N9009
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1293 OF 2020
CR 1295 OF 2020

THE STATE
V
LEO SIPRANDU & BRYAN SIPRANDU
Bialla:    Batari J
2021:    14th July

CRIMINAL LAW – sentence – murder – accused attacked deceased with bush knife with intent to cause grievous bodily harm – unlawful killing – plea – prevalence of – factors in mitigation – provocation – 16 years imprisonment appropriate

Cases Cited

Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299
John Elipa Kalabus v The State [1988] PNGLR 195
John Kapil Tapi v The State (2000) SC 635
Kepa Wanege v The State (2004) SC742
Kesino Apo v The State [1988] PNGLR 182
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC 789
Paul Mase & Anor v The State [1991] PNGLR 88
Simon Kama v The State (2004) SC 740
The State v Chan Alois and Augustine Tutut (2008) N3668
The State v Joshua Samson (2007) N4994
The State v Laura (No.2) [1988-89] PNGLR 98.
The State v Lomboi Wambura (2017) N6967
The State v Rabuni Mogui Dai (2011) N5268

Counsel

A. Bray, for the State
B. Takua, for the Accused
DECISION ON SENTENCE

14th July 2021

1.	BATARI, J:  This is a sad case of two brothers aiding and abetting each other to unlawfully kill a fellow-settler and neighbour.  Alcohol was involved.  This morning, each prisoner pleaded guilty and was convicted of the murder of Samuel Loko in contravention of s. 300 (1)(a) of the Criminal Code. 

Background

2.	The parents of Leo Siprandu and Bryan Siprandu, originally of Wosera-Gawi, East Sepik Province are I think, amongst the first settlers in WNB Province some 40 years ago under the government Land Settlement Scheme (LSS).  The prisoners are possibly the second or third generation settlers.  The deceased was originally from neighbouring Nuku District, West Sepik Province.  His Block 412 is next to the prisoners’ Block 411 at Section 4, Tiaru LSS Sub-division, Bialla. 
  
3.	On the night of or about, 28/8/2020, Leo and Samuel were with others at Samuel’s block, drinking.  An altercation between the two escalated into a fight in which Samuel cut Leo’s hand with a bush knife.  Leo retreated to his block, but Samuel continued to infuriate him with name-callings and verbal abuses.  Leo returned armed with a bush knife and in the ensuing struggle, Leo regained possession of the knife and cut Samuel on his hand.  Samuel fell to the ground from the impact.

4.	Leo’s brother, Bryan Siprandu joined the fight and attacked Samuel with a bush knife, inflicting a fatal deep, long wound to the left side of the face and neck.  The deceased also sustained associated injuries to the head, thumb, and fingers.  The deceased died from massive blood loss due to severed arteries and jugular vein.  

The Law

5.	The crime of murder under s. 300(1)(a) of the Code is complete if the offender intended to do grievous bodily harm to the person killed or to some other person.  The prescribed maximum penalty is life imprisonment.  This is not mandatory.  The Court may impose a term of years under s 19.  In exercising its sentencing discretion, the sentencing authority is required to consider relevant facts (both apparent and latent) from the whole of the circumstances of the offence for and against the offender, his personal circumstances and whether the conviction followed a trial or a plea.  

6.	In this case, I will deal first with the mitigating factors and next, factors against the offender followed by considerations on the sentence.

A.	MITIGATION

7.	Counsel for the prisoners, Mr. Takua has made some useful submissions on several factors the Court ought to consider.  Counsel also relied on case authorities on sentencing principles and guides on murder sentences.  On allocutus, each prisoner expressed contrition and remorse.  I will refer to some of those matters in so far as they are relevant and important factors in mitigation.

1)	Arrest & custody,  cooperation with police

8.	Leo and Bryan Siprandu were arrested around 7/9/2020 soon after the incident.  They gave themselves up to the police.  I see this as proof of personal acceptance of wrong-doing and willingness to submit to the rule of law.  Leo readily confessed the killing.  Bryan was hesitant.  He has since made admissions and pleaded guilty.  Their early surrender and admissions of criminal conduct are matters that go to support their expression of remorse.  These also add weight to the guilty plea factor.  
  
9.	The prisoners’ pre-trial custody period is 10 months.  This period may be insignificant in such serious charges as wilful murder, murder, rape and aggravated robbery.  It is a discretionary matter.  In this case, I consider that the prisoners’ conduct following their commission of the offence is exceptional and worthy of consideration.  I will deduct the 10 months from the head sentence.

2)	Plea

10.	A plea of guilty will usually be reflected in the final outcome of the sentence imposed.  The common rationale is the savings of time and expenses to run a trial.  There is however more to the advantage of pleading guilty, though there has not been any comprehensive discussion on the reasons given for a discount for a plea of guilty or of the measure of that discount.  In The State v Joshua Samson (2007) N4994 his Honour Justice Cannings made these remarks:

	“12.     As the offender has pleaded guilty, he is entitled to the benefit of the 	doubt on mitigating factors that are apparent from the depositions, the 	allocutus (or plea) or matters raised by his defence counsel that are not 	contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). 	The rationale is that giving the benefit of the doubt provides an incentive for 	accused persons to plead guilty and is a benefit accorded to them for saving the 	State extra resources that would have been committed to the case if a trial were 	necessary. Here, it is significant that the offender made admissions in police 	interview on 30 March 2000.”

11.	In, The State v Chan Alois and Augustine Tutut (2008) N3668 his Honour Justice Lay made these observations:

	“15.      There appears to have been no comprehensive discussion in our case 	law on the reasons given for a discount for a plea of guilty or of the measure of 	that discount. It has generally been accepted that a plea of guilty, if timely, 	entitles the offender to a discount on the head sentence because it:
	a)	saves the court time;
	b)	avoids the stress of victims giving evidence;
	c)	is in some cases evidence of remorse. See for example State v Michael 		Amuna Koupa [1978] PNGLR 208 Wilson J; The State v Morobet Awui 		Koma [1987] PNGLR 262 Wilson J; State v Albert Monja [1987] 			PNGLR 447; The State v Bill Baru (1997) N1546 Batari AJ; State v 			Foxy Awonipa (1999) N1910; State v Fano Kuromu [1999] PNGLR 553; 		Acting Public Prosecutor v John Airi  (1981) SC241 Andrew, Miles and 		Bredmeyer JJ.; Wellington Belewa v State [1988-89] PNGLR 496, 			Bredmeyer, Woods & Barnett JJ.”

12.	The value or effect of the plea may also depend on the serious nature of the offence and whether there are mitigating factors like good background, restitution, old age, young age, etc., remorse and contrition. In John Elipa Kalabus v The State [1988] PNGLR 195 Kidu CJ suggested regarding such serious crimes of violence, “as wilful murder, murder, violent rape or violent armed robbery, a plea of guilty by itself deserve no credit”

13.	In, The State v Rabuni Mogui Dai (2011) N5268, it was stated:

	“1. The value of a guilty plea should be reflected in the final sentence, as a 	reward, and as an incentive to plead guilty, at [8];
	2.  The value to be given to a guilty plea must depend on a number of factors 	namely, but not exhaustive to:
	a)	seriousness of the offence;
	b)	circumstances of aggravation;
	c)	factors in mitigation;
	d)	young age or old age of offender;
	e)	how soon it is taken after committal.”

14.	In this case, the pleas were taken early.  It is also evidence of remorseful conduct as seen in the early surrender and co-operation with police.  I will take this into account for its general effect on a discount from the head sentence for the time and resources saved to run a trial and as an incentive to plead guilty. 

3)	Remorse 

15.	On allocutus, each prisoner spoke at length expressing remorse and regret over their actions generally and to those immediately affected by their conduct.  It is important that they did that personally in open Court because of the opportunity to form a view on their demeanour.  I accept their expressions of remorse are genuine.  It is consistent with their surrender and cooperation with the police and guilty pleas.  

4)	Personal Circumstances 

16.	The prisoners’ personal backgrounds are set out in their respective Police Antecedent Reports.  Mr. Takua has also referred to the personal circumstances of each prisoner prior to the killing.  Suffice to note, that both prisoners are young first-time offenders with young families.  This also indicates stable upbringing and responsible background.  Leo is aged 23 years and Brian is aged 19.  Their parents are still alive and no doubt reliant on both prisoners’ help at the family block.  Bryan is more resourceful, managing two oil palm blocks.  There is nothing much else noteworthy about their past.

5)	Motive

17.	The killing arose out of social drinking.  In the initial fight Samuel cut Leo with a bush knife and Leo did the most decent thing to retreat.  Yet, Samuel continued to hurl verbal insults and abuses at him.  This precipitated the second fight and Samuel’s death.  Enraged by Samuel’s antagonising outbursts, Leo grabbed a bush knife and confronted Samuel.  The two struggled over the knife before Leo chopped the deceased on the left hand.  Bryan then attacked Samuel with a bush knife resulting in massive blood loss and subsequent death. 
  
18.	From these circumstances, elements of provocation in the non-legal sense were present.  Bryan was present and aiding his brother throughout.  I accept, that the prisoners had reacted on impulse in a situation that had suddenly presented itself.  The attack was not pre-planned, it was instantaneous.  

19.	This killing involved, alcohol.  An innocent social drinking spiralled into an unfortunate tragic consequence.  The effect of alcohol was no doubt, the influencing factor in the fight between the prisoners and the deceased.  It is not an excuse.  But it provides an explanation.  In The State v Lomboi Wambura (2017) N6967 I made these observations when discussing intoxication as a mitigating factor:

“18.	Intoxication is not an excuse if the accused voluntarily got drunk to give him/her courage to commit the offence. In that case, intoxication may be considered as an aggravating factor: The State v Jacob Cajetan (2016) N6383. Conversely, alcohol may to some extent influence an extreme behaviour not otherwise expected of a person in his normal self as his self-control is affected. So, this may lessen culpability. However, on its own, intoxication may not be a significant mitigating factor as Kapi DCJ (as he then was) stated in Kesino Apo v The State [1988] PNGLR 182 (Kapi DCJ., Woods, Los JJ.) at p183;

	‘It may have some bearing if considered together with other 	circumstances, such as provocation in fact for the purpose of sentence. 	In the end result, the influence of alcohol cannot be a significant factor 	in mitigation of sentence.’   

19.	In Paul Mase & Anor v The State [1991] PNGLR 88 Kidu, CJ and Amet, J (as he then was) in a joint judgment stated almost the same thing that;

	‘If people drink liquor, get drunk and commit crime they must not expect 	leniency from the courts unless, of course, the intoxication is shown to 	have the effect of diminishing responsibility.  Such was not the case 	here.’”

20.	In this case, intoxication no doubt, contributed to the serious culpability of the prisoners’ conduct.  As a matter of fact, the effect of alcohol can induce an extreme behaviour not otherwise expected of a person in his normal self as his level of self-control, his level of tolerance and restraint under provocation is decreased.  The deceased was the aggressor both physically and verbally.  He pushed Leo to breaking point.  The intoxication factor is supported by the provocation factor: Kesino Apo v The State [1988] PNGLR 182; Paul Mase & Anor v The State [1991] PNGLR 88.  

21.	In the context of those factors, the serious culpability of the offenders is lessened.  However, this does not excuse their conduct.

6)	Compensation

22.	Mr Takua handed up a memorandum of compensation confirming payment of K21,851.00 in cash together with some food items.  Half of that amount was from the Provincial Government paid as, “bel kol moni.”  Mr Takua submitted the fact of compensation payment should be accepted as a mitigating factor.

