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State v Petrus (No. 2) [2020] PGNC 206; N8423 (22 July 2020)

N8423

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1172 OF 2019

THE STATE

V

COLLEN PETRUS
(NO. 2)
Prisoner

Madang: Geita J
2020: 15^th, 22^nd July

CRIMINAL LAW – Sentence – Victim harmless and posed no real danger to the accused and his family – Victim assaulted within the home of the accused, resulting in his death a day later – Section 300 (1) (a) Criminal Code.

CRIMINAL LAW – Sentence - Murder – Section 300 (1) (a) Criminal Code –Head sentence of 15 years imposed less pre-trial custody period – K5000 awarded to the deceased’s family under the Criminal Law (Compensation) Act 1991.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Manu Kovi v The State [2005] N 789
The State v Kumbakor [2014] N5830

Counsel:

Deborah Ambuk, for the State
Delailah Ephraim, for the Prisoner

JUDGMENT ON SENTENCE

22^nd July 2020

1. GEITA J: The prisoner was found guilty after trial on one count of murder contrary to s. 300 (1) (a) of the Criminal Code Act. This offence attracts a maximum penalty of life imprisonment, however Section 19 (1) (a) (b) of the Criminal Code Act gives courts powers to impose a lesser sentence.

Brief facts

2. For purposes of completeness I have detailed the facts as found during trial and conviction on 22 June 2020. The facts reveal that on Friday 31 May 2019 the deceased was sent by his mother to take some food over to his sick grandmother at the nearby village of Amele. On his return journey home, he took shelter at the accused family home the next day as it was to dangerous to walk home by night. During the early hours of the morning he was assaulted by the accused. The deceased was accompanied back to his family on Saturday 1 June 2019 by the accused father. By than the deceased was distressed and looked very sick. On Saturday 2 June 2019 he complained of stomach pains and was rushed to hospital but succumbed to his death as a result of the assaults caused by the prisoner. He received external and internal injuries to his face, abdomen and intestines.

Antecedents

3. No prior convictions were recorded against the prisoner.

Allocutus

4. Upon administering the allocutus pursuant to section 593 of the Criminal Code, the prisoner expressed remorse to the deceased. He apologised to the Court and the Lawyers. He admitted that what he did was wrong in law and he was sorry.

Aggravating factors

5. The circumstances of aggravation in relation to this offence are as follows:

1. Loss of life;
2. Unprovoked assault;
3. No reconciliation;
   

Mitigating factors

6. 1. No prior convictions

2. First time offender

3. No weapons were used

4. He co-operated with police

Submissions on sentence – The prisoner

7. Ms. Delailah Ephraim for the prisoner submitted that a prison sentence of 13 years would be appropriate in light of the prisoner’s mitigating circumstances. In her oral submissions she referred me to the case of Manu Kovi v The State (2005) SC789 and advanced that this case falls within category 1 sentencing tariffs. She conceded that there were no extenuating circumstances to warrant a consideration for a suspended sentence. She submitted that this was not the worst type of murder and invited Court not to impose the maximum sentence. Furthermore, she invited this Court to consider alternative penalties under s.19 provisions of the Criminal Code. Ms Ephraim referred the court to the case of The State v Kumbakor (2014) N5830. That was a guilty plea matter in which the prisoner was sentenced to 13 years by me. The 12 months and 1 day spent in pre-trial custody be deducted from his overall sentence, she submitted.

Submissions on sentence– The State

8. Ms Deborah Ambuk for the State submitted that the upper range of category 1 sentencing tariff in Manu Kovi case (supra) of 14 years should be considered in light of the aggravating factors. She argued that parts of the sentence should not be suspended in the absence of any exceptional circumstances. The prisoner’s mitigating circumstances include: no prior convictions, no weapons used, no pre planning and the absence of intention. As regards his aggravating circumstances she submitted: Alcohol was present, crime was committed during the night, the deceased was unarmed, the deceased went to seek shelter. Ms. Ambuk correctly pointed out that this case must be considered on its on facts and also that the maximum sentence best reserved for worst type of crimes. She submitted that the prisoner’s family were willing to pay some form of compensation up to K3000 as recorded in the pre-sentence report. The deceased parents on the other hand are demanding K20,000.00 as costs relating to the mounting of the “haus krai”.

Application to this case

9. Both Counsel have correctly referred the Court to the applicable sentences available under the sentencing tariffs in the case of Manu Kovi (supra). I will be guided by those tariffs. I also remind myself that the maximum punishments are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653). Although this act of killing was uncalled for and cowardly, I do not consider it to be of the worst category and will not apply that sanction.

10. Instead a longer exemplary deterrence sentence in my view would be appropriate under the circumstances. I have had the benefit of submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner. I take note that you are a young married man with many more years ahead of you. I also take note of concerns and expectations from both families. Your mitigating factors and aggravating factors, in my view are evened out, save for the presence of alcohol. Had you exercised some care and compassion for a young man your age, who had come into your hamlet seeking shelter for the night. No, you assaulted him instead because you were intoxicated at the time. He was not a threat to you and your family, and he was harmless. Under the circumstances a head sentence of 15 years is deemed appropriate minus any pre trail custody period available to you. The case of Aaron Kumbakor (supra) is slightly distinguished in that he entered an early guilty plea, whereas in your case you were found guilty after trail. As regards the deceased family’s call for some form of compensation to the tune of K20,000.00, Courts are not receptive to such calls. However token compensation is awarded under the Criminal Law (Compensation) Act 1991. In the exercise of my powers under that law, I make an award of K5000 to be paid to the deceased’s parents.

Sentence

11. You are sentenced to a head sentence of 15 years less your pre trail custody period of 12 months and 1 day. A further 12 months will be deducted upon you paying K5000 to the deceased’s parents within 6 months from today.
Ordered accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner