N8610

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.832 OF 2020

BETWEEN:
THE STATE

AND:
DELLASALLE KIARO
Prisoner

Madang: Narokobi J
2020: 12th and 30th October

CRIMINAL LAW – Sentence – Murder - Section 300 (1) (a) Criminal Code -Guilty plea- The victim died from two stab wounds to his right arm and left chest from a confrontation with the prisoner – Stabbing occurred in a village setting – Prisoner and victim are known to each other – Use of offensive weapon – De facto provocation present- first time offender 
The prisoner pleaded guilty to one count of murder contrary to s 300(1)(a) of the Criminal Code. The victim died from two stab wounds - one to his right arm and another to his left chest from a confrontation with the prisoner. There was an element of de facto provocation. The prisoner is a first-time offender, pleaded guilty and has had his family home burnt in retaliation and submits for a sentence of 10 years. The state has however submitted that a sentence ranging from 17 to 30 years would be appropriate considering the sentencing range imposed by the Supreme Court.
Held:
(1) When deciding on the appropriate sentence the court is required to take into account a number of objectives of sentencing, which include:
•	Punish the offender – this can include going to prison, doing unpaid work in the community, obeying a curfew or paying a fine.
•	Reduce crime – by preventing the offender from committing more crime and putting others off from committing similar offences.
•	Reform and rehabilitate offenders – changing an offender’s behaviour to prevent future crime for example by requiring an offender to have treatment for drug addiction or alcohol abuse.
•	Protect the public – from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison, restricting their activities or supervision by probation.
•	Make the offender give something back – for example, by the payment of compensation or through restorative justice. Restorative justice gives victims the chance to tell offenders about the impact of their crime and get an apology. (Statement from the United Kingdom Council on Sentencing considered appropriate and applied (https://www.sentencingcouncil.org.uk))
(2) The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Although society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient.
(3) The court can impose a sentence depending on the circumstances of this case by invoking its discretion under s 19 of the Criminal Code (Kumbamong v The State (2008) SC1017 followed).
(4) In this particular case for murder on a guilty plea of a youthful offender, killing was not planned, there was an element of de facto provocation, offender was a first time offender, expressed remorse and his family suffered reprisal through loss of family home to be weighed out against commission of the offence by entry into the yard where the victim was having dinner, use of offensive weapon directed at the chest, the prisoner committed the offence in the company of others, prevalence of the offence in the area and family of the deceased did not accept compensation, warrants a higher sentence than that sought by the prisoner but less than that submitted by the State.
(3) A sentence of 13 years in hard labour less period spent in custody is considered appropriate in the circumstances.
Cases Cited:
Papua New Guinea Cases

The following cases are cited in the judgment:

Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510
Goli Golu v The State [1979] PNGLR 653
Kumbamong v State (2008) SC1017
Manu Kovi v The State (2005) SC 789
Nita v State (2020) SC1983
Simon Kama v The State (2004) SC740
State v Damun (2011) N4295
State v Dani [2020] PGNC] 254; N8469 (19 August 2020)
State v Harry Heni & 2 Ors, Cr Nos 487, 278 & 279 of 2009 (unreported judgement)
State v Laiam [2010] PGNC 61; N3995 (22 April 2010)
State v Muturu [2012] PGNC 322; N5163 (28 November 2012)
State v Ngaufu (2011) N4554
State v Namaliu (2020) N8506
State v Paugari (2011) N4438
State v Taria (2014) N5928
State v Young (2008) N3548
State v Wakore (2007) N3222

Overseas Cases Cited:

R v Engert (1995) 84 A Crim R 67
Veen v The Queen (No 2) (1988) 164 CLR 465
References Considered:
United Kingdom Sentencing Council <https://www.sentencingcouncil.org.uk>

Counsel:

Mr. S. Francis, for the State
Mr. J. Zauyai, for the Prisoner
JUDGEMENT ON SENTENCE 
30th October, 2020
1.	NAROKOBI J: A.  INTRODUCTION: Dellasalle Kiaro (“the prisoner”) was charged with one count of murder contrary to s 300(1)(1)(a) of the Criminal Code Act Ch 262 in that on 31 December 2019, at Mambuan, in Madang, Madang Province, he murdered one Clifford Salusalu.

2.	Under the Criminal Code, subject to Section 19, the maximum penalty for murder is life imprisonment.

3.	The prisoner pleaded guilty to the charge and I confirmed the provisional plea and entered a conviction of guilty after confirming with his lawyer that the plea was consistent with his instructions.  I also satisfied myself that it was safe to accept the plea after going through the court depositions. I now proceed to consider the appropriate sentence for the prisoner, Dellasalle Kiaro.

B	OUTLINE OF JUDGEMENT  
4.	I address the following areas to help me reach my decision on the issue before me, that is the appropriate sentence for the prisoner:

•	Background; 
•	Objective of Sentencing;
•	Sentencing Guidelines;
•	Sentencing Discretion;
•	Sentencing Trend on Murder;
•	Mitigating Factors;
•	Aggravating Factors;
•	Allocatus and Pre-sentence Report; 
•	Submissions; 
•	Weighing the Considerations; and
•	Orders. 

C	BACKGROUND 

5.	The prisoner is 23-year-old male from Ambuk Hamlet, Manbuan, in the Bogia District of Madang Province. He completed a course in business studies in 2019 at the Ramu Technical Vocational Centre at Usino Bundi District in Madang. He is the second child in a family of five (5) from a single mother. The prisoner is unemployed, and he is in good health.

6.	The following are the facts put to him during arraignment in which he understood and pleaded guilty, but said he wanted the court to take into account the circumstances in which the killing occurred.

7.	On 31 December 2019, between 8.00pm and 8.30pm, the prisoner was drinking with his friends when they approached the deceased Clifford Salusalu within the yard of one Mollie Kelemesi.

8.	Clifford Salusalu, the deceased had earlier that night visited Mollie Kelemesi and her family. Whilst he was there, he was invited to have dinner with the family and their other friends. As they were having dinner, the prisoner and their accomplice approached from the direction of the sea and began questioning Clifford as to who shouted at them.

9.	During the confrontation, the prisoner took out a knife and stabbed Clifford on his right arm and left chest.  As he pulled out the knife Clifford fell to the ground unconscious. As he was on the ground, Dellasalle Kiaro continued assaulting him by kicking him on his side and punching him in the face.

10.	Mollie Kelemesi, intervened by saying “Enough you have already killed my brother,” to which a friend of the prisoner intervened by saying, “kill them, we came to kill them”.  When he said that Dellasalle Kiaro turned his attention to the other young men who were also present and threatened to assault them, but they ran away. The prisoner and his accomplice then left the yard and walked away.

11.	Clifford Salusalu was on the ground motionless and after he had his pulse checked by the villagers, was rushed to Bogia Health Center, where he was confirmed dead.

12.	In the presentence report, the prisoner said that the only reason he approached the deceased was because he swore at him and threw punches at him and he retaliated by stabbing him with the knife. I will outline the facts as the prisoner saw it and provided in the pre-sentence report later in my judgement.

         D	OBJECTIVE OF SENTENCING 

13.	I ask myself a basic question - what is it that I am trying to achieve in this exercise? Upon the issuance of my orders, what is it that will be the result of this exercise? I find this statement from the United Kingdom Sentencing Council helpful, to clarify my initial question:

“A sentence aims to:

•	Punish the offender – this can include going to prison, doing unpaid work in the community, obeying a curfew or paying a fine.
•	Reduce crime – by preventing the offender from committing more crime and putting others off from committing similar offences.
•	Reform and rehabilitate offenders – changing an offender’s behaviour to prevent future crime for example by requiring an offender to have treatment for drug addiction or alcohol abuse.
•	Protect the public – from the offender and from the risk of more crimes being committed by them. This could be by putting them in prison, restricting their activities or supervision by probation.
•	Make the offender give something back – for example, by the payment of compensation or through restorative justice. Restorative justice gives victims the chance to tell offenders about the impact of their crime and get an apology.” (https://www.sentencingcouncil.org.uk/about-sentencing/sentencing-basics/#:~:text=A%20sentence%20aims%20to%3A,off%20from%20committing%20similar%20offences.)

14.	In Papua New Guinea, Kapi J (as he then was) expressed it this way in Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone [1980] PNGLR 510 (19 December 1980):
Deterrence is one of the most frequently used purposes in sentencing under this theory, if the sentence so acts upon the accused as to produce lack of repetition of criminal behaviour, the sentence will have achieved its purpose, namely to promote the peace and safety of the community by discouraging subsequent criminal behaviour of the accused. The other desired effect of a deterrent sentence is to warn others and cause them to refrain from the same criminal activity because if they do not they will be punished in the same way.
The second purpose of sentencing is what may be called the separation of the criminal from the society. This theory of sentencing is considered appropriate in crimes which involve grave risk to the personal peace and safety of the members of the community, such as murder, robbery, rape, etc. Emphasis is placed on the protection of the community rather than the offender.
The third theory of sentencing is that of rehabilitation. The emphasis in this theory is on the offender. The theory behind rehabilitation is that the offender should receive correctional treatment so that when he completes his sentence he becomes a useful member of the community, that is, he will obey the law rather than disobey it. In many of the developed countries, like Japan, special correctional have been built for this purpose. In others they have introduced probation services for releasing the offender into the community under special supervision. In this regard, we are far too behind in developing our institutions and programmes to effectively carry out this purpose of sentencing. Legislation for probation is now under consideration. Until these programmes are developed in this country, many offenders who would be considered under this theory of sentencing will not receive what many other offenders receive in other countries.
The fourth purpose of sentencing is retribution. This theory of sentencing may be referred to as vengeance. This conveys the notion that the person who commits a crime must pay for it, or deserves it. This purpose of sentence is not foreign to the cultures of the people of this country. This is what is normally referred to as payback. This notion grew out of many years of tradition in the village. A person who broke the rules or customs of the village deserved punishment.”
15.	Obviously, there a number of interests that must be considered. This need to balance the various interests was highlighted in Veen v The Queen (No 2) (1988) 164 CLR 465, where Mason CJ, Brennan, Dawson and Toohey JJ said at 476:

“… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

16.	The complexity of the exercise was also highlighted in R v Engert (1995) 84 A Crim R 67 where Gleeson CJ said at 68 after discussing Veen v The Queen (No 2):
“A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. …
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.”

17.	Although I have cited Australian cases, nevertheless they describe what I am grappling with in this exercise. In Papua New Guinea, Kapi J (as he then was) understood it this way in Acting Public Prosecutor v Aumane, Boku, Wapulae, and Kone:

“The agonizing task for the sentencing judge is to evaluate which of these theories of sentencing should be achieved in the particular case he is dealing with. A judge is faced with a dilemma because if he chooses one theory of sentencing he is likely to frustrate the other theories. In some cases, a judge will need to give a balanced consideration to all the theories of sentencing. In others, a judge will want to emphasize or achieve one theory of sentencing more than others in certain classes of offences.” 

18.	The prisoner has committed a very serious offence, the killing of another human being. The gravity of it is highlighted by the maximum penalty of life imprisonment. He has to be punished for it. Yet, as a human being, the prisoner is clothed with dignity and is entitled to rehabilitate his life and live a new life free of crime. But we live in a society, and our lives are interconnected. We must strive for a society free of crime where peace flourishes and law and order is maintained and people feel protected. I must bear this in mind too, so that other potential offenders do not entertain the notion of taking another person’s life. In all this, there is a family that is grieving for a loved one, whose life has been unnecessarily taken away. Their interest must be accommodated too. What then is the outcome that encapsulates these conflicting, overlapping and meandering interests? 

19.	This is why I cite the cases of R v Engert and Veen v The Queen (No 2), as they express well the various interests, I have to weigh out in coming to my sentence. It is not an exact science, with fixed formulas and precise answers.

20.	I must apply the law as enacted by parliament, representing the people of Papua New Guinea, as to what they feel is the appropriate sentence for a crime of this nature, committed in the unique circumstances, no doubt each case presents. This is why parliament has given me, the court, the discretion to determine an appropriate sentence under s 19 of the Criminal Code, and not be constrained where the facts of the case warrant me to exercise a free hand.

21.	Ultimately, what is important is what is described as the principle of proportionality.  The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Although society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction is should not be too severe or too lenient.

E	SENTENCING GUIDELINES 
22.	The maximum penalty for murder under s. 300 of the Criminal Code is life imprisonment. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Whilst not in that category this offence remains very serious.

23.	I begin by looking at what the court said in Simon Kama v The State (2004) SC740 in relation to a murder case:

“On the court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors, both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) and Simbe v The State for  murder  cases are relevant with the following variations based on the  sentences  imposed to date and the prevalence of the offence:

(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a  sentence  between the range of seventeen (17) to thirty (30) years;

(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a  sentence  of thirty-one (31) years to life imprisonment;

(d) On a plea of not guilty, with no other aggravating factors a range of  sentences  from seventeen (17) to twenty-one (21) years;

(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of  sentences  from twenty-two (22) to forty (40) years;
(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a  sentence  of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence, [that] may warrant a  sentence  lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons.”

24.	I have also had regard to the Supreme Court case of Manu Kovi v The State (2005) SC 789. It has been cited with approval in subsequent Supreme court cases such as Nita v The State (2020) SC1983. The range of sentence for murder proposed by Manu Kovi are as follows:

(a)	Category 1: In plea case where there are mitigating factors with no aggravating factors i.e., no weapons used, minimum force used, little or no planning and the absence of strong intent to do GBH: 12 – 15 years’ imprisonment.

(b)	 Category 2: In a trial or plea where there are mitigating factors as well as aggravating factors, i.e., weapon used, some element of viciousness, some pre-planning and no strong intent to do GBH: 16 – 20 years’ imprisonment

(c)	Category 3: In a trial or plea where there are special aggravating factors and the mitigating factors are reduced in weight or rendered insignificant by gravity of offence, i.e., dangerous or offensive weapon used e.g., gun or axe, vicious attack, pre-planned attack, strong desire to do GBH and other offences of violence committed: 20 – 30 years’ imprisonment.

(d)	 Category 4: Worst case in a trial or plea where there are special aggravating features, no extenuating circumstances, and no mitigating factors or rendered insignificant by gravity of the offence i.e., pre-meditated attack, brutal killing in cold blood, killing innocent or harmless person, killing in the coursecommitting another serious offence and complete disregard of a human life: Life Sentence.

25.	I state again that it is a general principle of sentencing that the maximum penalty applies only to the most serious instances of an offence - the worst possible case normally encountered in practice. This is an application of the “principle of proportionality” referred to above.

F	SENTENCING DISCRETION  

26.	As the court of first instance in deciding sentence, the Criminal Code confers a discretion on me to decide the appropriate sentence. On this point, I adopt what Berrigan J said in State v Namaliu (2020) N8506 at para 15:

“Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence should be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. In a case of homicide, careful regard must be had to the circumstances of death and the way death was caused: Rex Lialu (supra).”

27.	I also bear in mind what Salika DCJ (as he then was) said in State v Paugari (2011) N4438 at para 51 and 52:

“51. By authority of the Manu Kovi case the sentencing trend for category 2 types of  murders  is locked between 16 years and 20 years, but if I were to apply s.19 of the Criminal Code, I would have a discretion to consider a non custodial term and consider a term from life to a term of years imprisonment.

52. In this case I will, with respect go back to s.19(1)(a) of the Criminal Code and to come to an appropriate  sentence  and I will consider other case precedents on  murder  cases, and I will consider the circumstances of the case to come to an appropriate  sentence.”

28.	I consider that these are correct statements of the law, premised on s 19 of the Criminal Code. I do so on the authority of Kumbamong v State (2008) SC1017, which stated as follows:
“67. Section 19 of the Code makes it clear that, a trial Judge has a wide discretion to impose any punishment from a term of years to life imprisonment. It is worth noting that, the discretion thus vested in the courts is not subject to any guidelines to be set by the Supreme Court or anybody. The discretion is instead left entirely within the discretion of a trial judge. That discretionary power ought to be exercised judicially and according to law and not arbitrarily, vaguely or fancifully. It must be exercised on proper grounds for good reason and not capriciously.”
29.	I will therefore weigh out the various factors brought about by the peculiar circumstances of this case and decide an appropriate punishment.

G	SENTENCING TREND ON MURDER 

30.	I conducted a survey of the length of sentence in murder cases, which has some semblance of similarity with the present case. This will enable me to decide an appropriate sentence that is comparable to other cases with similar facts.

31.	The factors I found relevant for purposes of comparison are that there was a weapon used, the offender was a first-time offender, there was a level of de facto provocation involved and it was a guilty plea.
No	Case and Year Decided 	Circumstances of the case	Period of sentence ordered 	
1. 	Nita v State [2020] PGSC 77; SC1983 (7 August 2020)	The appellant pleaded guilty to hitting the deceased, who had been accused of killing Terry Milim by sorcery, with a heavy, dry piece of wood. Terry Milim was the appellant’s father-in-law. The appellant continued to hit the deceased on the head and on other parts of the body while he was on the ground, rendering the deceased unconscious. The appellant then dragged the deceased by the legs in the direction of the haus krai for Terry Milim, eventually dumping the deceased in the middle of a road near the haus krai. The deceased was still alive at that stage. Bystanders came to his aid and he was rushed to Tabubil Hospital, where he died several hours later.	18 years 	
2.	State v Paugari [2011] PGNC 159; N4438 (7 October 2011)	Found guilty of murder after trial. “It was a finding of the court at the trial that when Laurie Kemuel and the other prisoners met with Johnson Isau, Laurie told Johnson what happened to him. Johnson said they should go back to Ishmael's house to sort out the matter. All the prisoners, including Saina and Johnson and others went to Ismael's house and destroyed his house. Buka, the deceased was fatally wounded during that raid.” (at para 5 of the judgement)	10 years 	
3.	State v Young [2008] PGNC 212; N3548 (10 September 2008)	Prisoner was a bystander, watching a group of men shouting obscenities. However, he soon got involved. At that time, he was armed with a double edged knife. The prisoner assaulted one of the men. The deceased chased the prisoner, who then used the knife to stab the deceased and one other. The deceased died from the stab wound.	17 years	
4.	State v Wakore [2007] PGNC 61; N3222 (16 August 2007)	Guilty plea. There was a dispute between clans in a village after a man was alleged to have committed adultery with another man’s wife. Two clans had a confrontation and in the course of it the offender shot dead the victim.	12 years	
5.	State v Laiam [2010] PGNC 61; N3995 (22 April 2010)	The Offender pleaded guilty to murder. He used a knife to stab the victim, a young 20 years old man, once on the chest. This was a culmination of an ongoing uneasy relationship between the offender and the deceased.	15 years	
6.	State v Taria [2014] PGNC 293; N5928 (30 October 2014)	Guilty plea. The offender had two wives; the deceased was his second wife. In the late night of the incident he was drunk and unstable at the time. He met the deceased and an argument erupted leading into a fight. The fight got serious, and he beat his wife badly where she sustained fatal injuries to her body. She died as a result of her injuries.	13 years	
7.	State v Muturu [2012] PGNC 322; N5163 (28 November 2012)	The deceased was standing in front of a canteen. He was drunk. The deceased called out to the prisoner. When he approached him, an argument erupted between the two of them. In the course of the argument the deceased punched the prisoner he fell down. The deceased walked away leaving the prisoner on the ground.
He got up and ran after the deceased. He then stabbed the deceased from behind with a kitchen knife. The knife penetrated the left side of the deceased's chest and pierced the apex or top of his heart. This resulted in the deceased losing a lot of blood from which he died almost immediately. He intended to cause him grievous bodily harm but ended up killing him instead.	13 years with 5 years suspended.	
8.	State v Harry Heni & 2 Ors;
Cr Nos 487, 278 & 279 of 2009 (unreported case referred to in the judgement of Salika DCJ (as he then was) in State v Paugari)	Trial –  murder , prisoner in company of other offenders, armed with knife and pieces of wood attacked deceased, the deceased was initial and main aggressor, deceased sustained stab wounds and 1 proved fatal, no pre-planning, no compensation paid, mob attack, 2 offenders juveniles at time offence was committed, youthful offenders at the time of  sentence.	1.Mire Basanu (21 yers old) – 10 years
2.Totona kakana (30 years old) 9 years
3.Tawan Yasaling (16 years old) 8 years
4.Karao Kakanana & Bayawe Eli (16, 17 & 18 years) 7 years
5.John Yowa (15 years) 6 years
	
9.	State v Dani [2020] PGNC 254; N8469 (19 August 2020)	On 27 August 2019 at Bom village in the Rai Coast District of Madang, the husband and wife prisoners murdered Kuya Masai. The dispute arose over a family plot of land said to be owned by the Prisoners. Upon learning that their newly planted garden produce was destroyed by the deceased. The wife prisoner summoned her husband to come and see what had happened. Upon the two prisoners arriving at the garden, the two brothers fought in which the Prisoner cut his brother with a bush knife which led to his death, due to loss of blood. All along the wife prisoner was encouraging her husband to cut the deceased.	1.Sawa Dani – 18 years;
2.Loreta Sawa – 10 years, with 9 years suspended.	

32.	I consider each of these cases. In my view, this case is not in the category of Nita, as there was no element of viciousness displayed by the offender in that case. In this case, there is an element of de facto provocation that was not present in Nita. So I would consider that a sentence of less than 18 years would be appropriate.

33.	 This case falls within the range of Taria and Wakore. Taria was decided in 2014, a case where the husband was drunk and beat his wife badly who died later from the injuries. It was plea matter, and a first-time offender – a sentence of 13 years was imposed. Wakore was decided in 2007. A clan dispute erupted from an alleged adulterous relationship and the offender shot the deceased. It was a guilty plea. A term of 12 years was awarded.

34.	I will therefore decide an appropriate sentence based on the three cases I have discussed here. 

H	MITIGATING FACTORS  

35.	For mitigating factors, the prisoner submits that the following factors stand in his favour. They are:

•	First-time offender;
•	Shown remorse;
•	Completed education and is looking forward to work;
•	Raised by his single mother, and there was no father figure that could support him and his siblings;
•	Surrendered and cooperated well with the police;
•	Intends to find work and support his family;
•	Home and belongings burnt in retaliation and mother has lost her only support;
•	Only a single blow was inflicted and the deceased did not die a slow and agonising death; and
•	The offender acted alone and not in a group.

36.	I accept the prisoner’s submissions on his mitigating factors, except for the evidence on the number of blows. The undisputed evidence is that there were two knife wounds – one to the chest and the other to the arm.

I	AGGRAVATING FACTORS 

37.	For aggravating factors, the State submits that the following factors stand against the prisoner. They are:

•	Use of a dangerous weapon, a kitchen knife;
•	Deceased was murdered while having dinner with family members;
•	Deceased was stabbed twice – on the back and on the chest;
•	Strong desire to cause grievous bodily harm when the deceased swore at him;
•	Prevalence of the crime of murder in the Bogia district and the court should give a penalty that will deter others.

38.	I accept the State’s submissions on the aggravating factors and will weigh them out against the mitigating factors.

J	ALLOCATUS AND PRE-SENTENCE REPORT 

39.	In the allocatus, the prisoner stated the following:

•	Apologised to the court;
•	Apologised to the family of the deceased;
•	Apologised to his own family, who had their property burnt as a result of the death;
•	The deceased is his cousin – their mothers are sisters;
•	His mother is single and looks after his elder deceased brother’s child. He wants to continue his education so that he can look after his mother, brother’s son and three younger siblings;
•	He is a first-time offender, and asks for courts mercy, and a lenient sentence;
•	Requests to be transferred to the highlands region so that he can continue his education. 

40.	As to the pre-sentence report, I highlight the following relevant matters.

41.	 Part A sets out the background information on the accused:

•	The prisoner is 23 years old, in a family of five (5), with his elder brother dying in 2018;
•	Completed a business course and is looking forward to getting employed and supporting his family;
•	Not financially independent;
•	Good health;
•	There is no information of prisoner’s participation in community activities;
•	The victim’s father does not want compensation and wants the prisoner to serve his full term;
•	Persons who were having dinner with the deceased when the death occurred described the prisoner as a “street fighter” and has been involved in some incidents in the past and he should feel the full force of the law for what he has done.
•	The prisoner says he plans to find work when he is released from prison but says that all his certificates were burnt down when the family of the deceased retaliated;

42.	Part B of the report provides the Probation officer’s assessment of the prisoner:

•	The prisoner’s mother says that it is a painful experience for her and she is surprised about what her son did, as he is well behaved;
•	The prisoner’s mother also is worried about how they will fare as all their belongings have been burnt down;
•	The mother also says that the deceased’s immediate family do not want to reconcile nor do they want compensation;
•	The report provides the following with regards to the circumstances surrounding the killing:

“Dellasalle Kiaro stated that it was on a Tuesday evening and he was walking with Sigu Baduk and Dickler Pasopai outside Mollie Kelemesi’s residence when he heard late Clifford Salusalu called out his name and swore at him three (3) times.  He then took a torch and went in and asked everyone sitting underneath the house and no one responded He said they were all sitting down and facing the road where they were walking on and he continued on to ask Mollie Kelemesi and she replied that Clifford swore..  Dellasalle then turned to late Clifford and asked him but without any warning.  Clifford slapped him and punched him and they started fighting each other.  Dellasalle then pulled out a small kitchen knife shoved it in his left side and late Clifford screamed and said to him ”knife nogat, mi brother blong yu’ and so Dellasalle removed the knife and left the house.  He then met up with Sigu Baduk and Sigu got him to his house at 8.30pm and whilst at home, Clifford family came rushing and Dellasalle ran for cover and Clifford’s family set their house on fire.”

•	The prisoner realises the gravity of his offence, he is sorry and asks the court to be lenient with him; and
•	A community leader was interviewed and says that since no reconciliation has taken place, the prisoner could be a risk to himself and his family.

43.	Part C of the reports on the suitability of the prisoner for probation and states the following:

“Your Honour, whatever sentence it may be for the sake of justice and social rehabilitation of this accused, may such a sentence is served over a reasonable period of time.”

44.	I take the pre-sentence report into account as well and highlight its importance in terms of community attitude and the views of the victim’s family.

K	SUBMISSIONS 

45.	In the prisoner’s submission on sentence his lawyer submits that this case falls within the mid category of Manu Kovi that is 16-20 years. The Defence however submits further that the court is empowered under section 19 of the Criminal Code to exercise its discretion despite the maximum penalty of life imprisonment.

46.	The prisoner contends the case at hand is a case where an unsophisticated boy without a father through his struggles in life to support his mother raise his younger siblings, and was in his village preparing to attend to the next stage in his life when provoked and at the spur of the moment and in the heat of passion did what he did.

47.	In the prisoner’s contention the mitigating factors outweigh the aggravating factors and given the circumstances of the prisoner’s case the court should impose a lenient sentence. The Defence therefore submits that the court should impose a sentence of 10 years with a period suspended.

48.	On the other hand, the State submits that the case falls within the second category of Manu Kovi where there are both mitigating and aggravating circumstances. The State says the attack was vicious, weapon was used on a defenceless person and the accused had a strong desire to kill and should therefore attract a sentence between 20 to 30 years.

49.	The State draws the court’s attention to the seminal case of Simon Kama v The State (2004) SC 740 where it opined that a guilty plea case with aggravating factors other than a firearm and no other offences involved, a period between 17 to 30 years would be relevant.

50.	The State relies on the case of State v Ngaufu (2011) N4554 as being relevant where the court awarded a sentence of 25 years. It was a murder case where the offender had pleaded guilty. The facts of that case were that the offender had heard his other relations lamenting womenfolk from their Tanga Island being sexually harassed by male Sepik settlers. Incensed by what he was hearing, the prisoner decided to confront the alleged perpetrators alone when his fellow Tanga islanders resisted his urging for reprisal. He armed himself with a bush knife and followed a track towards a John Soma bottle shop where Sepik settlers were known to reside. Philip came upon the deceased, Felix Ipun of Sepik origin and attacked him in his sleep under a breadfruit tree.

51.	The State has also highlighted relevant matters in the pre-sentence report. That is that the prisoner and his relatives called themselves “street fighters.” The deceased’s family do not want compensation, nor do they want to reconcile. Importantly the State highlights the prevalence of this type of offence in the Bogia District of Madang.

52.	Considering all the factors, the State submits that the prisoner should be sentenced to a period between 17 to 30 years.   

L	WEIGHING THE CONSIDERATIONS 

53.	I have had regard to the facts of this case, the objectives of sentencing, the sentencing tariffs, similar cases, the mitigating and aggravating factors, the allocatus, the pre-sentence report and the submissions of counsels.

54.	There is some slight difference between the brief facts provided to the court for purposes of arraignment and that provided in the pre-sentence report. I will give the benefit of the doubt to the prisoner and place much reliance on the facts as stated in the pre-sentence report. The one major departing fact is the number of blows inflicted. The medical report in the depositions show a stab wound to the chest and lacerations to the arm. I accept that.

55.	I am persuaded by Mr Zauyai’s submission that that this is not the most serious of cases for murder and that the court is not bound by the Manu Kovi guidelines and can impose a sentence depending on the circumstances of this case by invoking its discretion under s 19 of the Criminal Code (Kumbamong v The State (2008). This view was also highlighted by Salika DCJ (as he then was) in State v Paugari.

56.	In light of all these factors I am looking at a sentence that will punish the offender for the very serious offence he has committed, which will also act as a deterrent to others, but should provide an opportunity for the prisoner to rehabilitate himself. This is due to the fact that the offender is youthful offender with no prior conviction and has expressed genuine remorse for his crime.

57.	I am not inclined to follow the court’s decision on sentence in Ngaufu as the facts suggest that it was a case of wilful murder, but the offender was arraigned on a murder charge for the purposes of a guilty plea. I also do not see the relevance of State v Damun (2011) N4295, submitted by the Defense, as it involved manslaughter.

58.	I have a strong view that the mitigating factors outweigh the aggravating factors, so I am inclined towards a period of 10 years. However, in the pre-sentence report, it has come out clearly that the victim’s family do not want compensation and reconciliation. I take that into account as well. But I do not give it any more weight than I should as they have also taken the law into their own hands by burning down the prisoner’s home, which belonged to an innocent single mother. The state’s submission that this offence is prevalent in the area, and also the fact that the prisoner trespassed into a family home who was peacefully having dinner and stabbed the victim after an altercation in the chest and arm has pushed me to consider a sentence of more than 10 years.

59.	But I am not inclined to accept the State’s submission for a sentence between 17 and 30 years given the existence of de facto provocation, an early guilty plea, the offender is a first-time youthful offender having expressed remorse for his crime. The prisoner did not plan the killing and it happened on the spur of the moment. I am persuaded by the range of sentence imposed in the cases of Taria and Wakore which have some semblance of similarity with this case. Both are murder cases on a guilty plea. Considering these factors, the sentencing trend and in the exercise of my discretion under s 19 of the Criminal Code, I have decided to sentence the prisoner to 13 years in hard labour, less the period already spent in custody.

60.	I am not persuaded to suspend any of the sentence considering the pre-sentence report highlights the raw feeling that still exists between the two families. As the prisoner now seeks to live his dream post sentence period, he must also live with the reality that his quick and thoughtless action has crushed the dreams of another human being to a fulfilling life.

61.	I only state in passing that if the prisoner is of good behaviour during the minimum parole eligibility period of his sentence, he can apply at the appropriate time to be released on parole, which is most likely one-third of his sentence of 13 years.

62.	I will however accede to the prisoner’s request to serve time in a prison in the Highlands region, but will require the prisoner to file an application for transfer stating the reasons for the transfer in an affidavit and naming a specific correctional institutional facility before I can consider making any order for him to be transferred.    

M	ORDERS

63.	I therefore order that the Delasalle Kiaro is sentenced to 13 years in hard labour less the period already spent in custody. 

64.	The prisoner is at liberty to apply within two weeks from today to be transferred to another correctional institution in the country.

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused