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State v Koip [2021] PGNC 295; N8986 (21 July 2021)

N8986

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1016 OF 2020

THE STATE

V

SENT KOIP

Minj: Salika CJ
2021: 19^th, 20^th, 21^stJuly

PRACTICE AND PROCEDURE – Criminal Law – Charge of murder – Section 300 (1) (b) (ii) of the Criminal Code Act – Councilor involved – Leader took the law into his own hands – 30 years imprisonment appropriate

Cases Cited:

Goli Golu v The State [1979] PNGLR 653.
Manu Kovi v The State (2005) SC789
Simon Kama v The State SC740

Counsel:

Mr F Popeu, for the State
Mr. L Siminji, for the Accused

SENTENCE

21^st July, 2021

1. SALIKA CJ: INTRODUCTION: In this matter I convicted the prisoner after a trial on the charge of murder under S300(1)(b)(ii). After the prisoner had given evidence his counsel informed the court that the State had proved the charge of Murder beyond reasonable doubt. I went on to find the Accused guilty as charged.

Facts

2. This is a case where the prisoner had a number of shops at Kindeng. He was renting one of his shops to another person. On the afternoon of 12 December 2019, a youth Kuwi Jacob from that community had gone to the person who was renting the prisoner’s shop and assaulted him. Later the prisoner was told and he went looking for Kuwi Jacob towards the back road of Kindeng market. He parked his Mazda BT 50 Double Cab Registration No: HAO 981 on the side of the road and he saw the deceased Stenic Poiya and his two male relatives walking towards him. This was about 8:00pm and it was dark. When the deceased and his two male relatives were about 10 to 15 meters away from him he discharged three shots from his unlicensed magnum pistol. One of the bullet shots got Stenic Poiya on his chest which penetrated through his lungs. Stenic fell down and died at about 10:00pm at the Kudjip hospital.

3. The prisoner was charged under S300(1)(b)(ii) of the Criminal Code Act and I convicted him. I now have to consider the appropriate sentence.

Issue

4. Having convicted the prisoner, the next issue is what is the appropriate sentence to impose on him.

The Law

5. The maximum penalty for murder under S300(1)(b)(ii) of the Criminal Code Act (CCA) is imprisonment for life, subject to S19 of the CCA. Maximum penalties are usually reserved for the worst type of cases. See Goli Golu v The State (1979) PNGLR 653.

6. The Supreme Court authority of Manu Kovi v The State (2005) SC789 puts this case on category 3 which attracts sentences of between 20 to 30 years imprisonment. Manu Kovi was decided some 33 years ago. Over time the sentence must increase. Both counsels submitted that the sentence must reflect the crime and the circumstances of the offence. With respect I agree with counsel.

7. Counsel cited Simon Kama v The State SC740. In that case the National Court imposed an imprisonment term of 25 years and Simon Kama appealed that sentence as being excessive. The Supreme Court confirmed the 25 years and ruled that the 25 years was not excessive.

8. The case of murder is serious. It involves taking a life of another human being. It is the second most serious of the homicide cases.

9. Section 19 of the Criminal Code Act has given the court wide powers and discretion to impose a lesser term of punishment than the maximum prescribed.

Personal Particulars

10. The prisoner is 38 years old, married with two wives and has 4 children. The children are 22, 16, 12 and 1 year old. The first and second children attend secondary schools while the third is at primary school and the last one is at home. His father is now deceased and passed on before this offence was committed. He is from Kindeng in the Anglimp Sub-district of Jiwaka Province and is a follower of Nazarene Church faith. He has never had any formal education.

11. The prisoner was engaged in small businesses and has 4 stores all in the vicinity of the Kindeng market.

Allocutus Statement

12. The prisoner said sorry to God to the court. He said he was a leader and a councilor. He also said he has properties to look after. He said his father died in 2019 and he inherited his father’s businesses and now if he is imprisoned there will be no one to look after the businesses. He also added that he has growing children to look after and if imprisoned there is no one to look after them. He asked to pay compensation.

13. In relation to compensation the deceased’s brother and relatives will not accept any form of compensation and have refused outright to accept any form of compensation. In any case this court can only award K5, 000.00 as compensation under the Criminal Law (Compensation) Act. The deceased relatives say that any form of compensation diminishes the value and sanctity of life.

Mitigating Factors

14. The prisoner is a first-time offender and that is the only mitigating factor.

Aggravating Factor

15. The following factors aggravate the crime:

a) The prisoner is a leader being a councilor and took the law into his own hands

b) He used an unlicensed magnum pistol to discharge the shots which killed the victim Stenic Poiya.

c) He was careless in doing what he did in not checking if one of the 3 men approaching him was the youth he was aiming to shoot.

d) He did not resolve his problem like a leader should.

Sentence

16. The prisoner said on his allocutus that he was a leader with a young family and that he has businesses to run. In considering his statement was submitted that the prisoner killed a potential leader in that Stenic Poiya was a final year University of Papua New Guinea Student and could have contributed to the community and the country.

17. I take into account the prisoner’s passionate plea for a lesser punishment. I have had recourse to S19 of the Criminal Code.

18. He took the life of an innocent young final year University Student without asking questions. He did not stop to help the deceased nor did he stop to think if he shot the man he was after. His actions were indeed not that of a real and true leader.

19. I take into account that he is a first-time offender but that factor loses its significance when one considers his careless and selfish actions.

20. Considering all the circumstances of the case I sentence the prisoner to 30 years imprisonment in hard labour. He was in custody for 11 months 2 weeks before being bailed out. That is taken away from 30 years. The balance for the prisoner to serve is 29 years and 2 weeks.
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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused