. Indirectly, we may be contributing to the escalating prevalence of the crimes when we let serious violent offenders walk free or impose very inadequate or suspended sentences on serious violent crimes as has been seen in more recent times. Of course, we do not, for one moment, suggest that the Courts should be influenced by public demands; however, at least, if the community is complaining that the Courts are not appropriately punishing violent offenders, it is a valid issue that must be considered. Ignoring the community's concerns may lead to distrust in the judicial system and may provide the catalyst for destructive self-help schemes such as pay back. That would in turn prove a good recipe for a serious break down in law and order and anarchy. We are now experiencing an unprecedented and a high level of crime. Judges now have the serious responsibility on behalf of the society to ensure this does not get out of control by paying close and serious attention to the kind of penalties imposed for those who are found guilty of committing serious violent offences like rape, murder, wilful murder and armed robbery." (emphasis mine) 

Decision of the court

10.	I have taken into account the cases referred to me by both counsels and their respective pleas for their utility for and against their clients.

11. 	I next look at whether the offence committed by the prisoner is of the worst type and whether the court should impose the maximum prescribed sentence. 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). I am more inclined to agree with the State contention that the murder was callous and done in cold blood. The remaining extenuating factors available to the prisoner in my view will not greatly mitigate his wrong. The prisoner did not act under extreme extenuation circumstances nor his lack of sophistication credible. He reached high school education. His call for the crime committed under traditional beliefs and customs again is not supported by credible evidence before me hence disregarded. 

12.	The second issue is framed in this question and that is what an appropriate sentence in your case is? I have had the benefit of 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. Although the death was tragic, not warranted and possibly bordering on the shadows of being categorized as falling within the ambit of the "worst types" wilful murder cases. I will not impose the maximum death sentence instead I will impose a sentence in years within the upper range of Category 2 which I consider most appropriate. This will also reflect the aspirations of the community. 

13.	From a head sentence of 20 years I have made allowance for your favourable mitigating factors. This is coupled with the fact that you pleaded guilty to this crime which saved the State time and money in running a full trial. It is often said that offenders who admit their crimes at very early stages of the criminal justice process must be rewarded with reductions in their ultimate sentences and this I do so now in your case. I will deduct a nominal term of 3 years from your head sentence which will leave you with 17 years.

14.	After the benefit which I have had on the cases presented before me and the most helpful arguments for and against I have come to the conclusion that the appropriate sentence to be imposed upon you is as follows:

1.	You are sentenced to 17 years imprisonment in hard labour,
2.	I order a deduction of 11 months for your pre trial custody period,
3.	Resultant term of sentence: 16 years 1 month.

Orders accordingly,
__________________________________________________________

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