State v Ururu [2015] PGNC 291; N5980 (4 June 2015)

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CRIMINAL LAW – sentencing – murder – Criminal Code, Section 300(1) – guilty plea – offender killed his step-sister, a 13-year-old girl, by a single bushknife wound to the neck – victim offered no provocation and entirely innocent – vicious, surprise attack – sentence of 30 years imprisonment.

The offender, 19 years old at the time, suddenly approached his 13-year-old step-sister, grabbed her by the hair and used a bushknife to cut her on the back of her neck, almost severing the head. She died instantly. He pleaded guilty to murder. This is the judgment on sentence.

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v David Solomon Lingen CR No 1292/2009, 20.11.09
The State v Jacob Aku Matai (2011) N4256
The State v Julius Kembu CR No 288/2009, 23.04.09
The State v Rudolph Reme Koki (2007) N5049

1. CANNINGS J: This is a judgment on sentence for John Ururu who has been convicted of murder under Section 300(1)(a) of the Criminal Code. He pleaded guilty to the murder of his 13-year-old step-sister, Jeromina John. The deceased was the biological daughter of the offender's biological mother. The offence was committed at Bomase hamlet, Rempi village, Madang Province, between 7.00 and 8.00 pm on Sunday 24 November 2013. The offender was aged 19 at that time. The deceased had with other young village girls been rehearsing for a graduation ceremony at St Boniface Primary School. The offender waited under a tree for the deceased to finish the rehearsal. He was armed with a short bushknife. As the deceased started to walk home, he approached her without warning, grabbed her by the hair and used the bushknife to cut her on the back of her neck, almost severing the head. She died instantly. A post-mortem report revealed that the deceased died due to hypovolaemic shock (a decreased volume of circulating blood in the body) as a result of a severed right carotid (one of the two main arteries carrying blood to the head and neck) and jugular vein (a large vein in the neck carrying blood from the head and face).

3. The offender was given the opportunity to address the Court on the question of sentence. He stated:

I apologise to the Heavenly Father and the family of the deceased and to this Court and to the community. I ask for forgiveness. I promise in the eyes of God and the Court that I will not commit this sort of crime again. As from today I will stand to do only good things and to correct what I have done. I will show that I have learned from my mistake. I ask for the mercy of the Court.

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). There is very little in that material that mitigates the gravity of the crime. What can be found, however, is that there was a deep level of mistrust and a relationship of hatred between the offender and his stepfather, the biological father of the deceased. To the extent that any explanation can be found for commission of this sort of crime, it might lie in that relationship; and it might be said that the offender committed this crime as some sort of act of spite against his stepfather.

5. John Ururu is 20 years old and single. His biological parents separated when he was three years old. His mother married a man from Rempi and lived there. The offender was raised by his relatives at Giri village, Bogia District. The name Ururu is the name of his guardians. After completing his grade 8 examinations in 2011, he went to live with his biological mother at Rempi. He asked her and his stepfather for financial assistance to continue his education. He stayed at Rempi for almost two years before committing the offence. He had a very poor relationship with his stepfather. There were many conflicts between them. No financial assistance was forthcoming. The offender felt rejected.

6. His biological mother has always regarded him as a good boy who does not consume alcohol or drugs. He had shown no signs of being capable of committing such a crime. He had no behavioural problems and was not a troublemaker. She retained a close relationship with him after he left her immediate care when he was three years old. He often visited her at Rempi. She was aware of the poor relationship he had with his stepfather. She understands that despite his many fine traits her son has committed a very serious crime for which he must be punished. She says that he has put a pain in her heart that will not be erased by anything on Earth. The offender's stepfather said nothing favourable about the offender. As far as he is concerned the offender planned to commit the offence and must be punished accordingly. The pre-sentence report prepared by the Madang branch of the Community Based Corrections Service concludes that the offender is not suitable for probation.

7. Mr Morog highlighted the guilty plea and asked the Court to regard this as a spontaneous offence, committed by the offender because of mistreatment by his stepfather. The offender has expressed remorse and made a genuine plea for mercy. He is also a victim, Mr Morog submitted. He should be given the opportunity to be rehabilitated, which is unlikely if he is given a life sentence. The mitigating factors are strong enough to bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, and make the appropriate sentence no more than 20 years imprisonment.

8. Mr Pil did not agree that this was a category 2 case according to the Kovi guidelines. This was a killing committed in cold blood. The victim was an entirely innocent young girl. The offence should be regarded as premeditated. A death in these circumstances warrants a sentence of life imprisonment.

9. To determine the appropriate penalty I will adopt the following decision making process:

10. The maximum penalty for murder under Section 300(1) of the Criminal Code is life imprisonment. The offender was not convicted of the more serious offence of wilful murder. Hence the death penalty is not applicable.

11. I will apply the sentencing guidelines for murder from the leading Supreme Court case of Manu Kovi v The State (2005) SC789.

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated 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.	Life imprisonment

12. I reject Mr Morog's submission that this case falls within category 2. It cannot be regarded as a spontaneous incident. There was an element of planning involved. The victim offered no provocation. She was harmless and innocent. This is a category 3 case. There are special aggravating factors and the mitigating factors are rendered insignificant by the gravity of offence. It was a vicious attack, exhibiting a strong desire to do grievous bodily harm, and an offensive weapon was used. The starting point is 20 to 30 years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

13. Four cases I have decided provide useful precedents. In the Kimbe case of The State v Rudolph Reme Koki (2007) N5049 the offender pleaded guilty to the murder of his wife. He came home drunk, argued with his wife, they fought and he beat her death. It was dealt with as a category 3 offence under the Kovi guidelines in view of the relentless brutality involved, showing a strong desire to inflict grievous bodily harm. The offender surrendered to the Police and made admissions but the aggravating factors were very strong, resulting in a sentence of 28 years imprisonment.

14. In the Kimbe case of The State v Julius Kembu CR No 288/2009, 23.04.09 the offender pleaded guilty to the murder of a man who he believed had threatened his wife, had sex with her and made her pregnant. The offender, together with four others, staged a planned attack on the deceased who was busy off-loading cargo from a vehicle. The offender cut him on the back with a bushknife and the deceased ran away. The offender and the others chased him, with their knives, and inflicted further knife wounds. The deceased died through loss of blood from those injuries. It was dealt with as a category 3 case according to the Kovi guidelines. The sentence was 18 years. It was below the starting point range because of the strong element of de facto provocation and evidence of reconciliation between the offender and the deceased's relatives.

15. In the Wewak case of The State v David Solomon Lingen CR No 1292/2009, 20.11.09 the offender pleaded guilty to the murder of a man who had over a long period ill-treated him. The offender approached the deceased and attacked him with a bushknife on the right side of the neck and face. It was dealt with as a category 3 case. The sentence was 18 years, which was below the starting point range because of the strong element of de facto provocation.

16. In The State v Jacob Aku Matai (2011) N4256, the offender pleaded guilty to murdering his brother-in-law by cutting him with a bushknife several times on various parts of his body, while the deceased was working in a plantation. It was a vicious attack, arising out of long running conflict between the offender and the deceased. It was a category 3 case. The sentence was 22 years imprisonment.

17. To determine the head sentence I will focus on the starting point range of 20 to 30 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be at the bottom of or below the starting point range. The more aggravating factors present, the more likely the head sentence will be at the top of or above the starting point range. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

20. This is a case in which the aggravating factors entirely outweigh the mitigating factors. The case is more serious than Kembu, Lingen and Matai. The circumstances of the offence are horrific and deeply disturbing. The sentence must reflect the gravity of the crime. The sentence will be at the top of the starting point range. I impose a sentence of 30 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one year, six months.

22. No. While the pre-sentence report shows that the offender still enjoys the love and support of his biological mother, even she appears to understand that the offender must serve his sentence in prison. This is a case in which to suspend any part of the sentence would not reflect the sanctity of human life. There is no suspension.

23. John Ururu, having been convicted of one count of murder under Section 300(1) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	30 years
Pre-sentence period in custody to be deducted	1 year, 6 months
Resultant length of sentence to be served	28 years, 6 months
Amount of sentence suspended	Nil
Time to be served in custody	28 years, 6 months
Place of custody	Beon Correctional Institution

Sentenced accordingly.
__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender

National Court of Papua New Guinea

State v Ururu [2015] PGNC 291; N5980 (4 June 2015)