N8234

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 443 of 2011

THE STATE

v

BADE BOB

Lae:  Kaumi. J
2019: 22nd October & 16th December

CRIMINAL LAW – Sentence-Criminal Code Act 1974- Section 300 subsection (1) (a) Murder -Sorcery related killing-Two young men slashed suspected sorcerer to death during mediation-Wounds to stomach and shoulder-Offender and accomplice prevented others from assisting deceased until he bled to death.

CRIMINAL LAW- Sentence- Belief in Sorcery only a belief not a fact- Belief in sorcery not raised-Belief in sorcery will not be considered as a mitigating factor.

CRIMINAL LAW- Should All or Part of the Sentence be suspended –Imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report-Recommendation of Pre-Sentence Report Against Evidence Collated in it-Recommendation not endorsed.

The offender pleaded guilty to one count of murder of a man. The matter was for sentence.

HELD:

[1] There must be substantiating evidence supporting a recommendation for probation in a Pre-Sentence Report. The Acting Public Prosecutor v Don Hale (27/08/98) SC 564, The State v Irox Winston (N2347) [2003] Kandakasi. J (as he then was) and The Independent State of Papua New Guinea v Benson [2006] PGNC 68 Cannings. J

[2] I find the assessment of the offender by the writer of the PSR totally against the grain of the report, without any substance whatsoever and based on his own assumptions. 

[3] The Court does not base judicial pronouncements on mere assumptions, conjectures or insinuations but on a substantiated basis.  And if a Court is predisposed to making such a decision then there are established rules to follow.

Legislation Cited: 

Constitution of Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Cases Cited:

Java v. The State [2002] PGSC 17; SC701 
Joseph Enn v. The State [2004] SC738
Kovi v. The State [2005] SC789
Mangi v. The State [2006] PGSC 30; SC880 
Pauline Painuk v The State SCRA 54 0f 2000 (unnumbered and unreported dated 22nd November 2000)
Saperus Yalibakut v. The State SCRA No. 52 of 2005, 27/04/2006
State v. Lesly Pedro and Andry Morgan (Unreported judgement) CR421&422 of 2017
State v. Paguari (2008) SC 1017
The Acting Public Prosecutor v Don Hale (27/08/98) SC 564
The State v. Irox Winston [2003] N2347 Kandakasi. J (as he then was)
The State v. Raka Benson[2006] PGNC 68 CR 447, 445
Thress Kumbamong v. The State [2008] SC 1017 (Salika DCJ, Kandakasi and Yagi JJ)
The State v. Laiam [2010] N3995
Tom Longman Yaul v. The State (2005) SC 803

Counsel:

Ms. Comfort Langtry, for the State
Mr. Colman Balus Boku,for the offender

SENTENCE 
16th December, 2019

1.	KAUMI J: This is a decision on sentence for a man who pleaded guilty to one count of murder contrary to Section 300 (1) (a) of the Criminal Code Act Chapter 262.

ISSUE

2.	The relevant issue is what the appropriate sentence in the case should be.

FACTS

3.	On the 29th of December 2010, the deceased Kipubingtong Nale attended a mediation in which he was accused of sorcery. Whilst Nale was answering question put to him, the offender and an accomplice who were armed with sharp objects, rushed at him. The offender stabbed Nale with a 30cm long knife on the right side of his stomach. The accomplice of the offender called Sali Bill also stabbed Nale on the left side of his shoulder causing him to collapse and die instantly as a result of the stab wounds. The offender intended to cause grievous bodily harm to Nale and stabbed him and he died as a result.

ANTECEDENT

4.	The offender’s Antecedent Reports provided to the Court by the State states that they have no prior convictions.

ALLOCATUS

5.	When I administered allocatus to the offender he apologized to the family of the victim as well as his family. He further apologized for taking up the Court’s time and said he was a first time offender and asked for the Court’s mercy and that he be placed on a good behaviour bond.

OTHER MATTERS OF FACT

6.	The offender pleaded guilty and so I will give him the benefit of the doubt on mitigating  matters raised in the committal depositions, the allocatus in submission  that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890. 

SUBMISSION BY DEFENCE COUNSEL

7.	Mr. Boku for the offender submitted that this case fell under the category “a” of the sentencing guidelines for murder as set out in State v. Paguari (2008) SC 1017, thus the appropriate sentence range was 12 to 16 years which should be reduced because of the offender’s early guilty plea, no firearms used and the offence was not committed while attempting or committing another offence, compensation of K5, 300.00 and 2 pigs were paid demonstrating genuine remorse and accepting criminal responsibility. 

8.	He further submitted that there was another offender including the offender who caused the death of the deceased and a 7 years sentence was an appropriate as approved in the case of State v. Lesly Pedro and Andry Morgan (Unreported judgement) CR421&422 of 2017. He submitted that though the CBC office did not make any recommendation for probation and left the sentence to the court’s discretion, the court still had wider judicial discretion in sentencing as enunciated in Thress Kumbamong v. State (2008) SC 1017.

SUBMISSION BY THE STATE

9.	Ms. Langtry for the State submitted that in determining the appropriate sentence the court may be guided by the principles outlined in Manu Kovi v. The State (2005) SC789. That this case fell in the third category of Kovi’s case. 

10.	She submitted that in the instant case the nature and circumstances in which the offence was committed were very serious and that the aggravating factors outweighed those in his favour; i.e. strong desire to do harm, offensive weapons used and prevalence of the crime and submitted for a sentence between 20 to 30 years in hard labour

WHAT IS THE MAXIMUM PENALTY?

11.	The prisoners have pleaded guilty to one count of murder under Section      300(1)(a) of the Criminal Code, which states:

	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 grievous bodily harm to the person killed or to some other person;

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

12.	Section 19 of the Criminal Code Act allows for the discretion of the Court in sentencing the prisoner.

WHAT IS A PROPER STARTING POINT?

13.	The Supreme Court in the case of Manu Kovi v The State (supra) sets out the sentencing tariffs for Homicide cases.  

14.	The Supreme Court in the  case of Thress Kumbamong v The State (2008) SC1017 (Salika DCJ, Kandakasi and Yagi JJ) said that despite the tariffs set in Manu Kovi (supra) the sentencing discretion of the court remains very much unfettered.  

15.	This case falls under category three of the Manu Kovi (supra) categorization as it is characterized by elements of pre-meditation, viciousness in attack, a strong desire to do grievous bodily harm to the deceased and the use of dangerous weapons, bush knives so the proper starting point in this case is 20 years.

WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

16.	I will now consider the sentencing trends in recent history.

17.	The following are National and Supreme Court sentences for Murder, 2000-2010:
(a) Java v The State [2002] PGSC 17; SC701 (20 Dec 2002) the appellant pleaded guilty and was sentenced to 20 years IHL for the murder of the deceased by stabbing him several times for destroying his food garden. The review was dismissed and the sentence of 20 years was confirmed.

(b) Mangi v The State [2006] PGSC 30; SC880 (30 June 2006), the Supreme Court when considering the appeal by the prisoner against a sentence of 35 years imposed by the National Court commented on the Manu Kovi case that, in this instance the Court reduced 35 years to 16 years IHL viewing that a knife was used but there was no pre-planning two drunken man fighting leading to the death.
(c) Joseph Enn v The State [2004] SC738: The appellant appealed against her sentence of 20 years. An argument erupted at a mediation meeting between the deceased and two others. The appellant armed with a long bush knife walked up behind the deceased and struck the deceased with the bush knife on the left side of the neck. The impact of the knife blow was such that, the head was totally severed from the body. The Supreme Court affirmed the sentence of 20 years.

(d) The State v Laiam [2010] N3995: The prisoner stabbed the deceased to death on the chest once with a knife. He pleaded guilty to the charge and was sentenced to 15 years.

(e) Pauline Painuk v The State SCRA 54 0f 2000 (unnumbered and unreported dated 22nd November 2000): There the Supreme Court confirmed a sentence of 18 years to a plea of murder where the appellant had stabbed the deceased, a young school girl twice.

18.	The above cases demonstrate the sentence range for the offence of murder on a guilty plea to range from 15 to 20 years.

WHAT IS THE HEAD SENTENCE?

19.	The aggravating and mitigating factors that assist the court in arriving at what the head sentence should be are derived from a consideration of the particular circumstances in which an offender has committed an offence and which he has pleaded guilty to.  

20.	A mediation that was convened was to question the deceased over allegations of sorcery so in addition to my consideration of other mitigating factors I must consider the prisoner’s belief in sorcery and I highlight this consideration in the form of two questions:

a)	Has the prisoner’s belief in sorcery been established; if the answer is in the negative then that belief in sorcery will not be considered as a mitigating factor; if the answer is in the affirmative then I will address next consideration.

b)	Do the facts of the case indicate that there should be an increase or a decrease in the degree of mitigation?

21.	The prisoner through his counsel submitted nothing on his belief in sorcery so I answer the first question in the negative the result being belief in sorcery will not be considered as a mitigating factor. Having answered the first question in this manner it is not necessary to consider the second question.

22.	The aggravating factors are as follows: the offence is a prevalent offence; the offence was serious; there was some planning; the offender and an accomplice used a dangerous weapons to cut the deceased; vicious attack on an unsuspecting unarmed man; the victim sustained serious injuries; they prevented others from assisting the deceased until he bled to death; they did not assist the deceased to receive medical attention and the offender was educated and to that extent he is a sophisticated person who should have known better than to commit a crime.

23.	The deceased died as a result of the offender stabbing him with a 30 cm long knife on the right side of his stomach and his accomplice stabbing him on the shoulder.

24.	The factors in his mitigation are that he pleaded guilty, is a first time offender, a compensation of K5, 300.00 and two live pigs were paid to the family of the deceased. Although the offender absconded bail, for the five years he was at large he did not reoffend, he started a small canteen to keep himself occupied so as not to get involved in unlawful activities and planted cocoa and coffee and was involved also in buying and selling dried cocoa and coffee beans, the proceeds of which he used to help his family pay compensation which was demanded by the family of the deceased. He helped his community leaders, went back to school and was schooling at the time of his re-arrest.

25.	I note that he was 16 years old when he offended on 29 December 2010.

26.	I note in this matter that though the aggravating factors outweigh the mitigating ones however a strong mitigating factor is what he did while he was at large.

27.	The prevalence of this type of offence increases at an unabated rate in this country today despite the best of efforts to deter or minimize it.

28.	The case before me does not fall into the worst category of cases but in my opinion finds itself at the lower range of the Manu Kovi (supra) category 3 of cases.

29.	The instant case before the court is a guilty plea to Murder and when I consider the peculiar circumstances of the offence I consider a head sentence is 14 years appropriate. Thress Kumbamong v The State (supra)

SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

30.	Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:
	
There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

31.	This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.

32.	The offenders spent one year in custody and it is proper that this period is deducted.

SHOULD THE SENTENCE BE SUSPENDED WHOLLY OR PARTIALLY?

33.	I note that the writer of the Pre-Sentence Report has interviewed a number of people including the accused, the accused’s elder brother and two community leaders from the offender’s community. I further note a letter from a community leader from the offender’s community, Mr. Elisah Kiputung who speaks highly of him and what he was doing while he was at large and a letter signed by the Head teacher, the offender’s class teacher and a Board of Management member of the Komiatum Primary School which spoke highly of him and the good grades he achieved in 2018. It further stated that such was his good character and behaviour that he received the ‘Good Citizen and Leadership Award for 2018. Yet against all of these good and favourable factors the writer states that the offender is a risk to his community and recommends that the offender is not a suitable candidate for probation and the Court should consider a determinate period of time of imprisonment. The writer is holding the offender accountable to what he did as a young boy nine years ago and whilst there is nothing wrong with that for purposes of the PSR he must by way of appropriate evidence establish why he asserts this and why today he is not a suitable candidate for probation and I find that in that respect he has failed miserably. 

34.	Both the Supreme Court and National Courts have stated that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report. The Acting Public Prosecutor v Don Hale (27/08/98) SC 564, The State v Irox Winston (N2347) [2003] Kandakasi. J (as he then was) and The Independent State of Papua New Guinea v Benson [2006] PGNC 68 Cannings. J

35.	Conversely, if a Community Based Corrections (Probation) officer is so minded not to recommend an offender as a candidate for a non-custodial term then it follows that he/she must show by way of appropriate evidence why he is of that view. Without such evidence before the court it does not necessarily have to act upon such a view.

36.	I find the assessment of the offender by the writer of the PSR totally against the gain of the report, without any substance whatsoever and based on his own assumptions. The Court does not base judicial pronouncements on mere assumptions, conjectures or insinuations but on a substantiated basis.  And if a Court is predisposed to making such a decision then there are established rules to follow. In the instant matter I find all the pre-requisites for the suitability of the offender for a Probation Supervised Suspended term substantiated. 

37.	I suspend four years of the head sentence conditionally as follows:
(a) 	Upon release the offender will keep the peace and be of good behaviour for the period of the suspended his suspended sentence (4 years);
(b) 	The offender shall reside at his residence at, Yemle village,Ward 13, Salamaua Local Level Government, Lae, Morobe Province;
(c) 	The offender shall not leave Morobe Province without the written approval of the National Court;
(d) 	The offender shall not associate himself with criminals;
(e) 	The offender shall attend his local church for service on every day of worship;
(f) 	The offender shall perform 500 hours of unpaid community work in his community, under the supervision of Mr. Elisah Kiputung  (Yemle village community leader).
(g) 	If the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence. (see Tom Longman Yaul v The State (2005) SC 803)

SENTENCE

38.	The orders of the Court are as follows:

Length of Sentence imposed	14 years	
Pre-sentence period to be deducted	1 year 	
Resultant length of sentence to be served 	13 years	
Amount of sentence to be suspended	4 years 	
Time to be served in custody	9 years to be served at Buimo Correctional Institute.	
Bail	NA	

Sentence accordingly.
____________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender