N9541

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 911 & 906 OF 2021

BETWEEN:
THE STATE

AND:
HATSON CHARLSE

AND:
TOBBY FREDDY

Maprik:  Rei, AJ
2022:  7th, 9th, 10th, 16th & 21st March

CRIMINAL LAW – Practise and Procedure - Plea of guilty – murder – village setup – customary ceremony – murder in public – 8 years and 12 years respectfully – compensation of K2,500.00 each to be paid – part of sentences suspended.

Cases Cited:
Papua New Guinean Cases

Kovi -v- The State [2005] PGSC 34; SC789 
Passingan -v- Beaton [1971-72] PNGLR 206
The State -v- Melchior Gumbuli [2021] PGNC 360; N8962 

Overseas Cases

R -v- Taggart (1923) 179 AppR 132
Burbury CJ in R -v- Mither and Rogers [1982] Tas SR 35
Lakey -v- Sanderson [1959] T4sSR 17

Legislation:

Section 300(1) of the Criminal Code
Section 19 of the Criminal Code
Section 2 Criminal Law (Compensation) Act
Section 13 & 14 Probation (Amendment) Act	

Counsel:		

Mr. George Korei, for the State
Mr. Nasson Katosingkalara, for the Defence

21st March, 2022

1.	REI AJ - The accused were jointly indicted under Section 300(1) of the Criminal Code for causing the death of the deceased:  Ariel Gai on the 14th of December 2019 at Satniam Village, Ambunti-Drekikir District, East Sepik Province.

2.	The brief facts are that the accused Hatson Charlse lost or misplaced his mobile telephone and was looking for it.  He was in possession of a dangerous weapon a bush knife which he wielded in public during the time he was looking for his telephone.

3.	The incident happened in Satniam Village during which a customary ceremony was hosted in which people brought food to be shared amongst themselves.

4.	The deceased Ariel Gai saw the accused wielding the bush knife and he tried to stop him from causing harm to other people who were then gathered in Satniam Village for the occasion.  In the process, the accused Tobby Freddy struck the deceased on his right arm.

5.	The accused Tobby Freddy assisted the accused Hatson Charlse by repeatedly cutting the deceased with the use of a bush knife on the right hip (back) and other parts of his body.

6,	The deceased was carried to the Kombot Aid Post by foot which is a 4 hour walk by foot who died at 4:00 am on 15th December 2019.

ARRAIGNMENT

7.	The charge of murder laid under Section 300(1) of the Criminal Code as well as the brief facts were read to both Hatson Charlse and Tobby Freddy individually. 

8.	Both accused persons entered pleas of guilty.

9.	Mr. Nasson Katosingkalara appearing for the accused persons submitted that the guilty pleas were consistent with his instructions.

10.	Both accused persons were found guilty of the charge of murder under S.300(1) of the Criminal Code.

ANTECEDENT

11.	Both prisoners have no prior convictions.

ALLOCUTUS

12.	Hudson Charlse - I am sorry to the Court, I am sorry to the Lawyers for the State and Public Solicitor, the family of the deceased and I am sorry to my family for what I have done brought shame to them and put them in an awkward situation.  	This is my first time to appear in Court and I seek Court to have mercy on me and place me on probation.

Tobby Freddy - I am sorry to the Court, I am sorry to the Lawyers for the State and Public Solicitor, the family of the deceased and I am sorry to my family for what I have done brought shame to them and put them in an awkward situation.  This is my first time to appear in Court and I seek Court to have mercy on me and place me on probation.

MITIGATING FACTORS

13.	These mitigating factor for both prisoners are:

i.	pleaded guilty to the charge
ii.	first time offenders
iii.	youthful offenders
iv.	no pre-planning
v.	expressed remorse to deceased and his family.
	
AGGREVATING FACTORS

14.	The aggravating factors against the prisoners are:

(a)	death and loss of life
(b)	 use of offensive weapons namely a 1 meter bush knife and grass knife
(c)	the prisoners were intoxicated with homebrew (Steam) which is illegal in PNG by Law
(d)	the offence of homicide in the country caused because of homebrew consumption is prevalent in the country 

PRE-SENTENCE REPORT

15.	A Pre-Sentence Report (“PSR”) was compiled by Moses Galus, Probation Officer and filed on 15th March 2022 which is provided under Section 13 & 14 of Probation (Amendment) Act.

16.	The Probation Officer’s PSR does not speak well for both accused as the relatives want to see that both be imprisoned since the deceased was youthful person who was at threshold of progress further in his studies having been selected to undertake further studies in Port Moresby.

DECISION ON SENTENCE

17.	This is a murder case involving the use of, yet again, bush knife and grass knife in Maprik, East Sepik Province, as lethal weapons.

18.	The deceased was first struck by the prisoner Tobby Freddy with the use of a grass knife and, after the deceased fell to the ground, the prisoner Hatson Charlse hit him with a bush knife at vulnerable part of his body.

19.	I note both prisoners were under the influence of illicit drugs, home brew, which is commonly referred to as “yawa” by the local people.  It was brought to the prisoners by the deceased himself who was also the ‘brewer’.

20.	The consumption of home brew or “yawa” surely contributed to the whole incident which resulted in the death of the deceased Ariel Gai.

21.	Both prisoners look youthful and have a lot of future ahead of them.  The prisoner Hatson Charlse is 19 years of age.  The prisoner Tobby Freddy is 20 years of age.  They are not middle or past middle age people.  Both are first time offenders.

22.	The case of Kovi -v- The State [2005] PGSC 34; SC789 (31st May 2005) has set down the sentencing tariffs in murder cases.  Although the decision in that case maybe somewhat outdated, at least it provides a guide to the Court in determining sentences in murder cases.  In that case the Supreme Court set out 4 categories under which a sentence can be imposed.  These are:

CATEGORY	WILFUL MURDER	
CATEGORY 1	-15 – 20 years	
Plea
- Ordinary cases
- Mitigating factors with no aggravating factors.
	-  No weapons used
- Little or no pre-meditation or pre- planning
-  Minimum force used.
-  Absence of strong intent to kill.	
CATEGORY 2	- 20 – 30 years	
Trial or Plea
- Mitigating factors with aggravating factors	-	Pre-planned.  Vicious attack.
-	Weapon used
-	Strong desire to kill
	
CATEGORY 3	-	Life Imprisonment -	
Trial or plea
-	Special Aggravating factors
- Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	-	Brutal killing.  Killing in cold blood
-  Killing of innocent, defenceless or harmless person.
-  Dangerous or offensive weapons    used.
-  Killing accompanied by other serious offence. Victim young or old.
-	Pre-planned and pre-meditated.
-	Strong desire to kill.	

CATEGORY 4	- DEATH -	
WORST CASE – Trial or Plea
- Special aggravating factors.
- No extenuating circumstances.
- No mitigating factors or mitigating factors rendered completely
   insignificant by gravity of offence.		

23.	Both Counsels agree that this case falls within Category 2 of the sentencing tariff in Manu Koivi -v- The State case which has sentence range of 20 to 30 years.

24.	The prisoners in the case of Manu Koivi -v- The State was an adult matured person and not a youthful offender and the sentences categorized there are for adult prisoners.

25.	Considering that the prisoners are both first time offenders, that they have pleaded guilty to the charge thereby saving costs and are youthful offenders an appropriate light sentence be imposed so that it is not a crushing sentence.

26.	Being youthful offenders, the Court is mindful of the rehabilitation of the prisoners.  In Passingan -v- Beaton [1971-72] PNGLR 206, Raine J said (at page 209):

“To the extent that is possible, young first offenders should not be sent to gaol…..  The late Lord Goddard went so far as to say that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility.  One of Lord Goddard’s predecessors in the office of Lord Chief Justice of England, Lord Hewart, said in R v Taggart (1923) 17 G App R 132, “It is not practicable, and if practicable it would not be desirable to lay down a general rule, but there are many cases in which it is worth while to take some risk, but there are many cases in which it is worth while to take some risk in order to save a young man or a young woman from prison and the consequences of imprisonment.

These observations seem to me to make it clear that where a court deems it proper to imprison a young first offender that it should not impose a crushing sentence.  It should be remembered that there are no reformatories (in Papua New Guinea) and that in many cases young people share what is provided in the corrective institutions with adults.  See the difference of the approach of Burbury C. J in R v Mather and Rogers [1962] Tas SR 25, when an excellent new reformatory institution was in existence as compared with his approach in Lakey v Sanderson [1959] Tas SR 17, before the institution was available……”

27.	As I said, these prisoners are youths and should be given an opportunity to rehabilitate and to move on with life.  They should not be given sentences that would have crushing effect on them as it is noted there are no prison facilities in this country for youthful offenders who therefore serve their terms of imprisonment with adults in the same prison facility.  This comment is being made in the light of the comments made by His Honour Raine J in the above case some half a century ago and yet this country is still grappling with this problem.

28.	Youthful offenders should be given the opportunity to rehabilitate even if the offences committed are indictable.  Range of sentences should be different from that of adults for purposes of rehabilitation.

29.	The prisoner Hatson Charlse 19 years of age and Tobby Freddy is 20 years of age as reported in the PSR by the Probation Officer.

30.	This type of cases have attracted sentences between 10 to 20 years as is in the case of The State -v- Melchior Gumbuli [2021] PGNC 360; N8962 (19th March 2021) which I decided where the prisoner pleaded guilty and was sentence to 16 years.  He was not a youthful offender.  The prisoner in that case chopped the victim and the victim escaped to her house.  The prisoner followed her and inflicted wounds on her again in her house.  The same term was imposed in the case of The State -v- Siprandu [2021] PNGC 170; N9009 (14th July 2021) Biala, Batari J.
 
31.	This case does not involve the same degree of violence as in Gumbuli cases and Siprandu (supra) as the deceased was struck once by the prisoner Hatson Charlse and Tobby Freddy cut him several times.  They did not follow up on the assault.  But in each case there was involved the consumption of alcohol or home brew: “yawa”.

32.	The offenders in both those cases were adult persons and married with children.  Which means more responsibility rested on their shoulders as compared to these youthful offenders.  The prisoners here are youths.

33.	Mr. Katosingkalara has recommended a sentence of 13 years for Tobby Freddy, 12 years for Hatson Charlse while Mr. Korei of the Public Prosecutors’ office recommended a term of 20 to 30 years.

34.	These sentences as recommended by Counsels do not take into consideration the very serious matter of youthfulness although I note Mr. Katosingkalara did allude to this in his submission without citing any authorities.  Those sentences are normally imposed on adult offenders.

35.	I also give consideration to the remarks made by Mr. Korei that children nowadays are becoming disobedient to parental guidance and (parental) advise as to standards of behaviour and that; in his submission, they should be regarded as adults.  That sentences imposed should reflect this.

36.	Whilst I share that view, the fact is that they are still youthful offenders and the sentences to be imposed here must be a sign post to them for change and rehabilitation.

37.	This case and its resultant bad effects have been glued on their minds and remain as scars to them for the rest of their lives and I note they do very well regret their misgivings.  However a mistake which resulted in the loss of a life, however it was lost, cannot be undone, or put right or corrected and the deceased will not be resurrected.  A prison term is therefore appropriate.

38.	In the exercise of my discretion provided under Section 19 of the Criminal Code, the sentence of 8 years is imposed for the prisoner Hatson Charlse and 12 years is imposed for the prisoner Tobby Freddy upon the following conditions:  

(i)	the prisoner Hatson Charlse be imprisoned for 8 years, less the time spent in prison awaiting his trial;
(ii)	the prisoner Tobby Freddy be imprisoned for 12 years for his part in the crime less time spent in prison awaiting his trial;
(iii)	both prisoners be placed on 2 years probation upon the payment of the sum of K2,500.00 each in accordance with Crimes Compensation Act to the relatives of the deceased within 6 months from the date of this Order failing which they should serve out their terms;

39.	The Orders are that:

(i)	the prisoner Hatson Charlse is to serve 8 years in prison less 2 years 4 months and 3 days for time spent in Boram CIS awaiting trial leaving the balance of 5 years 7 months 27 days;
(ii)	2 years suspended from the balance sentence on conditions that the sum of K2,500.00 is paid as compensation within 6 months from the date of this Order to the relatives of the deceased, failing which he is to serve the whole prison term.
(iii)	the prisoner Tobby Freddy is to serve 12 years less 2 years 4 months and 3 days for time spent in prison leaving the balance of 9 years 7 months 27 days;
(iv)	2 years suspended from the balance sentence on conditions that the sum of K2,500.00 is paid as compensation within 6 months from the date of this Order to the relatives of the deceased, failing which he is to serve the whole prison term.

________________________________________________________________
Public Prosecutor: Lawyer for The State	
Public Solicitor: Lawyer for the Defendant