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State v Tom [2020] PGNC 171; N8392 (11 March 2020)

N8392

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 478 OF 2019

THE STATE

-v-

RUSSEL TOM

Waigani: Koeget, J
2020: 03^rd, 11^th March

CRIMINAL LAW - Indictable offence – Wilful Murder pursuant to section 299(1) of the Criminal Code Act chapter 262 – convicted on guilty plea – Exercise of Court’s discretionary powers under section 19 of the Code a sentence of life years imposed in view of the circumstances under which the offender committed the crime.

FACT

On 24^th June 2018, the accused and some of the family members were drinking alcohol and watching the State of Origin rugby game on a television in a neighbour’s house at Hohola in the National Capital District. At about ten o’clock at night the accused returned home and demanded cash from his cousin brother Aron.

The cousin brother told him he had no cash but the accused demanded it and threaten to damage the house if no money was given to him. So out of fear for the damage to the house, Aron asked his wife to give K50.00 to the accused. She had only K100.00 note that she gave to Aron so Aron gave the K100.00 in turn to the accused with instruction to use K50.00 and return to him the balance of K50.00. The accused accepted the cash and left Aron and wife.

Aron waited for the accused to return with the K50.00 but he did not so he slept. On the morning of 25^th June 2018, Aron went to search for the accused and found him at the snooker table in the neighbour’s house few meters away. Aron found the accused and asked for the change of K50.00 and the accused took the 20-ounce (03) warrior bottle to hit Aron but the deceased disarmed him. The accused struggled and held Aron by the neck and this angered the deceased so he punched the accused once in the face resulting in the accused losing grip of Aron’s neck. The deceased and Aron left and returned to their house and later accompanied their family to Koki fish market to sell their mud crabs.

The accused went to a shop at Hohola and purchased a brand new Tramontina bush knife and returned to the house in search of the deceased. When he did not find the deceased at the house, he became angry and swung the bush knife at Luke Gegai when he sighted him at the house. Luke Gegai evaded the bush knife and fled the house to the nearest bus stop at Hohola.

The accused armed with the bush knife went to Koki by PMV bus in search of the deceased. When the accused sighted the deceased sleeping under the market tables at Koki fish market, he proceeded to attack him with the bush knife. The accused persistently attacked the deceased with the bush knife and inflicted severe wounds to the upper part of the body resulting in heavy loss of blood. A bystander at the market apprehended the accused and disarmed him. The accused surrendered to the police at Koki police detachment. He is charged with the wilful murder of the deceased Jack Morobai. The State allege that when the accused struck the deceased on the upper body with the bush knife several times causing severe injuries, he intended to cause the death of the deceased Jack Morobai. He had no reasons to kill the deceased.

Case Cited:

Manu Kovi –v- The State (2005) SC 789.

Counsel:

R. Galama, for the State
Ms G. Gunson & Ms A. Peter, for the Accused

11^th March, 2020

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Wilful Murder pursuant to Section 299(1) of the Criminal Code Act chapter 262.

2. The accused pleaded guilty to the charge and was convicted accordingly. There are admissions in the record of interview between himself and the police investigators so the plea was confirmed.

ISSUE

3. The issue for the court to determine is what is the appropriate sentence the court should impose upon the prisoner.

LAW

Section 299 – Wilful Murder.

(1) subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or death of some other person, is guilty of wilful murder.

(2) a person who commits wilful murder shall be liable to be sentenced to death.

PERSONAL PARTICULARS

4. The prisoner is 25 years old and is a bachelor. He is from Bari village, Kikori district of the Gulf Province. He has very limited formal education and was a villager when he committed the offence.

AGGRAVATING FACTORS

5. The offence committed is alcohol related. The commission of the offence was planned and well executed by the prisoner.

6. This was a savage attack on an unarmed person. The prisoner bought the bush knife in the shop that morning and set off in search of the deceased with the weapon. The prisoner attacked the deceased and inflicted severe multiple injuries to the upper part of the deceased with the weapon. Such offence is prevalent in the country and so a deterrent sentence is called for to send a clear message to the “would-be” offenders that such actions are not condoned by the court in this jurisdiction.

MITIGATING FACTORS

7. The prisoner is a first-time offender. He voluntarily surrendered to the police and admitted commission of the offence to them.

8. He pleaded guilty to the charge and saved valuable time of the Court. Although in the first instance the deceased was the aggressor and punched the prisoner in the face, the force he used when he attacked the deceased was excessive. He has been in custody awaiting disposal of the case for one year and seven months.

SENTENCE

9. The offence the prisoner committed is alcohol related. The prisoner had been drinking alcohol the whole night till the following morning when he committed the offence.

10. The prisoner attacked Aron, who gave him cash at night to purchase alcohol which he drank till the next morning. The deceased intervened by punching the prisoner in the face and he “let go” the grip on Aron’s neck. Although the deceased was the aggressor in the first instant, the force offended by the prisoner was disproportionate and a weapon was used in the commission of the offence. The prisoner thought and carefully planned the attack on the deceased and executed it well. For instance, he obtained money from his elder sister that he used to purchase a tramontina bush knife in a shop at Hohola. He returned to the house armed with that bush knife to search for the deceased.

11. When the prisoner did not find the deceased in the house, he attacked Luke Gegai, an innocent person with the bush knife. Fortunately, Luke Gegai evaded the bush knife and fled to the nearest bus stop at Hohola.

12. The prisoner proceeded to search for the deceased and went to Koki fish market and found the deceased sleeping under the tables. He attacked the deceased sleeping with the bush knife and inflicted severe injuries on the upper part of his body. He was disarmed by a bystander and he surrendered to the police at Koki Market police detachment for his own safety as he feared revenge on his life by relatives of the deceased.

13. The prisoner’s conduct described is savage, violent and primitive. He has no respect for human life at all. He demanded anything to be provided to him by threatening people and so is regarded as a threat to the community he lives in at Hohola and in the village. So he is fit to be in a secluded, confined place where he offers no threat to peace loving people.

14. The maximum sentence for such offence is a Death Penalty. I have faith in my religious teachings that life is given to all human beings by the “Creator” and he alone has the power and authority to take away that life according to his plan.

15. So in this case I refrain from imposing a Death Sentence on the prisoner. However, the next serious sentence as prescribed by the Criminal Code Act ought to be imposed upon the prisoner.

16. So the prisoner is sentenced to be imprisoned for life. The sentence is to be served at Bomana goal.

Accordingly Ordered.
________________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused