N7150

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 71 OF 2016

THE STATE

V

SAMMY SAM

Kimbe: Miviri AJ
2018: 12th February

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300-trial-Sections 7 & 8 aider’s abettors-accused hit deceased on head with 40 ounce bottle-deceased fell-co-offender stabbed deceased left lung-bleeding-death-prevalent offence-appropriate sentence.
Facts
Accused hit deceased on the head with a 40 ounce bottle of coffee punch who fell to his knees and was stabbed with a grass knife by another and died.

Held
Trial
Public standing up for right
Protection of the law
Section 7 and 8 parity of sentence.
Prisoner equal with offender who stabbed
22 years IHL minus time in remand.

Cases:
The State v Avia Aihi (No 3) [1982] PNGLR 92 
The State v Gimble [1988-89] PNGLR 271
The State v Nimagi [2004] PGSC 31; SC741
The State v Yokum [2002] PGNC 24; N2337 
The State v Porewa Wani [1979] PNGLR 593 
The State v Kovi [2005] PGSC 34; SC789 
The State v Kwapena [1978] PNGLR 316 
The State v Angitai [1983] PNGLR 185 
Acting Public Prosecutor v Mailai [1981] PNGLR 258
The State v Hagei [2005] PGNC 60; N2913
Counsel:

A. Bray, for the State
D. Kari, for the Defendant
		
SENTENCE
12th March, 2018
1.	MIVIRI AJ: This prisoner appears for his sentence for murder. He was found guilty after trial on 15th February 2018.He hit the deceased on the forehead with a 40 ounce bottle of coffee punch causing him to fall to his knees where upon another stabbed him in the back causing his death.

Murder s 300 (1) (a) CCA

2.	Section 300 (1) (a) of the Criminal Code Act prescribes the maximum of life imprisonment for the crime. Usually it is reserved for the worse case which effectively is not the case here but certainly a term of years in jail is in order given, Avia Aihi v The State (No 3) [1982] PNGLR 92. 

Facts 
3.	This is a case where prisoner was amongst a group of youths who pursued another into the premises of the deceased. Prisoner initiated and attacked the deceased in the early hours of the morning when all he did was try to stop them from fighting this person pursued who had sought refuge there. What flowed from the prisoner’s action is that the deceased was stabbed on the left side of his back by another leading to his demise.

4.	Doctor Willie Toua of the Kimbe Provincial Hospital who issued the Certificate of Death after conducting a post mortem on the body determined that the medical cause of death was Left Haemopneumothorax.  He was bleeding in his left lung as a result of the stab wound and died. He was 51 years old with no other disease or health conditions leading to his death. 

Issue

5.	What is an appropriate sentence for the prisoner given these facts and circumstances?

6.	Should he be sentenced differently because his blow did not lead to the death, it was the other co offender?

General rule in sentencing

7.	“The general rule is that all active participants in the crime shall be sentenced on the same basis. The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated: Gimble v The State [1988-89] PNGLR 271 at 273. 

8.	Given the facts and the circumstances of this case I consider and determine that principle applicable here and I apply it in determining an appropriate sentence against the prisoner.  I adjudge that it sits well with the Constitutional basis section 55 that all are equal in the eyes of the law. And that the protection of the law accorded is without distinction except where there is very clear evidence that demarcates the prisoner from participation or knowledge of  the crime: Nimagi v State [2004] PGSC 31; SC741, where David Bawai and Tom Gurua were given distinct sentences from Joseph Nimagi. He was watching over Mrs Aihi at the time that David and Tom decided to abduct the daughter of the headmaster who retaliated to prevent and was shot by one of them in the process, so the court imposed 50 years against both for their lead and 20 years for Joseph Nimagi. Imposing a blanket sentence of 50 years would have meant that Joseph Nimagi would have been caught in that tidal and his role smothered without proper and proportionate accountability in law. See also State v Yokum [2002] PGNC 24; N2337.

9.	Prisoner here exercised his right to running a trial and in sentence he will be treated different from his co offender Steward Klepas who pleaded guilty to the same murder before this court presided by Justice Batari who sentenced him to 18 years IHL. Plainly he will receive a higher sentence because this is a trial. And he will not be distinguished on the basis that the injury that caused death was inflicted by Steward Klepas, because without the blow that he exerted upon the forehead of the deceased rendering him defenceless Steward Klepas would not have done what he did. He is therefore equal as if he had in fact stabbed the deceased with the knife: Porewa Wani v The State [1979] PNGLR 593. He was not an innocent bystander but an active participant to the crime,  in fact he set the crime in motion. The sentence will reflect his role in the crime.

Allocutus

10.	In allocutus he pleaded that he be given a short term in prison because he had school to attend and is a first offender. He advanced no other material to further that plea, notably of the school he was attending and marks attained there. 
Antecedents
11.	In the antecedent report tendered by the State Prosecutor he was born on the 27th June 1994 and therefore at the time of offence was 21 years old, 23 at time of sentence. He was educated at Kavui Primary School from grade 1 to 7 in 2001 to 2007 and from Lambe, Vitu Island, Talasea. He was resident at Kavui section 9 married with an infant 4 months old at the time of the charge. He had no record of formal employment and was a first time offender. He was a member of the revival church.
Mitigation
12.	Defence counsel urged that the case fell into category 2 in Kovi v The State [2005] PGSC 34; SC789 given the range of 16 to 20 years relevant factors which were present here included, weapon used, pre planning envisaged and element of viciousness involved. It was a trial but he did not cause the fatal injury leading to the death of the deceased. That was caused by Steward Klepas who pleaded guilty and was sentenced to 18 years IHL by this court.

Aggravation
13.	In contrast the state urged that it was group attack on an unarmed elderly man now deceased who was intent on protecting another. There were use of weapons a bottle and knife used to stab deceased and that there was no remorse by prisoner. It was alcohol fuelled leading eventually to the killing and was very prevalent offence. A deterrent sentence was in view upon the prisoner and general public inclusive. Co offender Steward Klepas had pleaded guilty; prisoner was the one who initially assaulted and made it possible for the stabbing to take place. Therefore it was the upper end of category two and the lower end of category three in accordance with Manu Kovi’s case (supra) and the range was 18 to 22 years.

Factors in sentence

14.	The killing took place within the premises of the deceased in the early hours of the morning set out by the evidence of his children and family witnessing his killing in front of them. Prisoner cannot be likened to the scene painted out by Kwapena v The State [1978] PNGLR 316 of self- defence or provocation: Angitai v The State [1983] PNGLR 185. He acted without lawful justification rendering the deceased defenceless to the knife that was lunged into his back causing massive bleeding emanating from the left lung leading to death. He elected to run a trial as opposed to a plea in State v Steward Klepas CR 70 /2016 who pleaded guilty  before this court presided by Justice Batari drawing the sentence there of 18 years IHL. The benefits that are due on a guilty plea in favour of the prisoner are not applicable. 

15.	You are now 23 years old but were 21 years at time of the offence which in my view is the pinnacle of being a youth in life. I am fortified in this view because in law the legal age is, in some cases 18 years old and in others 21 years old. So in your case you were just becoming an adult when you committed this very serious offence. It is the second most serious homicide offence known to law, underlying is sanctity and the sacredness of life itself deriving fundamentals from section 35 of the Constitution. To apportion a proper and proportionate sentence there must be careful consideration of whether or not there are identifiable and apparent basis to stress reformation and rehabilitation of the offender: Acting Public Prosecutor v Mailai [1981] PGSC 7; [1981] PNGLR 258. And these observations are relevant and pertinent where the offender as here has just stepped into the adult world and fallen head on into a very serious offence. But to so exercise there ought and must be material properly before court to invoke its discretion. In your case there is nothing apparent or identifiable to sway the discretion of the court along that way. You are a first-time offender and that is about all to the highest in your favour. You conduct is denounced and the community must be protected.

16.	Because the parallel in your case here is, there must be respect for the habitat of a fellow human being, be it a mansion or shack or shanty, be it located in the heart of the city or in the outskirts or as here in the blocks, whether at night or day, it is the home of another and he should be respected there. The courts have made this point well (Gimble (supra)), stressing strong deterrence to protect the home from criminal acts as here. The rule of law must be strengthened and respected: Manu Kovi’s case (supra). Defiance has led to an unnecessary death yet again denoting the prevalence of this offence.

Extenuating Circumstances
17.	I determine that there are no evidence of any extenuating circumstances (State v Hagei [2005] PGNC 60; N2913) here to deviate from the tariff and range set out in Kovi’s case (supra) and in your case the appropriate scale starting is the higher end of category 2 and the lower end of category three in murder as applicable, given your facts and the circumstances. In particular I consider it aggravating where group fights take place as here. Because this groupings foster and manifest illegal, unlawful and criminal offences which must be drawn with strong and deterrent sentences. What happened here was a culmination of alcohol and abuse of it which led to a fight amongst the group escalating, whereupon one within was chased into the premises of the deceased at 3.00am in the morning. He was unarmed intent on quelling the fight giving his own life in the process in so doing. 

18.	There will be situations where the public will stand up to stop violence and criminality perpetrated as the law and police will not be everywhere one and at the same time as was the “good Samaritan” here. Like Leslie v The State [1998] PGSC 22 SC 560 those who stand up for law and order and righteousness like our police in our communities must be protected by strong punitive sentences against those who offend as here. Your sentence will reflect that fact. On the other hand the sentence must not be crushing but must be drawn out by the peculiar facts and circumstances in line with sentencing trends and tariff. To go otherwise will be falling into error.  And so appropriately the sentence proportionate here is 22 years IHL and I so impose upon the prisoner. I order any time in custody to be deducted from that head sentence and the balance to be served forthwith.

19.	The sentence of the court is 22 years IHL less time spent in pre-trial custody and the balance is to be served forthwith.

Orders accordingly.

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