23.	In Kepa Wanege v The State (2004) SC742, the Supreme Court stated this about compensation as a mitigating factor:
	
	“With regard to compensation, the law is that the payment of any compensation 	does not excuse an offender from his criminal liability.   Instead, in appropriate 	cases, it can only be a factor in mitigation.  A recent statement of the legal 	position is by Kandakasi J in The State v. Darius Taulo1 in these terms:
		
‘…only if an offender personally attends to paying compensation, he would be entitled to argue for that to be taken into account has a factor going in his favour and in his mitigation. But under no circumstances should compensation be a substitute to penalty. This is to avoid wealthy or well to do criminals from buying their way out of their criminal 	responsibilities and render the whole purpose and or functions of criminal law sentencing useless and or meaningless.’
	
Compensation can be taken into account as a mitigating factor only when there is appropriate evidence confirming, the payment of any compensation, including the amount paid, when, by whom and to whom.  We pointed this out in the decision we have handed down just a while ago today in Sakarowa Koe 	v. The State (SCRA 47 of 2003).”

24.	The payment of compensation and its customary effect must be proved as a matter of fact.  In, Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299.  Kidu CJ in observing that the trial judge had properly taken into account compensation of money and pigs paid by the respondent and his clan was required by their custom, cautioned at p 301: 
	
	“Those who rely on compensation payment as a mitigating factor have the   	duty to prove, as a matter of fact, the existence of such custom in a proper 	manner. Evidence from the bar table is not 	the proper manner. I would 	myself, in future, refuse to accept such "evidence". I say this because it is not 	every society in Papua New Guinea that requires payment of compensation in 	cases of homicide or death.”

25.	And Kapi DCJ stated at pp 302 – 303:

	“The question of customary compensation to be taken into account on sentence 	must be clearly identified in each case. The general statement in mitigation that 	compensation was paid is of itself not necessarily of any assistance in a 	particular case. The concept of customary payment must be clearly proven and 	its relationship to the concept of penalty. In the Highlands, the concept of 	compensation is connected with the fear of payback killing. Is that connected 	with the concept of customary penalty? There must be a proper evidentiary 	basis upon which the courts can develop the law. This is significant in this 	country where there are many different customs. General statements by counsel 	can no longer be considered sufficient. These matters were not raised by 	counsel or by the court in this case and I have proceeded on the basis that 	compensation was related to the question of penalty.”

26.	There is no evidence before this Court on the requirement to pay compensation under custom and its effect under the Wosera-Gawi and Nuku customary practices.  The onus is on the accused or the person who seeks compensation to make a case based on the customary obligations and practices of his or her society.

27.	In this case, there is evidence of payment of compensation brokered by the Provincial Government authorities and churches.  This was largely to stop the escalating unrest and restore peace and harmony in the LSS community.  The Provincial Government contributed half (K10,000.00 plus) of the cash component of the ‘bel kol moni’ in what I perceive to be a misdirection of public resource. 

28.	In the circumstances, the value of compensation as a mitigating factor is lessened.  I will give it little weight.       

B.	AGGRAVATING CIRCUMSTANCES.

	1) Use of Weapon

29.	The prisoners used bush knives to attack and kill the deceased.  It is settled, that unlawful killing with a weapon aggravates the offence.  The use of such dangerous weapons as, bush knife, grass knife, axe, spear, bow and arrow, rock, timber and so on, indicates a strong fortitude to cause the victim, serious bodily injury, or death.  So, a higher sentence is warranted: John Kapil Tapi v The State (2000) SC 635; Simon Kama v The State (2004) SC740; Manu Kovi v The State (2005) SC789.
 
	2) Personal conduct

30.	Prisoner Bryan attacked a helpless victim after his brother Leo had incapacitated him with a bush knife.  His brutal reaction was uncalled for.  When each prisoner armed himself with a bush knife, the clear inference was at least, to threaten violence and at the most, to cause grievous bodily harm.  His thoughtless and cowardly act indicated the highest degree of disregard for human life against which the severest possible punishment is warranted.
  
31.	I have also considered whether to sentence Bryan differently from his brother Leo.  This was not raised at the hearing and counsel were not given the opportunity to address the issue of disparity of sentence. Nevertheless, both shared the same intention and with that the same level of responsibility.  I will impose the same term.   

3) Nature of injury

32.	The deceased sustained multiple knife injuries to his arm, head, face/neck, thumb and two other finger/digits.  The fatal injury was the deep knife wound to the left face, extending to the jaw and across the neck.  This severed the arteries and jugular vein, causing massive blood loss and eventual death.  The nature of the injury suggested a determined with the murder weapons.  The sentence I will shortly impose takes that into account. 
   
	4) Prevalence of offence

33.	This is one instance of murder killings that is occurring with escalating frequency in this country.  West New Britain Province also has its share of murder killings that seems to be increasing than lessening.  The frequency of such killings just about anywhere in urban or rural areas suggests, mission and government influences have had little impact on attitudes of individuals.  People must surely know that it is unlawful and morally wrong to take the life of a fellow human-being and that the penalty can be severe.  The prevalence of unlawful killings call for deterrent sentences.  I will take that into account.

C.	DETERRENCE

34.	Unlawful killing is the most serious crime in the land such that Parliament has envisioned that the offender meets with the severest punishment.  For wilful murder, the maximum penalty is death.  Where there is no intention to kill and death results from an intention to cause grievous bodily harm, or defence of provocation, accidental, or negligence, (murder, manslaughter killing), the prescribed maximum penalty is life imprisonment.  The prescribed penalties also represent the community abhorrence and disgust at unlawful killings, sometimes committed in bizarre and appalling circumstances.  Unlawful killing is a direct challenge against the sanctity of life as safeguarded by the Constitution.  Those who commit murder will expect to meet with both the retributive and deterrent aspects of sentencing.

35.	Anyone who unlawfully kills shows that he or she has an attitude or propensity towards violence.  No society can tolerate such potentially violent person living freely amongst its people.  The law and prudence demand that any person showing inclinations towards violence must be removed from the society.  Therefore, no amount of personal considerations or sympathy can save the prisoners from the legislative intention of Parliament that anyone who is responsible for a death must be incarcerated.  The court is empowered to apply the law to protect the society by punishing the murderer with imprisonment.

36.	In this case, both prisoners exhibited propensity towards violence.  In terms of deterrence, the sentence I will impose should be sufficient to bring home to each prisoner at personal level, the serious consequences of his conduct.  I consider also that the general deterrence aspect of sentencing is relevant in this case to warn others who are like-minded that anyone who commits murder faces either an indeterminate sentence or a long term of imprisonment.

Appropriate Sentence in all the circumstances

37.	The prisoner’s case does not fall into the worst category of murder warranting the maximum or near maximum penalty.  I have considered the sentencing pattern of the Courts in recent years.  Previously, the tendency was to impose sentences upward or downward from a mid range of 8 years in murder cases:  The State v Laura (No.2) [1988-89] PNGLR 98. The sentences have increased since the case of Lawrence Simbe v The State [1994] PNGLR 38 where a sentence of 14 years on a plea of guilty to murder was confirmed by the Supreme Court.

38.	The Supreme Court in Simon Kama v The State and Manu Kovi v The State although suggested different sentencing ranges for murder, both cases are consistent in proposing increased sentences for unlawful killings. They also suggest in common, the range for murder killings must be higher than manslaughter but lower than the range for wilful murder.

39.	I have referred to those principles.  I agree with Mr Bray for the State that the prisoners’ case fall into a 14 to 18 years range.  The prisoners, each and severally had the common intention to cause the deceased grievous bodily harm resulting in death.  I see no reason and it has not been suggested that I impose different terms.   Allowing for those factors in their favour, the pleas of guilty and the extent of their culpability, Leo and Bryan are each sentenced to 16 years imprisonment IHL.  

40.	From the head-sentence, the period of 10 months each prisoner has spent in custody is deducted.  I have also considered whether to suspend part or the whole of the sentence.  There is nothing before me and I see no good reason to take that course.  The effective term is therefore 15 years, 2 months to serve in hard labour.

Sentenced accordingly 
_____________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused