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State v Dadu [2017] PGNC 211; N6881 (22 September 2017)

N6881

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1119 & 1120 OF 2014

THE STATE

V

MOSES DADU

AND

SYLVESTER DADU

Cannings J: Madang
2017: 17 March, 7, 22 September

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offenders chased and stabbed victim after altercation in market – no evidence of provocation by victim – victim unarmed.

This is a judgment on sentence for wilful murder. The offenders, who are brothers, aged 19 and 18 years respectively at the time of the offence, were convicted after trial. There had been a fight in a market between two groups of young men. One group, of which the offenders were members, chased the other group, which included the deceased. While being chased, the deceased fell and then he was stabbed twice by the offenders, once in the right axilla (armpit) area to a depth of 8 cm, and once in the right posterior chest region to a depth of 7 cm. The deceased died soon afterwards. The Court found that each of the offenders unlawfully killed the deceased intending to cause his death. They were adjudged to have had equal involvement in commission of the offence. Their personal circumstances were the same, the significant distinguishing feature for sentencing purposes being that the second offender escaped from lawful custody after delivery of verdict and before sentence and was still at large on the date of the last hearing. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for this sort of wilful murder (trial, special aggravating factors, mitigating factors reduced in weight or rendered insignificant by gravity of offence, brutal killing, killing of defenceless, harmless person, offensive weapon used) is life imprisonment.

(2) Mitigating factors: no prior convictions and a spontaneous incident with no planning involved and some compensation paid to relatives of the deceased; and for the first offender, but not the second offender, no bad community record, expression of remorse and high degree of co-operation with the Police, the Correctional Service and the Court.

(3) Aggravating factors: use of lethal weapon, brutal killing, multiple stab wounds, killing of defenceless person.

(4) The mitigating factors warrant a sentence below the starting point. The sentence for the first offender was 24 years imprisonment and the sentence for the second offender was 30 years imprisonment. There was no suspension of either sentence.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Chris Baurek CR 146/2009, 26.05.10
The State v Isak Wapsi (2009) N3695
The State v Joel Otariv (2011) N4409
The State v Kenny Koget, Edwin Koget, Robert Koget, Moses Dadu & Sylvester Dadu (2017) N6682
The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591
The State v Luther Francis Melo (2016) N6267
The State v Mark Bongede (2012) N4683
The State v Mathew Lewaripa (2015) N6151
The State v Mathew Misek (2012) N4561
The State v Moses Nasres (2008) N3302
The State v Seth Ujan Talil (2010) N4159
The State v Tun Mai Isaac (2014) N5595

SENTENCE

This was a judgment on sentence for two offenders convicted of wilful murder.

Counsel

F K Popeu, for the State
A Meten, for the offenders

22^nd September, 2017

1. CANNINGS J: This is the decision on sentence for Moses Dadu and Sylvester Dadu who were convicted after trial of one count of wilful murder under Section 299(1) of the Criminal Code.
   
2. The offenders are brothers, aged 19 and 18 years respectively at the time of the offence, which was committed on the morning of Sunday 6 July 2014 at Bemlon, in the Vidar area of Madang District, Madang Province. There had been a fight in the market between two groups of young men. One group, of which the offenders were members, chased the other group, which included the deceased, Patrick Ngsem, aged 26 years. While being chased, the deceased fell and then the offenders stabbed him twice, once in the right axilla (armpit) area to a depth of 8 cm, and once in the right posterior chest region to a depth of 7 cm. The deceased died soon afterwards. The Court found that each of the offenders unlawfully killed the deceased intending to cause his death. Further details of the circumstances of the offence are in the judgment on verdict, The State v Kenny Koget, Edwin Koget, Robert Koget, Moses Dadu & Sylvester Dadu (2017) N6682.
   
3. Though jointly tried and convicted and subject to a joint sentencing hearing, each offender must be individually sentenced in a way that takes account of his level of involvement in the offence and his individual circumstances. In that regard, I state that:
   

• each offender is adjudged to have had an equal degree of involvement in the crime;
  
• each offender’s age, background and personal circumstances are similar (each of them is now aged in his early 20s, with limited education and a villager, and they are biological brothers).
  

4. The significant distinguishing feature of the offenders’ circumstances is that the second offender, Sylvester Dadu, escaped from custody after the verdict and during the course of the sentencing hearing, while the first offender, Moses Dadu, did not escape and has continued at all times to cooperate with the Court.
   
5. I ruled shortly after the second offender’s escape that he had given up his right under Section 37(5) of the Constitution to be present at his trial, and would, if he were not returned to custody, be sentenced in his absence. A warrant for his arrest was issued but he was not returned to custody. He is sentenced in his absence.
   

ANTECEDENTS

6. Each offender has no prior convictions.
   

ALLOCUTUS

7. Moses Dadu made the following address to the court:
   

I apologise to the Court and to the family of the deceased for what I have done and for breaking the law of this country. It is my first time to appear in Court. I am a villager with cash crops providing me my only source of income. No one is looking after my crops and I feel that people are stealing my business. I ask the Court to give me a short time in custody so that I can go back to the village and look after my business and resolve the issues arising from the incident involving the death. My family has already paid K11, 000.00 cash compensation and two large pigs and store goods and garden food to the relatives of the deceased. I ask that the Court take these things into account when deciding on my sentence. I ask for the mercy of the Court by putting me on a good behaviour bond.

PRE-SENTENCE REPORT

8. The Madang branch of the Community Based Corrections office prepared a pre-sentence report for Moses Dadu. There was no report for Sylvester Dadu due to his escape from custody.
   
9. Moses Dadu is now aged 22 years. He is the eldest in a family of five children. His father is deceased. His mother is alive and living in the village. He has a grade 7 education. As he explained in allocutus he is essentially a villager and subsistence farmer, earning a small income from sale of cash crops such as cocoa, coconut and betel nut. There is no report of any bad behaviour in the community, prior to commission of the offence. Relatives of the deceased were interviewed and they confirmed payment of the compensation claimed by the offender in allocutus. It is worth noting, however, that the deceased’s mother was not interviewed and it is unclear whether the compensation that has been paid is ‘full’ compensation or whether it is only bel kol or whether there has been any effective reconciliation between the offender and the relatives of the deceased or degree of forgiveness or any other customary resolution of the problems caused by commission of the offence.
   

SUBMISSIONS BY DEFENCE COUNSEL

10. Mrs Meten submitted that there are substantial mitigating factors: there was no planning involved in the offence, it was a spontaneous incident, the offender has no prior convictions and Moses has cooperated with the Court and made a genuine plea for mercy so that he can settle the matter in the village, he has expressed remorse – which 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 to 30 years imprisonment. Mrs Meten submitted that the two offenders should get the same sentence due to their equal degree of involvement, but that the escape of Sylvester could be accommodated by suspending a substantial part of the sentence for Moses.
    

SUBMISSIONS BY THE STATE

11. Mr Popeu did not agree that this is a category 2 case according to the Kovi guidelines. It is at least category 3. He submitted that there was a major aggravating factor overlooked by the defence submission, relating to the circumstances of the killing, which was committed in broad daylight by two sober persons in full view of bystanders: the offenders chased the deceased and he fell and he was unarmed and at their mercy. They could have stabbed him anywhere on his body but they stabbed him on vulnerable parts of his body, showing no mercy. While the case does not warrant the death penalty, a life sentence for both offenders is warranted, Mr Popeu submitted. If, however, the Court decides to impose a term of years, the sentences should be lengthy, at least 30 years, Sylvester should get a longer sentence than Moses and none or little of the sentences should be suspended, Mr Popeu submitted.
    

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for similar offences?
• step 4: what should the head sentence be?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should any part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:
    

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided ... a person liable to death may be sentenced to imprisonment for life or for any shorter term.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. I will apply the sentencing guidelines for wilful murder given by the Supreme Court in the two leading cases: Manu Kovi v The State (2005) SC789 and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836.
    

The Kovi guidelines

15. In Kovi the Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in the following table.
    

SENTENCING GUIDELINES FOR WILFUL MURDER FROM KOVI

The Ume guidelines

16. In Ume the Supreme Court suggested that a number of different scenarios may warrant the death penalty, eg (1) killing of a child, a young or old person, or a person under some disability needing protection; (2) killing of a person in authority or responsibility in the community providing invaluable community service killed in the course of carrying out their duties or for reasons to do with the performance of their duties; (3) killing of a leader in government or the community, for political reasons; (4) killing of a person in the course of committing other crimes; (5) killing for hire; (6) killing of two or more persons in a single act or series of acts; (7) killing by a prisoner in detention or custody serving a sentence for another serious offence of violence; (8) if the offender has prior conviction(s) for murder.
    

Applying the guidelines

17. Under the Kovi guidelines I reject the defence counsel’s submission that this is a category 2 case and uphold the submission of the State that this is a category 3 case: the conviction followed a trial, there are special aggravating factors, the mitigating factors are reduced in weight or rendered insignificant by the gravity of offence, it was a brutal killing of a defenceless, harmless person, an offensive weapon was used.
    
18. Under the Ume guidelines, the case is not one of the eight types that the Supreme Court suggested would warrant the death penalty. Therefore the starting point is life imprisonment.
    

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR SIMILAR OFFENCES?

19. I have sentenced offenders for wilful murder in the cases summarised in the following table.
    

SENTENCES FOR WILFUL MURDER, 2008-2016

STEP 4: WHAT IS THE HEAD SENTENCE?

Mitigating factors

20. For both offenders:
    

• no prior convictions;
• a spontaneous incident with no planning involved;
• some compensation paid to relatives of the deceased.
  

21. For Moses Dadu only:
    

• he has no bad community record.
• he has shown a high degree of co-operation with the Police, the Correctional Service and the Court;
• expression of remorse.
  

Aggravating factors

22. For both offenders:
    

• use of a lethal weapon;
• multiple stab wounds;
• brutal killing;
• the deceased was unarmed and had fallen at the critical time and was at the mercy of the offenders who showed him no mercy.
  

Consideration

23. Comparing and contrasting the facts of this case with those summarised above, and taking account of mitigating and aggravating factors, I consider that the mitigating factors are sufficiently weighty to warrant a sentence below the starting point of life imprisonment. I impose a sentence of 30 years on Sylvester Dadu and a lesser sentence on Moses Dadu, because of the greater number of mitigating factors for him, in particular his high degree of cooperation with the justice system: 24 years imprisonment.
    

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

24. This is a matter of discretion under Section 3(2) of the Criminal Justice (Sentences) Act. For Moses Dadu there will be a deduction of the whole of the period in custody: two months and two days from the date of arrest to the date of release from custody on bail, plus six months and five days since the date of verdict, a total of eight months and one week. For Sylvester Dadu there will be no deduction as he escaped from custody after verdict and before sentence and does not deserve an exercise of discretion in his favour.
    

STEP 6: SHOULD ANY PART OF THE HEAD SENTENCE BE SUSPENDED?

25. There is insufficient evidence before the Court to warrant the suspension of any part of either sentence. The compensation that has been paid has been taken into account as a mitigating factor. There would need to be clear evidence of peace, reconciliation and/or forgiveness or a concrete plan before the Court could seriously consider suspending any part of the sentences for this very serious offence.
    

SENTENCE

Moses Dadu and Sylvester Dadu, having been convicted of one count of wilful murder under Section 299(1) of the Criminal Code, are sentenced as follows:

Sentenced accordingly.
________________________________________________________________

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