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State v Sangai [2016] PGNC 65; N6247 (10 April 2016)

N6247

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1161 OF 2014

THE STATE

V

TIMOTHY SANGAI

Waigani: Davani .J
2016: 07^th, 10^th April

CRIMINAL LAW – sentence – prisoner charged with one count of murder – guilty plea - mitigating and aggravating factors – consideration of – sentence of 20 years imposed less time spent in pre-trial custody - s. 300(1) (a) of the Criminal Code

Counsel:
Mr D. Kuvi, for the State
Mr E.Yavisa, for the Prisoner

SENTENCE

9^th April, 2016
1. DAVANI, J: Timothy Sangai (the ‘Prisoner’), pleaded guilty to 1 count of murder, charge laid under s. 300(1) (a) of the Criminal Code. This provision reads;

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 do grievously bodily harm to the person killed to some other person; or

...

Penalty: Subject to Section 19, imprisonment for life.”

FACTS
2. The Prisoner is aged 28. He was aged 26 at the date of the offence. He comes from Kikin village in Oro Bay. He is single and attends the Anglican Church. Prior to his arrest, he was residing with his aging parents in Kikin village.

3. On 26^th April, 2014, the Prisoner and 3 others went to Goliath Giponga’s (the ‘Deceased’) house where they called him names, made derogatory remarks and swore at him. This prompted the Deceased to confront the Prisoner and his accomplices. However, unbeknown to the Deceased, the Prisoner approached the Deceased from the side and struck his head with the blunt side of an axe with such force that resulted in the deceased’s skull crack and the spillage of brain matter. The Deceased died as a result of that injury.

4. The Prisoner’s attack upon the Deceased was in retaliation to a previous attack upon him by the deceased where the Deceased is alleged to have cut the Prisoner’s arm.

These are the facts the Prisoner pleaded guilty to.

MITIGATING FACTORS
5. The Prisoner’s guilty plea saved the court and the State, a lot in both time and money. However, when I administered the allocatus and asked the Prisoner if he had anything to say, he remained silent.

6. On the tendering of the antecedants by the State, the State pointed out that the Prisoner did not have any prior convictions.
Prisoner’s counsel urged me to consider the fact that there was defacto provocation which prompted or was the catalyst in the Prisoner’s violent behaviour. I elaborate on this further below.

AGGRAVATING FACTORS
7. Mr Kuvi urged me to appreciate that this was a group attack in that the Prisoner was accompanied by 3 others. That whilst the Deceased was distracted by the Prisoner’s accomplice’s, that the Prisoner then attacked the Deceased. And finally, weapons were used in the attack, as a result of which there was loss of life.

ANALYSIS OF SUBMISSIONS
8. The Deceased was attacked whilst in his compound, his home and his private sanctuary. The group of men who were involved, had no thought about the Deceased’s privacy or the consequences that would flow from that attack. It seems they were spurred on by the Prisoner’s quest for revenge. I say this because it is not disputed that there was provocation in the non legal sense. I
have heard, and which is not disputed, that in the not too recent past, the Deceased had attacked the Prisoner when he met him on a bush track, where he (the Deceased) chased the Prisoner and cut him on the arm,with a knife.

9. Mr Kuvi for the State reminded the court that the maximum penalty for the offence of murder, is life imprisonment. And that this maximum penalty is always reserved for the worst case of murder. Mr Kuvi referred me to Manu Kovi v the State (2005) SC 789. Mr Kuvi submits that this case falls within the second category of Manu Kovi, which is that on a trial or a plea, where there are mitigating and aggravating factors, there must have been some pre planning, some element of viciousness and that there was no strong intent to do grievous bodily harm. The Supreme Court listed the tariffs at 16 to 20 years.

10. Mr Kuvi submits that the aggravating features in this case, far outweigh the mitigating factors and that as such, a sentence ranging between 18 to 20 years is appropriate. He referred me to the case State v Joe Dende (2008) N5471, where 3 offenders who were part of a 10 men group, chased and attacked the deceased with bush knives during a group fight in a village setting. The court sentenced the accused to 22 years, after a trial.

11. Mr Yavisa on the other hand, referred me to the case State v Lambert (2009) N3873.Mr Yavisa submits that this case is in relation to a mob attack on the deceased where accused persons used varying weapons. Mr Yavisa submits that the prisoner was sentenced to 15 years. I am unable to confirm whether the facts of that case are correct because my research reveals that the decision “N3873” is “not available yet”. Mr Yavisa further submits that the circumstances of this case fall within the first and second category of Manu
Kovi and that as such, this court must impose a sentence between 12 to 16 years.

12. What would be an appropriate sentence for an offence of this nature? And what would be the starting point from which this court will set its sentence base?

13. I consulted a few cases to assist me reach a suitable sentence.
14. In the case State v John KanuaSiune and Kenneth KundaSiune CR Nos 384 and 385 of 2003 dated 21.12.06, after a trial involving 2 men who murdered a man they suspected of having killed a friend of theirs by sorcery, the National Court Kimbe, sentenced the men to 25 years. The conviction and sentence in this matter was recently upheld by the Supreme Court. This was a mob attack where the victim was bashed to death.

15. In State v Todd Mari (2011) N4306, dated 2.6.2011, the accused formed a common intention, with members of his mob, to attack and kill certain persons, an unlawful purpose. This was a savage and brutal attack where the deceased was cut with a bush knife and as a result, his leg was nearly severed. The court imposed a 25 year sentence after a trial.

16. The Supreme Court case of Simon Kama v The State (2004) SC 740, was very critical of Manu Kovi and the sentencing tariffs set out therein. It is only proper that this court consider the tariffs set in the both cases and in the exercise of its sentencing discretion under s.19 of the criminal Code, mete out a sentence that is appropriate under the circumstances.

17. Having said that, I find that this case falls within the second category of Simon Kama which is that where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of 17 to 30 years.

18. It would be remiss of me not to describe the Deceased’s injuries because it demonstrates the level of violence and force exhibited by the Prisoner. The autopsy report from the Popondetta General Hospital dated 27^th April, 2014 and prepared by Dr Josephine Chanoan, describes the Deceased’s injuries as;

”...

The temporal bone was fractured with multiple fragments.

The brain matter penetrated the dura and skull asaresult.

...”

The autopsy report states further;

“PATHOLOGY SUMMARY

Laceration to the head.

Penetrating trauma with skull fracture.

Exposed brain matter.

History of axe wound to the head.”

19. No doubt, the blow to the Deceased’s head from the back, blunt edge of the axe, wielded by the Prisoner, was struck with such force, that the Deceased’s skull was split open allowing brain matter to ooze out.

20. Indeed, the level of violence exhibited by the Prisoner, upon the Deceased, is certainly fairly obvious. It demonstrates that the prisoner’s intention to do to the Deceased grievous bodily harm is undenied.

21. Comparing all the above cases, more particularly Simon Kama and Manu Kovi, a sentence should be at the upper end of the scale for Simon Kama and the lower end of the scale for Manu Kovi. The starting point will be 17 years. Because of the very serious aggravating factors, and balancing against the mitigating factors, sentence is set by this Court at 20 years in hard labour at the Biru Correctional Facility.

22. The period of 20 years will be reduced by the time spent in custody whilst on remand and which will be reflected on the Certificate of Conviction.

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