N9357
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 223 & 224 OF 2020

THE STATE

V

IAN PURI

Baisu:	Toliken J
2020:	13th May, 27th May, 13th August, 10th December

CRIMINAL LAW – Practice and procedure –  Sentence – Murder – Guilty plea – Killing of stepbrother – Aggravating factors –  Use of dangerous weapon – Strong desire to cause grievous bodily harm – Multiple victims - Prisoner a church pastor –  Prevalence  of offence –  Mitigating factors –   Early guilty – First-time offender – Prior good character – Non-legal provocation – Genuine remorse –  Deceased initial aggressor – Killing self-inflicting – Compensation paid – Appropriate sentence – 16 years –  Criminal Code Ch. 262, s 229A (1).
PRACTICE AND PROCEDURE - Sentence – Grievous bodily harm – Guilty pleas - Strong intention to cause harm – Innocent victim – Prevalent offence – Appropriate sentence – 4 years.
PRACTICE AND PROCEDURE – Sentence – Purpose of sentence – Condemnation and deterrence – Sentences to be served currently less time in pretrial/sentence custody – Suspension – Not appropriate due to unfavourable presentence report. 

Cases Cited:

Kesino Apo v The State [1988-89] PNGLR 182
Avia Aihi v The State (No. 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Manu Kovi v The State (2005) SC 789
The State v Bikeh (2020) N8456

The State v Pinaping (2017) N6616
The State v Kais (No.2) (2012) N5178
The State v Sheekiot (2011) N4454 
The State v Konos (2010) N5415 
The State v Wagi (2008) N3543 

Counsel:

J Kesan, for the State
E Wurr and D Pepson, for the Prisoner.

SENTENCE

10th December 2021

1.	 TOLIKEN J:	On 13th May 2021, the State presented two indictments charging the prisoner Ian Puri separately with one count of murder and one count of unlawfully causing grievous bodily harm pursuant to Sections 300(1)(a) and 319 of the Criminal Code respectively.

2.	The prisoner pleaded guilty to both charges and admitted the following supporting facts. The prisoner and John Anis Puri (deceased) are stepbrothers. They are from Kogma Village, Mt Hagen, Western Highlands Province. They live close to each other and to their cousin brother Jaive Hajofa.
  
3.	On 09th August 2019, between 6.00 and 7.00p.m the prisoner and the deceased had an argument over burnt roofing iron sheets belonging to their father and ended up having a fist fight. Bystanders, however, stopped and separated them.

4.	 After a while though, they started fighting again. Only this time the prisoner was armed with a knife. During the fight, he stabbed the deceased in an upward motion with the knife on his belly with the first swing of the knife. 

5.	At this point their cousin brother Jaive Hajofa ran in to stop the prisoner from further stabbing the deceased. The prisoner, however, turned on him and stabbed him also.  Jaive Hajofa fell, but managed to get away from the prisoner, but not before sustaining grievous bodily harm.

6.	The prisoner then continued with his attack on the deceased, further stabbing him twice – first on the left chest and then on his left back fatally wounding him. The deceased died instantly from heavy loss of blood. 

7.	Ms. Wurr of Counsel for the prisoner took no objection to the Court having recourse to the deceased’s Post-Mortem Report and Jaive Hajofa’s medical report and the respective observations there-in when the matter was put to her by the Court.  

8.	External examination of the deceased’s body by Dr. Norman Kiap revealed that the deceased sustained an oblique superficial wound on anterior chest wall, a very deep wound on the left lower posterior chest wall, and an oblique superficial wound around umbilical region. Internal examination found a massive haemothorax or accumulation of blood in the pleural cavity (the space between the lungs and the walls of chest).

9.	Jaive Hajofa’s medical report by Dr. Wilma Bohage recorded the following:

Local examination of the chest revealed a 3cm laceration on the posterior chest along the midline which extended laterally to the right, penetrating the chest cavity. There was no heavy bleeding from the wound. Internally there was reduced air entry into the affected lung base.
Initial management included a 3-way pressure dressing over the wound, pain medication, tetanus prophylaxis and a parenteral antibiotic before taking a plain radiograph of the chest. 
The chest radiography revealed a blunted right costophrenic angle which was evident of a right pleural collection of fluid hence a diagnosis of Right Hemothorax was made and a decision for surgical management to drain the collection was also made.
He then had a thoracostomy procedure which was carried out under local anaesthesia and sterile technique whereby a sterile tube was inserted into the the right pleural cavity to drain the abnormal fluid collection. This immediately drained about 200mls of fresh blood. The primary stab wound was repaired thereafter. The chest tube continued to drain at a slower rate over the next 2 days before ceasing to drain.
A repeat chest radiography after 2 days of thoracostomy, showing no significant collection.”
10.	The chest tube was removed on 12/08/19 and the victim was discharged on antibiotics and painkillers. The victim, however, returned on 16/08/19 complaining of a lot of pain on the site of the initial stab wound. He was treated as an outpatient and put on a further course of painkillers and antibiotics. A review a month later show that he had fully recovered.

11.	The prescribed maximum penalties for crimes of murder and unlawfully causing grievous bodily harm are life and 7 years imprisonment respectively.  Of course, as is trite, the maximum is reserved for the worst instances of offending. Offenders are also served sentences that befit the circumstances of their individual offending. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No. 3) [1982] PNGLR 92). In this case they get served individualized justice.

12.	The prisoner is 40 years old and comes from Kogama village, Hagen Central, Western Highland Province. He is a Pastor with the PNG Bible Church. He comes from a big family. He has 12 half siblings – 5 brothers and 7 sisters. His father is a small businessman and has 5 wives. The prisoner’s mother, a nursing officer, was the third wife. She divorced the father when the prisoner was in Grade 4. She has re-married. The prisoner has no prior convictions and has been in pre-trial/sentence detention for 2 years 4 months and a day since 09th August 2019 when he surrendered to the police.

13.	The prisoner apologised for his offences, firstly to God, the State, and the Court then to his own family. He said he had been a pastor for 20 years and did not expect things to happen as they did. He said he was at home with his family when they attacked the first and second time. They were drunk. He was not expecting the attack as he saw no reason for it. So, when they attacked him the second time, he tried to defend himself, however, things turned out differently. He pleaded for mercy and asked for probation as this is his first offence. 

14.	Mr. Pepson who took over from Ms. Wurr after she was called to the Bench, conceded on behalf of the prisoner that a dangerous weapon was used to commit both offences and that these offences are very prevalent. For the count of murder counsel submitted that this was not a worst offence and would fall within the upper end of Category 1 and the bottom end of Category 2 of the Manu Kovi tariffs thus attracting a sentence between 15 – 16 years. (Manu Kovi v The State (2005) SC 789)

15.	Mr. Pepson submitted that this case is similar to The State v Kais (No.2) (2012) N5178, where the deceased, who was the initial aggressor was killed by the offender, who, like the prisoner in this case, inflicted several injuries on the deceased and exhibited a strong desire to cause grievous bodily harm. I sentenced the offender there to 12 years imprisonment.

16.	Counsel submitted therefore that a sentence of 6 – 10 years, less the pre-sentence detention period, would be appropriate because the prisoner’s mitigating factors outweighed his aggravating factors. 

17.	 For the count of grievous bodily harm, counsel submitted that an appropriate sentence ought to be 1 – 3 years which ought to be served concurrently with that for murder. 

18.	Counsel was critical of the presentence report (PSR) which he said was biased because it did not record that K20,000.00 and 21 pigs were paid as compensation, a fact subsequently confirmed by village leaders in a separate signed statement. Furthermore, the views of neutral councillors, Village Magistrates and church leaders were not captured. I tend to agree with counsel’s sentiments here.

19.	The PSR is indeed not favourable to the prisoner. The author was of the view that since the victim’s relatives want a non-custodial sentence, he may pose a danger to the community and his own safety may also not be guaranteed.

20.	 Mr. Kesan on the other hand conceded that this is not a worst offence but submitted that the circumstances of the prisoner’s offending bring the case squarely within category 2 of the Manu Kovi tariffs which should command a sentence between 16 – 20 years for the count of murder.

21.	 Counsel cited a couple of cases to support his contention. These are The State v Pinaping (2017) N6616 where the offender was sentenced to 21 years after the court assessed the case as falling under Category 2 of the tariffs, and The State v Bikeh (2020) N8456 where the two accused persons pleaded guilty to one count of murder and one count of causing grievous bodily harm. The offenders were sentenced to 20 years for murder after the court assessed the case as falling under Category 3 of Manu Kovi. They were sentenced to 4 years for the count of grievous bodily harm. I will return to these matters presently in the judgment.

22.	For the count of grievous bodily harm counsel asked for a sentence of 3 – 4 years as he was of the view that the circumstances of this case were similar to those in The State v Konos (2010) N5415 (3 years) and The State v Wagi (2008) N3543 (4 years). And since the offences were committed at the same time the sentences should run concurrently. The Court may in its discretion consider suspension. 

23.	The following factors are considered as mitigating the prisoner’s offending:

•	The prisoner pleaded guilty to the offences.
•	He is a first-time offender.
•	He was of prior good character.
•	He co-operated with the police by voluntarily turning himself in and making admissions in his record of interview.
•	He expressed genuine remorse.
•	Compensation comprising of K20,000.00 and 21 pigs were paid by the prisoner’s maternal relatives.
•	The killing was self-inflicting as the deceased and victims Jaive Hajofa were very close relatives – half brother and cousin brother. (Kesino Apo v The State [1988-89] PNGLR 182, followed)
•	The offender was provoked in the non-legal sense when the deceased attacked him without cause not once but twice.
•	The prisoner acted alone.
•	The deceased was the initial aggressor.

24.	Against the prisoner are the following aggravating factors:

•	He used a dangerous weapon – a hunting knife.
•	He exhibited a strong desire to cause grievous bodily harm judging from the nature of injuries separately inflicted on the deceased and the survivor.
•	He inflicted multiple injuries on the deceased and the survivor.
•	He attacked vulnerable and vital parts of his victims’ bodies.
•	The attack on the survivor Jaive Hajofa was unprovoked.
•	He was a church pastor.
•	 Both offences are very prevalent in this province as well as around the country.

25.	The circumstances of this case do bear some similarities with those in The State v Bikeh (supra). In Bikeh, the two accuseds, Kenunga Bikeh and Bikeh Kenunga (father and son) had a long-standing dispute over an oil palm block with the Kenunga’s brothers Bomai Bikeh (deceased) and Thomas Kenunga (survivor). They had an argument which escalated into a fight during which the two offenders attacked Bomai Kenunga (deceased) and Thomas Kenunga with bush knives inflicting multiple injuries to their bodies. Bomai Kenunga died from massive blood loss from the multiple deep wounds he sustained to his body, and Thomas Kenunga suffered serious injuries to his head and face. The court assessed the circumstances surrounding the killing of Bomai Kenunga as falling under Category 3 of the Manu Kovi tariff and sentenced the offenders to 20 years for murder and 4 years for causing grievous bodily harm.

26.	The State v Pinapang (supra), is not entirely on all fours with the instant case but is cited for comparison purposes only. There the offender, aged 20 years at the time of the offence, had an argument with his adopted mother in a bush location and used a bush knife to cut her on the neck. It was a severe wound and she died instantly. He pleaded guilty to murder. The court there rejected the defence’s submission that the case fell under Category 2 of the Manu Kovi tariffs. It agreed with the State that it fell under Category 3. It held that the starting point for sentencing for this sort of murder (special aggravating factors, mitigating factors reduced in weight or rendered insignificant by gravity of offence, vicious attack, strong desire to do grievous bodily harm, offensive weapon used) is 20 to 30 years imprisonment.

27.	Even though the offender had mitigating factors such as that he was the sole attacker, high level of cooperation with the Police, early admissions, pleaded guilty very early, was a first-time offender, difficult family upbringing, and had expressed remorse, these were not sufficient to warrant a sentence below the starting point. This was because of the aggravating factors which included the use of lethal weapon, brutal killing and killing of a defenceless, harmless and an entirely innocent person. The court therefore imposed a sentence of 21 years, none of which was suspended.

28.	The case of The State v Kais (No.2) (supra) also has some similarities with the instant case. In both cases the victims were the aggressors. Kais got 12 years for his crime. 

29.	In the instant case, I agree with both counsel that the prisoner’s offences are not the worst instances of murder and grievous bodily harm.

30.	For the count of murder, I agree with Mr. Kesan, that the circumstances indeed bring it under Category 2 of Manu Kovi because there was use of a dangerous weapon and a strong desire to cause grievous bodily harm. Because it is not necessarily a worst instance of offending, I would fix a starting point of 17 years which is the mid-range of Category 2. I reject Mr. Pepson invitation to impose a sentence similar to that imposed in Kais.

31.	The aggravating and mitigating factors appear to me to balance out. However, strong, and stiff enough sentences ought to be imposed to exact, not only punishment for the prisoner but also condemnation for his behaviour, and lack of respect for the sanctity of life which is not his to take.

32.	The prisoner is a pastor and knows or ought to know God’s view on the sacredness of life. He, of all people, knows the penalty of taking of a life, whether wilfully or otherwise under the Mosaic Law. Fortunately, that does not apply in the Christian Church by the grace of Jesus’ sacrifice, but governments and States (like ours) have decreed the death penalty for wilful murder and life imprisonment for murder and manslaughter. This reflects the secular States’ view on the sanctity of life. Therefore, anyone who takes another person’s life must expect to be punished and served his just dessert. 

33.	And as the Supreme Court and this Court has said repeatedly, compensation, irrespective of how big it may be, is only a mitigating factor. But it should and must not be treated as a special mitigating factor at that. Most importantly, it does not exonerate an offender from the legal consequences of his crime.

34.	In the circumstances I am of the view that an appropriate head sentence ought to be 16 years imprisonment. I therefore sentence the prisoner to 16 years imprisonment.

35.	For the count of causing grievous bodily harm, I shall follow the precedence set in The State v Konos (supra) and The State v Sheekiot (2011) N4454 and set the starting point at 3 ½ years. What then should be appropriate head sentences?

36.	The attack on the victim here was totally unnecessary. It appears from the depositions and from the agreed facts that the victim came in to break off the fight between his cousins, the prisoner and the deceased. He was an innocent man and the attack on him was totally unprovoked. For his effort he nearly lost his life as well. The wound he sustained penetrated the pleural cavity and had it not been for the quick action and professionalism of doctors, the result would have been entirely different for the survivor.

37.	The easy use and resort to dangerous weapons to settle disputes in this society is so pervasive that it appears to be second nature. Offenders like the prisoner who resort to this type of behaviour must be punished with sufficiently long sentences for the purposes of condemning their behaviour and to deter them as well.

38.	A sentence of 4 years is in my view appropriate. I therefore sentence the prisoner to 4 years imprisonment.

39.	The total sentence for the prisoner is 20 years imprisonment. Notwithstanding that the victims were different, the offences were committed at the same time, hence, the sentences ought to run concurrently. The prisoner will therefore serve a total of 16 years only, less the 2 years 4 months and 1 day he had been in pretrial/sentence custody.

40.	The prisoner’s PSR is not favourable hence none of his resultant sentence shall be suspended. He shall serve his sentence at Baisu Corrective Institution. 

41.	The sentence and orders of the Court are therefore:

(1)	For the count of murder, the prisoner is sentenced to 16 years imprisonment.

(2)	For the Count of causing grievous bodily harm, the prisoner is sentenced to 4 years imprisonment.

(3)	The total sentences of 20 years shall run concurrently. The prisoner shall therefore serve a total of 16 years from which the pretrial/sentence detention period of 2 years, 4 months and 1 day shall be deducted.

(4)	The prisoner shall serve the balance of his sentence at Baisu Corrective Institution.

(5)	The prisoner has the right to appeal against his sentences to the Supreme Court within 40 days if he is aggrieved.

Ordered accordingly.
________________________________________________________________
P Kaluwin, Public Prosecutor: Lawyer for the State	
L B Mamu, Public Solicitor: Lawyer for the Prisoner