N9929
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 50 0F 2021

THE STATE

V

VICTOR AUSI
Accused
(No 2)

Daru: Sambua, A J
2021:   19th & 24th November
CRIMINAL LAW – murder – convicted after a trial -no prior convictions- use of tree branch as weapon to attack deceased- deceased died of injury to neck and skull base- appropriate penalty- 12 years considered appropriate.
Cases Cited:
Goli Golu v The State [1979] PNGLR 653
John Kalabus v State [1988] PNGLR
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State [2005] SC789
State v Pauguri [2011] PGNC 159; N4439
Rex Lialu v The State [1990] PNGLR 487
The State v Nancy Kumie [2018] PGNC 416; N7532
The State v Bonsu (No.2) [2014] PGNC 312; N557
State v John Banuk (No.2) [2014] N5757 
State v Rex Lialu [1988-89] PNGLR 449
Counsel
Mr S. Kuku, for the State
Mr I. Paelaea, for the Accused.

DECISION ON SENTENCE

24th November, 2021

1.	SAMBUA, AJ: The prisoner Victor Ausi was found guilty and convicted on a charge of murder laid pursuant to section 300(1)(a) of the Criminal Code after a trial.

The history of the case

2.	The State has alleged that between 9.00 pm and 10.00 pm on the night of  4th January 2020 the prisoner, Victor Ausi, was with his friends (Police men and Women sons) drinking alcohol. They later ended up at Gamea Police Barracks, where the police officers with their families were having a party. After the party was over, the prisoner was seen assisting the ladies with the cleaning up, when he heard loud noises coming from the field towards Daru Secondary School and heard people calling “stilman,stilman, holim em” so the prisoner and his friends ran towards the direction of the commotion.

3.	When he arrived there, he saw the injured person John Imaga who was calling out to his relatives for help. That was when the deceased Bredon Kou came with a long black handle tramontina bush knife and four other boys. The prisoner and his friends fled the scene and met up again at Kally Pamuan’s house.

4.	The deceased Brandon Kou followed the prisoner and his friends to Kally Pamuan’s house and demanded to know who assaulted his in-law. Whilst he was demanding to know who assaulted his in law, he was punched by one Ian Bidogo and held down on the ground and the deceased released the knife he was armed with. While still struggling with Ian Bidogo, the prisoner came from behind with a thick y-shaped tree branch and hit the deceased on the back of his head using both hands which resulted in his neck bone broken that led to his death.

5.	Section 300(1) states:
Subject to 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 intends to do grievous bodily harm to the person killed or to some other person,
(b)	………..
(c)	……….
Penalty: Subject to Section 19, imprisonment for life

The Autopsy Report

6.	An autopsy was conducted by Dr Benny Kombuk who was assisted by Dr Timothy Danaya on the 30th of January 2020 established that the cause of death was attributed to Brain Stem injury due to cervical spine fracture due to Blunt injury to base of the skull and the neck and cervical spine injury. In its simplest form, the deceased died as a result of the neck injury, that he suffered during the attack on the night of the 4th of January 2020 at Gamea Police Barracks in Daru town, Daru Island. There was no other injury found on the deceased during the autopsy.

Antecedent Report

7.	The prisoner Victor Ausi is aged 25 years old and comes from Sepe village, South Fly District in Western Province and lives a subsistence life. He is married with an infant female child aged one year and three months old. The wife also lives a subsistence life.

8.	He is the 3rd born out of 4 siblings, consisting of 3 males and 1 female who are young adults now. Both his parents are alive.

9.	In terms of education, the prisoner completed Grade 10 at Daru Secondary School. He further obtained a Grade 12 certificate through Flexible and Open Distance Education (FODE) here in Daru, Western Province.

Factors of Mitigation and Aggravation

10.	The Mitigation Factors were:

i.	He is a first-time offender
ii.	Has apologized to court and the family of the victim. He was remorseful and is sorry for what he did.
iii.	There was some compensation made to the family of deceased and the family of the prisoner had given an undertaking to meet the demand of the deceased relatives.
iv.	He was raised in a Christian background and is a member of the local Seventh Day Adventist Church.

