N8237

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1000 of 2018

THE STATE

V

SMACKER SAMUEL

Lae:  Kaumi. J
2019: 4th &18th July, 22nd October, 1st November, 16th December

CRIMINAL LAW – Criminal Code Act 1974, Part V-Offences Against the Person and Relating to Marriage and Parental Rights and Duties, and Against the Reputation of Individuals-Division 3-Homicide: Suicide: Concealment of Death-Section 300 subsection (1) (a) Murder- Plea of Guilt-Offender used a knife to stab the deceased multiple times after he caught him putting his hand into his sister’s bag- victim died from loss of blood from the multiple wounds-Mitigating and Aggravating Factors –First Offender Non-Genuine Expression of Remorse–Prevalent Offence.

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

Cases Cited:

Golu v The State [1979] PNGLR 653
Gimble v The State [1988-89] PNGLR 271
Pauline Painuk v The State SCRA 54 0f 2000 (unnumbered and unreported dated 22nd November 2000)
Java v The State [2002] PGSC 17; SC701 
Manu Kovi v. The State (2003) SCRA NO. 51 of 2003
Joseph Enn v The State [2004] SC738
Saperus Yalibakut v The State SCRA No. 52 of 2005, 27/04/2006
Mangi v The State [2006] PGSC 30; SC880 (30 June 2006)
The State v. Lawrence Mattau N3865 (2008)
Thress Kumbamong (2008) SC1017
The State v Laiam [2010] N3995
State v. Paguari [2011] PGNC 159; N4438 
State v. Uapipii [2016] PGNC 84; N6262 

Counsel

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

SENTENCE 
16th December, 2019

1.	KAUMI AJ: This is a decision on sentence for a man who on the 4th July 2019 was found guilty of 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 is in this case.

AGREED BRIEF FACTS

3.	Around 11pm on 14 April 2018, the deceased, Michael Vitus, put his hand into the bag of one Muyan John, a sister of the offender, Simacker Samuel, and this made the offender angry. The offender asked the deceased why he put his hand into the billum of Muyan John. This developed into an argument between the two men and they fought. During the fight, the deceased assaulted the offender and so he took out a knife, chased the deceased and stabbed him on the chest and abdomen. On seeing that the offender had stabbed the deceased, a person by the name of Peito Douglas punched the offender and he dropped the knife and ran away.

4.	The deceased bled profusely and was taken to the Angau Memorial General Hospital that night where he was pronounced dead on arrival. The injuries that the deceased sustained were:

i. A hyper extended neck;
ii. Right arm laceration measuring 5cm x 2cm;
iii. Left arm laceration measuring 4cm x 2cm;
iv. A laceration on the left hand measuring 3cm x 1cm;
v. Two laceration on the right chest wall measuring 3cm x 1cm and 4cm x 2cm;
vi. Right arm inner lateral laceration measuring 3cm x 2cm;
vii. 100mls of blood in the chest cavity;
viii. Laceration on the small and large intestine;
ix. About 50mls of blood in the abdominal cavity.

ANTECEDENT

5.	The Antecedent Report provided to the Court by the State states that he has no prior convictions.

ALLOCATUS

6.	When I administered allocatus to the offender the following is a paraphrased summary of his response:

“I want to say sorry to God.  I want to say sorry for breaching the Constitution of Papua New Guinea. I want to say sorry to the people in Court now. I want to say sorry to the complainant and family and I ask for a good behavior bond.”  

OTHER MATTERS OF FACT

7.	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 and in submission  that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890. 

SUBMISSION BY DEFENCE COUNSEL

8.	Mr. Boku for the offender submitted that the case fell under the second category of State v. Paguari [2011] PGNC 159; N4438 (7 October 2011). Secondly, he submitted that the court should consider the mitigating factor that compensation had been paid by the offender to the deceased family of K10, 000.00 and one live pig despite his own 4 bedroom family house, trade store, television and generator being burnt to ashes. 

9.	He submitted thirdly that the court could use its unfettered discretion as per Thress Kumbamong (2008) SC1017 to impose an appropriate sentence in this matter under the circumstances highlighted above and considering the mitigating and aggravating factors. He also asked the court to consider equivalent sentences imposed in the cases of State v. Uapipi [2016] PGNC 84; N6262 (25 April 2016) and The State v. Lawrence Mattau N3865 (2008).

10.	He submitted that the views of the victim’s family and community had been sought and there was a willingness to supervise him if sentence was suspended as per the Pre-Sentence Report. He submitted for a starting point of 5 years and that it be wholly suspended.

SUBMISSION BY THE STATE

11.	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 (2003) SCRANO. 51 of 2003.

12.	She further submitted that the offender was a first time offender however in aggravation is the fact that a life has been lost and cannot be replaced. Furthermore that the offender used a knife to kill the deceased who was unarmed and posed no threat to him. The offence of murder was prevalent and the punishment must suit the crime and further serve as a deterrent to other would be offenders. 

13.	She submitted the present case fell within the third category of the Manu Kovi case and considering the loss of a human life, the use of a dangerous weapon, the prevalence of such offences and a need for both specific and general deterrence, a sentence between 20 to 30 years was appropriate.

WHAT IS THE MAXIMUM PENALTY?

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.’

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

WHAT IS THE STARTING POINT?
15.	The sentence range for the offence of murder considering the cases I have referred to below have ranged from 15 to 20 years. The starting point is 20 years.

WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

16.	I will now consider the sentencing trends.

(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, Here 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 pleas of murder where the appellant had stabbed the deceased, a young school girl twice.

17.	The above cases demonstrate the sentence range for the offence of murder upon a guilty plea from 15 to 20 years and that the Supreme and National Courts view homicide offences very seriously.

WHAT IS THE HEAD SENTENCE?

18.	In order to arrive at a head sentence I have to consider the particular circumstances in which the offender has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.

19.	I have taken into consideration the guilty plea of the offender, his lack of prior convictions, provocation in the non- legal sense, compensation of K10, 000.00 with a pig paid to deceased relatives, family properties that included a family home and a trade store were burnt to ashes with television sets and generators were ransacked in retaliation, expressed genuine remorse, community leaders mediated peace and the compensation ceremony, he is a very good citizen of the community and there was no preplanning.

20.	Against him I have considered the aggravating factors which are as follow, strong desire to harm, offensive weapons used, multiple wounds and prevalence of the crime. I consider the multiple wounds (nine wounds to vulnerable parts of the body) sustained by the deceased to be a strong aggravating factor.

21.	The circumstances of the matter dictate that the head sentence is 18 years.

SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

22.	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.

23.	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.

24.	In the exercise of my judicial discretion I have decided to deduct the period the offender spent in custody in remand awaiting trial which is1 year 8 months.

SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

25.	The circumstances of this matter are very serious in particular I refer to the multiple injuries sustained by the deceased and so I do not consider that any suspension of the head sentence, as to do otherwise would not be doing justice to the matter.

26.	The Court’s appreciation of the payment of compensation by the offender and all the other mitigating factors is reflected in the head sentence which is below the starting point.

SENTENCE

27.	The orders of the Court are as follows:

a. The offender Smacker Samuel is sentenced to 18 years imprisonment.
b. 1 year 8 months is deducted.
c. The offender Smacker Samuel will serve 16 years 4 months.
d. Orders to this effect shall issue forthwith.
\

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