N6969
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 587 Of 2017
THE STATE
V
CLEMENT WATETE
Bali-Vitu Batari, J
2017: 10th ,17th  August,

CRIMINAL LAW- Murder - Sentence – Prisoner killed own father in domestic situation - Provocation - Considerations of - Plea – Range of sentences for murder and manslaughter killings in a domestic context considered – years appropriate.

PNG Cases Cited

Lawrence Simbe v. The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC789
Rex Lialu v The State [1990] PNGLR, 487
Simon Kama -v- The State (2004) SC740 

Counsel

A. Bray, for the State
A. Tunuma, for the Accused
SENTENCE
17 August, 2017

1.	BATARI, J;  Clement Watete pleaded guilty to murdering Clement Wagelo, at Malangae Village, Bali Island, Talasea, West New Britain, contrary to s.300(1)(a) of the Criminal Code. The offence carries a maximum penalty of life imprisonment.

2.	The prisoner was the son of the deceased. He attacked and killed his father by cutting him with a bush knife almost severing his neck completely. His father died shortly after from massive blood loss. 

3.	The incident happened around 9.00pm at the family home at Malangae Village.  Earlier on during the day (Sunday), the whole family had gone to Penatabotong Village to participate in a customary event organised by their relative Bito Kandum. Many other villagers attended the dedication of headstones coupled with ritual initiations of young boys. The villagers including Clement Wagelo and his son Clement Watete drank home-brewed alcohol into the night. About 7.00pm the deceased, incensed by his sons’ late presences at their uncles’ home, scolded and told them to return home. An altercation ensued resulting in a fight between the father and son. Other relatives intervened to stop the fight and Clement Watete returned home to their Malangae village. Infuriated by his father’s hostility, he armed himself with a bush knife and spear in anticipation of his return. His father arrived shortly after and shouted angrily at his sons to leave his residential area with their wives and children. It was then that the prisoner attacked and killed his father with the bush knife.

4.	The court depositions shows the attack leading to the killing was pre-meditated. The prisoner had deliberately armed himself with a bush knife and spear and waited for his father to return home.  I take the prisoner’s account (ROI Q&A 24) that he only wanted to injure his father on the hand, as amounting to an expression of clear intention to do grievous bodily harm.
 
5.	The evidence contained in the file also reveals the deceased’s hostility precipitated the attack. He returned home unruly and threating the prisoner and his other married son with eviction from his residential area. Late as it was in the night, I consider irresponsible and foolish to carry on with a fight when a peaceful sleep would be the only urgent matter on anyone’s mind.

6.	 The precipitating hostility with strong indicators of provocation falling short of the legal defence, started from the day’s preceding events. Earlier in the evening, the deceased had insulted and disgraced his sons in front of their relatives resulting. According to a presentence report from Probationer Officer, Mrs Elizabeth Passingan, it is a cultural taboo for a parent to insult a son or daughter in front of an uncle or aunty. Such conduct would call for immediate customary reprieve and sanction by compensation. I think that tradition is common throughout this region. 
 
7.	The common facts further suggest that the deceased had a history of animosity and violence towards his wife and children whenever he was drunk. His conduct contributed to the killing. He initially humiliated the prisoner in front of other relatives. Then he returned home and continued with his hostility towards the prisoner and his other siblings. No one should put up with such violent, uncaring parent.  But, he did not have to die. The family animosity and discord can be amicably resolved in a more civilized and lawful way. Nevertheless, the killing here has a special mitigating factor in the nature of a domestic related killing with strong elements of de facto provocation.

8.	Any type, form or manner and degree of unlawful killing is always the most serious breach of the criminal law. It is repugnant to the civil norm and abhorred by those who treasure the right to life. Unlawful killing involves premature termination of the human life and violates a fundamental constitutional right to the sanctity of a God-given life.  For those reasons, the ultimate punishment by death is prescribed by Parliament for wilful murder while the maximum penalty of life imprisonment is reserved for murder under s. 300 and manslaughter under 302 of the Criminal Code.

9.	The penal servitude of life imprisonment for murder is not mandatory. Section 19 of the Code sets out different sentencing options the court can use and apply as the particular circumstances of each case may warrant, always bearing in mind that the maximum penalty indicates the seriousness of the offence when calculating the relative punishment to be imposed.

10.	The Court is also guided by settled principles from precedent cases that are applicable to the offence and the particular facts of each case.  In Simon Kama -v- The State (2004) SC740 the Supreme Court suggested revised guidelines for homicide cases. In the following year, the Supreme Court in often cited case of Manu Kovi v The State (2005) SC789 made a further attempt to provide uniform guideline for murder cases as follows;

“1.	In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years.  A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors. 

2.	In a contested or uncontested case, with mitigating factors and aggravating factors, a sentence of 16 – 20 years imprisonment.

3.	 In a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20 – 30 years.  

4.	In contested or uncontested cases, the maximum of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons substances; summary execution style killings; killings in full view of public without regard for the safety and lives of others, etc. These are cases where there are no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime.”

11.	I bear in mind that sentences for murder will normally be lower than sentences for wilful murder except in the most serious cases where murder is charged as a result of plea bargaining and any further reduction of sentence would be inappropriate.  In the worst case scenario for murder killing, the maximum penalty of life imprisonment may be justified.

12.	These propositions fortify the basic sentencing notion that the sentencing authority must have careful regard to the circumstances of death and the way in which death was actually caused. His Honour Kapi DCJ (as he then was) made this observation in a manslaughter killing case in the Supreme Court case of Rex Lialu v The State [1990] PNGLR, 487 at 497:

"In considering the penalty for manslaughter cases, I adopt the words of Watkins LJ in R v Phillips (1985) 7 Cr App R (S) 235 at 237.
'The Court has to pay very careful regard to the circumstances of death, and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about.'" as stated in R v Phillips [1985] CR APP (RS) 235 at 237”.

13.	This principle applies to murder killings. In Lawrence Simbe v. The State [1994] PNGLR 38 the Supreme Court dismissed an appeal against sentence and affirmed the term of 14 years imposed by the National Court.

14.	In this case, the prisoner attacked his father with a bush knife in the most chilling and cowardly fashion. It is a notorious fact that a knife is readily used in confrontations between parties over all manner of differences and disputes.  A knife is a dangerous weapon by nature and legal definition. Every time a knife is in one’s possession lawfully or not, it becomes an instant weapon and someone is either seriously hurt or killed.
  
15.	It is clear to me, that people who resort to use of weapons like knives against their rivals are cowards with propensity towards violence. They resort to violence without the slightest regard for the risk to life and health and the criminal sanction that will follow. The majority law abiding people in the community will be safe if such persons are kept away for a long time.
  
16.	Besides, it has become too common that unlawful killings as in this case are alcohol related. Such killings are the manifestation of the evil side of alcohol and drug abuse. Despite governmental and Christian influences having permeated the length and breadth of this nation, people continue to ignore the serious effect of alcohol and drug indulgence. The people must surely know that time, money and resource wastage can be put to better use and more productive purpose when they heed Christian teachings, involve in and attend church for services and worship and avoid alcohol and drugs.
 
17.	In this case, the incident occurred on a Sunday. God’s day and time was hijacked and abused for ungodly celebrations. Consequently, a very serious crime was committed. Transformation ought to take place from within so that God takes the centre everything.  Attitudes ought to change: humility ought to prevail over pride; forgiveness over aggression; restraint over haste; reconciliation over retaliation. Only then we may expect a more orderly society with lesser anti-social conduct and fewer unlawful killings.

18.	For the prisoner, I take into account that he had a good past; that he was of prior good character; that he was subjected to much emotional stress and pressure in his life by the conduct of his deceased father; that the deceased taunted and humiliated him in a provocative manner in front of his uncles and aunties; that he has not been in trouble with the law before; that he co-operated with the police in surrendering and readily admitting the offence; that he had expressed remorse and has now pleaded guilty before the Court.  He claimed his relatives paid his father’s relatives K1, 000 plus 1 pig valued at K1, 000 though a brother of the deceased said they only received K500.00 and a pig.  I conclude some form of compensation was paid to restore peace and harmony. This supports contrition.

19.	Murder killings rarely attracts non-custodial sentence. Prior to Manu Kovi v The State (supra), this kind of killing in a domestic setting has bordered between the manslaughter category and murder category. Manslaughter cases have in the past attracted punishment in the range of 6 - 8 years. The Supreme Court has also in many appeals treated cases involving killings in a domestic cases setting as having special mitigating factor warranting proportionate sentence. In unlawful killing cases, the Supreme Court has confirmed in murder cases, sentences in the range of 8 - 15 years and 3 - 10 years in manslaughter cases.

20.	In the present case the accused pleaded guilty to the crime of murder. After taking into account all the mitigating factors, I have referred to the circumstances of the present killing warrants a sentence in the range of 16-20 years under the second category in Manu Kovi v The State (supra).

21.	The prisoner is sentenced to 16 years imprisonment with hard labour. The sentence is reduced by the time spent in custody being, 8 months.  He will serve the balance of 15 years and 4 months IHL.                         
_____________________________________________________________
Public Prosecutor	: Lawyer for the State  		
Public Solicitor  	: Lawyer for the Accused