11.	The Aggravating Factors were:

i.	The prisoner was convicted after a trial
ii.	The viciousness and force used in the attack
iii.	An offensive weapon was used, namely a ‘Y’ shaped piece of tree branch
iv.	It was applied with extreme force to back of the neck which is a vital part of the body
v.	The impact broke the neck and the stem base fracture
vi.	There was intent to cause grievous bodily harm
vii.	The victim was a known person
viii.	The deceased was unarmed at that time
ix.	The offence took place in the front of the residence at the Police Barracks
x.	A life was lost
xi.	Alcohol related killing

Statement in Allocatus

12.	The prisoner read a prepared statement in allocutus when invited to address court on what type of penalty the court should impose on him. This was what he read out from his written statement in allocutus:

Your Honour,

i.	I am now married with one (1) child, nine (9) months old
ii.	I am a member of the Seventh Day Adventist Church
iii.	My level of education is Grade Ten (10) which I completed in 2011 at Daru Secondary School
iv.	I am unemployed and currently residing with my parents in Daru.
v.	My father, Bira Ausi is a Police Senior Sergeant who has been listed for retrenchment anytime from now. My father Bira Ausi has developed health problems. Dr. Timothy Danaya has recommended for immediate retrenchment.
vi.	I am the third born in a family of four, my elder brother is married and intends to stay with wife’s family.
vii.	My second brother is in the PNG Defence force and is based at Murray Barracks, Port Moresby.
viii.	My sister intends to travel to Vanimo, West Sepik with her husband
ix.	I am the only one to stay close to my parents
x.	Late Brendon Kou was not my enemy, I knew him well. We have played basketball together. I also did not have anything against late Brendon Kou’s family. I also did not have anything against Brendon Kou. I carried Brendon with injuries to the ambulance, thinking that he would not die.
xi.	The leaders of Bamu and Gogodala Tribe petitioned the then Provincial Police Commander, Chief Inspector Brian Kombe with eight (8) demand.

Demand No. 5

xii.	The amount of K5,000.00 in cash was given to late Brendon’s family for funeral expenses by policemen and women including, my father, Senior Sergeant Bira Ausi.
xiii.	I was with the other children when death occurred in the Barracks. These other children also hit the decease Brendon Kou. I did not hit the deceased alone, there were eight other youths that got involved. The National Court Judgement made an order for the eight to be arrested and be charged, but the parents sent their children away to avoid the arrest and prosecution. These are Policemen’s children and the children they looked after.

Demand No. 7

xiv.	Bel Kol money of One Hundred Thousand Kina (100,000.00) to be paid by the Policemen and Women. For this demand, my father Senior Sergeant Bira Ausi is willing to pay on condition that, the court reduces the sentence. The money will be paid from my father’s retirement from Nambawan Super.
xv.	I have been in custody since January 5th, 2020. It is my prayer that your honour will give me a suspended sentence.
xvi.	I want to say sorry to;
a.	Mr Walter Kou and Family
b.	Mr. Lifi Daipe and Family
c.	People of Bamu Tribe
d.	People of Gogodala Tribe

For my involvement
Victor Bira Ausi

Submissions by Counsel

13.	Mr Paelaea on behalf of the prisoner Victor Ausi submitted that the prisoner surrendered to Police on 05/01/2020 and was detained on the same day. He has since been in custody till present.

14.	He submitted that the maximum penalty applicable is life imprisonment as per the penalty provision of section 300(1)(a) of the Criminal Code however is reserved for the worst kind of cases and referred to the Supreme Court case of Goli Golu v The State [1979] PNGLR 653.

15.	He also submitted that the Supreme Court in Manu Kovi v The State [2005] PGSC 34; SC789, set out the sentencing trend for homicide cases prescribing the various circumstances with the respective penalties. This is a guide, and the court still has discretion under section 19 of the Criminal Code to impose a term of years that is appropriate to the circumstances of each case.

16.	He submitted further that the instant case falls under category 2 of the Manu Kovi case attracting a penalty range from 16-20 years. This is only a guide, and the courts should not be restricted to imposing sentences either less than 16 years or more than 20 years depending on the merits of each case.

17.	In support of this argument, he referred to a decision by Salika DCJ (as he then was) in State v Pauguri [2011] PG NC 159; N4439, where his Honour Salika, DCJ, after discussing the sentence trend in Manu Koivi case and the wide discretionary powers as provided under section 19 of the Criminal Code stated that case law authorities should not bind the courts from exercising its powers under the statue law.

18.	Finally, he submitted for a sentence between the range of 15 to 18 years imprisonment term and because of its peculiar circumstance of this case he submitted for a partial suspension of the sentence.

19.	Mr Kuku on behalf of the State submitted that the issue for the court is what would be appropriate sentence to be imposed on the prisoner. It is trite law that the maximum penalty should be reserved for the most serious instances of an offence: Goli Glou v The State [1979] PNGLR 653.

20.	In his submission he refers to the Supreme Court case of Lawrence Simbe v The State [1994] PNGLR 38 where it was held that each case is determined on its own peculiar facts and circumstances and furthermore, the Court has a wide discretion under section 19 of the Criminal Code Act in determining the proper sentence

21.	He also refers to the Supreme Court case of Rex Lialu v The State [1990] PNGLR 487 the Supreme Court (per Kapi DCJ) held that:

“This exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant consideration. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one case. The reason is clear, and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles”.

22.	He submitted that this case falls in category two and three of the sentencing tariffs in Manu Koivi’s case. The fact that the circumstance of this case establishes that a ‘Y’ shaped tree branch was used to hit the deceased on the back of his neck without him knowing is so aggravating.

23.	Mr Kuku also referred to two cases for purposes of comparability of sentences. And this cases are:

a.	The State v Nancy Kumie [2018] PGNC 416 N 7532: NUMAPO, AJ

The prisoner pleaded guilty to one count of Murder, the prisoner was on her way to work when she saw the deceased. She picked up a piece of wood and hit the deceased on her head and body. The prisoner intended to cause grievous bodily harm on the deceased however the next day the deceased died. The prisoner was sentenced to 12 years less the time spent in custody awaiting trial.

b.	The State v Bonsu (No.2) [2014] PGNC 312; N557:  GEITA, AJ

In this case the accused on the 4th of April 2014 between the hours of 9:00am and 10:00am at Ambunti Station inflicted two blows to the neck and the head of the deceased using a 4 x 2 timber killing him instantly.

His Honour categorized the case to be in the third category which a term between 20 to 30 years is warranted. The prisoner was sentenced to 20 years IHL, less the pre-trial custodial period.

24.	He submitted that this case falls in the second category of murder which attract a term of 16-20 years imprisonment leaning towards category three which attracts a term of 20 to 30 years. He submitted that, this case is a serious case, and this calls for a strict sentence to be imposed. The prisoner’s actions do clearly show disregard for life as it was taken in barbaric manner. The blow from the prisoner nearly broke the deceased neckbone at base of the skull which caused Brain stem injury which is the “control tower” of the whole human anatomy. Strict punitive measures must be imposed to cause deterrence to future would be offenders who tend to forget that life is a gift from God, and we have should value it.

Issue

25.	The issue is what should be an appropriate penalty in the circumstances of this case.

26.	I have heard submissions from both counsels and am grateful for their respective submissions that had greatly assisted me in arriving at penalty I am about to impose on the prisoner.

27.	The prisoner was convicted after a trial on a charge of murder under section 300(1) (a) of the Criminal Code which carries a penalty of life imprisonment however courts can impose sentences other than the maximum penalty by authority of section 19 of the Criminal Code.

28.	The Supreme Court in Goli Golu v The State [1979] PNGLR 653 and John Kalabus v State [1988] PNGLR 193 stated that the maximum penalty should be reserved for the worst type of cases.

29.	The Supreme Court in Lawrence Simbe v The State [1994] PNGLR 38, held that each case is to be determined on its own peculiar facts and circumstances.

30.	This is an alcohol related killing that happened in a police barracks. Recently in Popondetta I dealt with two cases resulting from alcohol consumption by young men.

31.	The first case is the case of State v Tau Maiasa, CR  569 of 2018. The prisoner was charged with grievous bodily harm under section 319 of the Criminal Code. He pleaded guilty to the charge and was convicted and sentenced to three years custodial sentence with no suspension. It was alcohol related.  In sentencing the prisoner, I said:

“Alcohol consumption is a common occurrence these days where there are public gatherings, be it a sporting activity or any other public gatherings which usually leads to confrontations resulting in serious consequences like bodily injuries and even death. Fortunately for the victim, that he lost his four (4) fingers otherwise it could have been fatal….
……consumption of alcohol leads to social evils and young people do not stop to think of the consequences their actions will bring.”
32.	The second case is a case of State v Robert Urevo, CR 1009 of 2021. The prisoner pleaded guilty to a manslaughter charge and was convicted and sentenced to 10 years in hard labour. In that case I said:

“Alcohol consumption by young people like the prisoner in this case is common in this day and age, either in public gathering or in private gatherings…

…. a life has been lost because of alcohol consumption by young people. In my view, when young people consume alcohol, it fuels itchiness to cause trouble which result in confrontations and injuries that sometimes lead to fatalities”.

33.	This case is no exception, the killing of a young life who was still attending Daru Secondary School, was alcohol related and his life was taken prematurely in a cowardly fashion by the prisoner when the deceased was already disarmed. If alcohol was not consumed that night of the 4th of January 2020, this heinous crime would not have been committed in such a barbaric fashion with no regard for human life. Such behaviours and actions should be met with a strongest punitive sanction.

34.	In this case the prisoner was drinking alcohol with his friends who were all Policemen and Policewomen’s sons at Gamea Police Barracks in Daru town, Daru Island on the night of the 4th of January 2020. Apparently, it appears that the prisoner is the only one charged for the group’s collective action(s) on the night of the 4th of January 2020.

35.	I endorse both counsels’ submission that this case falls into category 2 of the much-celebrated case of Manu Kovi v The State. The sentencing range suggested in category 2 is a sentence between 16 to 20 years. Hence will consider a sentence somewhere between 16 and 20 years however, I am not bound to consider a sentence within that range of sentence as per the decision by Salika DCJ (as he then was) in State v Pauguri [2011] PG NC 159; N4439, whereby His Honour, after discussing the sentencing trend in Manu Kovi case and the wide discretionary powers provided under section 19 of the Criminal Code, stated that case law authorities should not bind the courts from exercising its powers under the statue law.

36.	In this case a thick y-shaped half a metre long tree branch was used by the prisoner to hit the deceased on the back of his neck just below the skull resulting in the neck bone being broken that caused brain stem injury that led to the death of the deceased. I find that there was a strong desire to cause grievous bodily harm.

37.	I have considered his statement in allocutus for a suspended sentence. However, the prisoner was found guilty and convicted after a trial on a second most serious homicide charge of murder under section 300(1) (a) of the Criminal Code which carries a maximum penalty of life imprisonment. Thus, his request for a suspended sentence will not be considered. Strict punitive measures must be imposed to cause deterrence to future would be offenders who tend to forget that life is a gift from God, and we should value it. A custodial sentence is considered appropriate in the circumstances of this case.

38.	In the case of State v John Banuk (No.2) [2014] N5757 (18 August 2014), a Kokopo decision by Lenalia, J (as he then was) stated:

“26. Unlawful taking of another person's life by vicious means is very serious and as such offenders must be appropriately punished depending on whatever mitigations and aggravations that might be considered relevant in each case. The basic principle in homicide cases is that the sanctity and value of a human life is very precious and values more than any wealth the world can offer and as such, it must be given prominence and ought to be protected at all costs by the Courts. That is why the Parliament fixed the maximum penalty of life imprisonment for the offence of manslaughter.
44. Crimes of violence and related killings of innocent people are too prevalent throughout the country and as such deterrent sentences must be considered to deter offenders committing such offences. All communities in this country are experiencing a high level of violent crimes affecting our country's quest for peace and harmonious progression of solving disputes in more responsible, diplomatic and amicable manner as provided for by the law.
A life has been lost forever. No money, remorse or compensation will assist to resurrect the victim's life”.
39.	I have taken note and considered his statement in allocutus regarding demand No 7 by the deceased’s tribesmen for a Bel Kol money of One Hundred Thousand Kina (100,000.00) to be paid by the Policemen and Policewomen. He stated that for this demand, his father Senior Sergeant Bira Ausi is willing to pay on condition that, the court reduces the sentence, and the money will be paid from his father’s retirement benefit from Nambawan Super.

40.	Let me state at the outset that his father has not retired yet and the retirement payment is yet to be paid to him and is not immediately available to be paid as Bel Kol money or compensation to the deceased’s people. Even so, that money is for his father’s benefit to enjoy the fruits of his labour for service to the State and the people of Papua New Guinea as Policeman. Why should his retirement benefit be paid as Bel Kol money or compensation for a crime he did not commit or a party to?

41.	In the case of State v Rex Lialu [1988-89] PNGLR 449, His Honour Amet, J (as he then was) stated:
“ I want also to say something about customary compensation payments, their effect and the perceived intentions behind their payment. It is an honourable exercise and exchange to restore peace and harmony between the relatives of the parties involved. It is also taken into account as mitigation if the victim and/or the relatives consider it just, where death has or has not resulted. But it can never replace the punishment of the law of the land which stipulates the conduct to be against the law. The punishment will be balanced, taking into account this as well as the other principles earlier discussed and antecedent particulars.
.... compensation, however large or small, cannot exonerate the offender from criminal liability. Nor do I think that sentence will or should be reduced relative to the size of the compensation, such that it can be thought that the larger the compensation the greater the reduction in sentence should be. This cannot be the effect of compensation. If it is a genuine method of restoring peace and harmony by custom or tradition and whatever form and size it takes, it should not now be extended to obtain total exculpation of the offender. The natural flow-on effect of the acceptance of such a belief is obvious and would lead to the rich believing they can buy their way out of criminal responsibility, and the less rich feeling aggrieved if they do not receive the same treatment.”
42.	The above statement by Amet, J In the case of State v Rex Lialu [1988-89] PNGLR 449, is relevant and applicable to this case and I adopt it in this judgment. Compensation will not restore human life once it’s been lost in a criminal enterprise. The relatives may enjoy the payment of compensation, but the young man’s life will not be brought back to life whereby he will continue on and complete his education and get a job and enjoy the precious life given by the creator to its fullest.

43.	I have considered sentencing the prisoner to a sentence between 16 and 20 years but as I have alluded to above the prisoner who is a son of a Policeman was drinking with his brothers, the sons of other Policemen and Policewomen who reside at Gamea Police Barracks, Daru town, Daru Island.

44.	I found from the facts that a Policeman’s son had wanted to steal a mobile phone handset from the deceased’s relative that result in the prisoner killing the deceased. Therefore, it is not fair that the prisoner should be the only one punished for a crime he did not start and therefore have considered that the sentence I impose will not be a sentence in category 2 of the Manu Kovi case.

45.	After taking into consideration all relevant factors on sentencing such as his personal antecedents, his statement in allocutus and submission by counsel, I consider that a sentence of 12 years is appropriate in the circumstances of this case.

Order

46.  The Court orders that: 

1. Prisoner is sentenced to 12 years IHL.
2. Pre – trial custody to be deducted

3. To serve the balance

4. Since the CS facility in Daru has been closed by the Health Department on grounds that it is unfit for human occupation, I recommend that the prisoner be transferred to either Ningerum CS or Bomana CS in Port Moresby to serve his sentence there and once the CS facility in Daru is rehabilitated to accommodate human habitants, the prisoner is to be repatriated back to Daru to serve out or complete his prison term.

5. I recommend that the PPC Western Province, the Daru Police Station Commander and the OIC CID- Daru to immediately commence investigations and arrest the sons of Policemen and Policewomen who were drinking with the prisoner on the night of the 4th of January 2020 and be brought to court and be dealt with according to law.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused