N8982

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (JJ) NO 16 OF 2021

THE STATE

-v-

FERNANDEZ SIMBEL

Lae:  Kangwia J.
2021:  21st May & 26th July

CRIMINAL LAW - Murder – killing of cousin brother – repeated stabbing – strong intention to cause grievous bodily harm – no regard for sanctity of life - offence prevalent – first time offender – offence committed when a juvenile - funeral expenses paid treated as special mitigating factor – sentenced to 17 years with suspensions and deductions.

Cases Cited:

State v Clement Watete (2017) N6969 
Goli Golu v the State (1979) SC172
Java v The State (2002) SC701
Joseph Enn v the State [2004] SC738 
Kepa Wanenga v the State [2004] SC742  
Manu Kovi  v the State (2005) SC789
Peter Napiri v the State SC137 
Sakarowa Koe v the State [2004] SC739
Simon Kama v the State (2004) SC704
State v Alois Lagu [2011] N4354
State v Daniel Walus (2005) N2802 
State v Dellsalle Kiaro (2018) N7432 
State v Christopher Dubun (2010) N4109 
State v Julius Ombi (No 2) (2004) N2552. 
State v Ruben Donald (2008) N3941
State –v- Sabiu Wari (2011) Unreported Judgment dated 29 March 2011)
The State –v- Polin Pochalou Lopai [1988-89] PNGLR 48 
Ure Hane v State [1984] PNGLR 105 

Counsels: 
P. Matana,	for the State
G. Peu, for the Accused

26th July,2021

1.	KANGWIA J: The prisoner appears for sentence. He was charged with one count of murder under s 300 of the Criminal Code. On arraignment he pleaded guilty to the murder of one Quincy Golimo. 

Facts
2.	The murder arose in the following circumstances. The deceased was a cousin brother to the prisoner. In the dark of 17 September 2020, the deceased and his girlfriend were arguing among themselves. When the prisoner approached them to quell the arguments, the deceased became angry for the intrusion and a fight erupted between the deceased and the prisoner.
 
3.	They separated and the prisoner left the scene. The prisoner after realising that he was bleeding, went to his house and picked up a knife. He went to where the deceased was and another fight erupted. In that fight the prisoner stabbed the deceased several times with a knife.
 
4.	According to the medical report, the deceased died from loss of blood through wounds sustained on the right shoulder, left upper back, and left back. 

Antecedents 
5.	The prisoner is 18 years old single and resides at Bumbu settlement. He was 17 years old and doing his grade 11 at Bugandi Secondary School when charged. He has no prior convictions. 
On his allocatus the prisoner said,’ I say sorry to the Court for breaking the Constitution. We fixed the matter at home. I am a first- time offender. I am also a student. I ask for the mercy of the Court.” 
Submissions
6.	On the prisoner’s behalf Ms Peu through a written submission after highlighting the sentencing principle for murder suggested that a sentence of 10 to 14 years with suspensions and deductions considering the sentencing trend in the cases she cited, was appropriate. 

7.	The prisoner pleaded guilty early saving time and expenses in conducting a trial, he was a first-time offender, he cooperated with police, he expressed remorse, there was no pre planning and de facto provocation was present. 
 
8.	Several cases were cited as guides in sentencing. The following are considered relevant. 

In the Case of State v Clement Watete (2017) N6969 where the prisoner who attacked and killed his father was sentenced to 16 years with deductions on a guilty plea.
In the State v Dellsalle Kiaro (2018) N7432 the prisoner on a guilty plea to stabbing the deceased several times was sentenced to 13 years.
In the case of the State v Willie Gideon (2018) N7340 the offender who pleaded guilty to murder for stabbing the deceased over an earlier altercation was sentenced to 18 years. 
9.	On behalf of the State Ms Patana through a written submission sought a sentence of 16 to 20 years imprisonment. 
It was submitted that the offender had killed a close blood relative by inflicting multiple wounds on the body of the deceased. She also referred to the following cases; State v Ruben Donald (2008) N3941; State v Daniel Walus (2005) N2802 and State v Christopher Dubun (2010) N4109 as guides in sentencing. 
10.	The cited cases consist of decisions in manslaughter cases but are still relevant as guides. 
  
11.	The medical report revealed three slash wounds and a fractured 6th rib on the body.
  
12.	The Pre-Sentence Report (PSR) recommended that the offender is a suitable person for probation on the basis that the offender regretted committing the offence and that hardened criminals were in prison which will not help him, his education will be disrupted, and he cooperated with police investigations.
 
13.	The report also confirms that his family expended K8,000. 00 as assistance in funeral expenses and related costs for the deceased. 

A character reference from the Seventh Day Adventist Church was also attached to the PSR. The document stated that the offender was a member of the church and regularly attended church activities. They also suggested custody under probation.

Law 
14.	The law on Murder and its prescribed penalty is provided under s 300 of the CCA. The relevant parts are in the following terms;

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; or
(b)	…
Penalty: Subject to s 19 imprisonment for life.
15.	The prisoner is facing a sentence for a crime that carries a maximum prescribed penalty of life imprisonment. However, it is a principle of law that the maximum prescribed penalty is reserved for the worst type of offence. (See Goli Golu v the State (1979) SC 172; Ure Hane v State (1984) PNGLR 105).
 
16.	Sentencing is also discretionary pursuant to s 19 of the CCA. In the exercise of discretion, the maximum prescribed penalty can also be imposed.

17.	In the case of The State v Polin Pochalou Lopai [1988-89] PNGLR 48 His Honor Bredmeyer, J. while discussing sentencing principles for a manslaughter case said:

“Every form of punishment takes into account the intention behind the act or omission and the consequences, both the seriousness of the intention and the seriousness of the consequences. . . with consequences the more serious the consequence the greater the punishment”.

18.	The edict by his honor explains succinctly how sentences may be weighed and imposed for cases like the present. Sentences where death was a consequence, it would naturally be high as there is no greater consequence than death. 

19.	In the present case the prisoner, by his actions displayed a strong desire to cause grievous bodily harm, but the consequence was death. The sentence must reflect that.

20.	The paramount consideration for all homicides is premised on the sanctity and value of life. Life is precious. Once life is terminated it cannot be reactivated.

21.	In the case of the State v Sabiu Wari (2011) Unreported Judgment of Mogish J dated 29 March 2011) in a manslaughter case, the prisoner who attacked the deceased with a knife was sentenced to 18 years imprisonment. In that case the Court said that it was compelled to impose a deterrent sentence to reflect the sanctity and value of human life.

22.	The position and attitude of the Courts of recent times have changed in sentences for all homicides. Sentences for murder have increased greatly since the guidelines in Simon Kama v the State (2004) SC 704 and later in Manu Kovi v the State (2005) SC 789. The maximum prescribed penalty for murder has not shifted.  It still stands at life imprisonment.  

23.	Sentences for murder involving deaths from attacks with weapons, are attracting high sentences in view of the sanctity and value of life. The following cases attest to high sentences for murder. 

24.	In the case of Max Java v The State (2002) SC701 the Supreme Court affirmed a sentence of 20 years for Murder on a guilty plea where the prisoner cut the victim on the stomach with a bush knife.

25.	The Supreme Court also in the cases of Joseph Enn v the State [2004] SC 738, Kepa Wanenga v the State [2004] SC 742 and Sakarowa Koe v the State [2004] SC 739 dismissed the appeals against a sentence of 20 years each on guilty pleas to charges of murder. They involved attacks with offensive weapons.

26.	In the case of the State v Jacob Aku Matai [2011] N 4256 the prisoner who pleaded guilty to murder for cutting his in-law with a bush knife was sentenced to 22 years imprisonment. De-facto provocation was present.

27.	In the State v Alois Lagu [2011] N4354 on a guilty plea to murder the offender was sentenced to 20 years imprisonment for stabbing the deceased with a pocketknife.

28.	The cases referred to and those cited by counsels affirm the position of the Courts and the sentencing trend employed for murder.  

Decision

29.	This is a case of a former Juvenile offender who committed murder as an adult in what is analogous to a street fight. The prisoner inhibited a strong desire to do grievous bodily harm, but it turned fatal. His cousin brother died. 

30.	It is a baffling scenario how the parents of young persons could not control their kids from street fights among relatives. 

31.	I can only speculate whether this reflects the next generation of citizens preparing to take their place in our society. It is quite a scarry scenario to fathom the future generations who chose to be involved in such behavior and activities which under normal circumstances would be considered out of bounds for Juveniles.

32.	The factors in mitigation are that the prisoner pleaded guilty to a very serious offence. He is a first-time offender. He expressed some remorse. 

33.	The aggravating factors are that a life was prematurely lost. A dangerous and lethal weapon was used. The number of wounds identified by the Doctor in the medical report reflects repeated wounding. As alluded to earlier, there was a strong desire to do grievous bodily harm. It was a premeditated and gruesome attack. He went to his house to get a knife and attacked upon his return. There was no hesitation considering that the person he was attacking was his cousin brother.   

34.	The Pre- Sentence Report is in his favor. The basis for recommending him as a suitable candidate for probation were that the offender regretted committing the offence, that hardened criminals were in prison which will not help him, his education will be disrupted, and he cooperated with police investigations.
 
35.	The regret exposed and cooperation with police are matters of course after a serious offence was committed. There was nowhere else the offender could turn to. There was nothing else he could do after the death was caused. Those considerations in my view are a natural response out of a guilty mind. 
 
36.	Being with the type of people in prison is a consequence of committing an offence. No offender should expect the prison setting and conditions therein to be the same as home.
 
37.	Legally the prisoner is no longer a juvenile. He committed the offence as an adult when he was a juvenile. He is now over the juvenile age limit.
38.	In the case of Peter Napiri v the State SC137 the Supreme Court held that when persons aged 17 to 19 assume adult responsibility, and when they commit a serious offence, they should be treated accordingly, like adults.
In the case of the State v Julius Ombi (No 2) (2004) N2552 the Court held: 

“The Courts position is that youthful offenders should not receive special treatment unless there are exceptional circumstances which warrant a lesser sentence.”
 
39.	In the present case the prisoner acted like an adult. He repeatedly attacked the deceased with a knife. He shall be treated as an adult in sentencing. It is inappropriate to treat an adult in his former status as a juvenile. 

40.	As to disruption to education it is also a consequence of committing a very serious offence. Concern for his education and his future for that matter never factored in his mind when he resorted to unreserved attacks on his cousin brother.

41.	It is accepted that the prisoner’s family incurred expenses for the deceased funeral. It was a gesture of mending soured relationships to maintain peace and harmony. 

42.	Compensation payments are no substitute for imprisonment. Freedom cannot be purchased after committing a serious crime. It must be earned through how one conducts himself or herself in life.  Despite that the Court in the case of Manu Kovi held that payment of compensation should act as a special mitigating factor. That determination is adopted in the present case. The expenses incurred on the funeral by the relatives of the prisoner shall be deemed 
as compensation and treated as a special mitigating factor. 
 
43.	A character report from the SDA church stated that the prisoner was a member of the church and regularly attended church activities.
 
44.	His persistent stabbing of his cousin brother does not reflect him as a person aligned to a church and the report is disregarded.
  
45.	Ms Peu submitted that this case fell into the second category of the Manu Kovi guidelines. Under that category it was suggested that in a contested or uncontested case, where a weapon was used - there was no strong intention to do grievous bodily harm – where some elements of viciousness were present - a sentence between 16 and 20 years should be imposed.  

46.	That submission is refused. This case fell into the third category of the Manu Kovi guidelines. Under that category it was suggested that in a contested or uncontested case where the aggravating factors involved  pre-planning, there was a vicious attack , there was a strong desire to do grievous bodily harm  with the use of weapons or where  the mitigating factors were reduced in weight or rendered insignificant by the gravity of violence committed, a sentence of 20-30 years imprisonment should be imposed. 

47.	The offence involved violence and was gruesome, with the repeated attacks with a knife in a vengeance attack. There was no justification for the killing. 
48.	There was some pre-planning. The offender went to his house to retrieve the attack weapon before returning to attack the deceased. There was a strong intention to cause grievous bodily harm with the strong force applied and the number of times the offender cut the deceased.

49.	The sanctity of life was completely absent. Despite the gravity of the attack, it is considered appropriate that the common mitigating factors should not be rendered insignificant as he committed the offence as a juvenile. 

50.	It is also considered that the deceased was not an innocent bystander. He drew first blood. Some element of de facto provocation was present. He is entitled to some discount in the mitigating factors referred to which shall be factored in the sentence to be imposed. 

51.	Bearing in mind that the maximum prescribed penalty for murder is life imprisonment, coupled with the sentencing discretion of the Court the head sentence shall be 18 years which is below the lowest penalty suggested in category 03 of the Manu Kovi guidelines. 

52.	Because of his early guilty plea, that his family paid some compensation in the form of assistance in the funeral expenses and that the offence was committed when the prisoner was a juvenile, 05 years shall be suspended.
 
53.	From the balance of 13 years the time in pretrial custody shall be deducted and the prisoner shall serve the balance at CIS Buimo.

54.	Formal Orders:

1.	The prisoner is sentenced to 18 years imprisonment.
2.	Five (05) years shall be suspended. 
3.	From the balance of 13 years the time spent in pre-trial custody shall be deducted. 
4.	The prisoner shall serve the balance of the sentence at CIS Buimo.
____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence