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State v Pitilak [2022] PGNC 207; N9639 (12 May 2022)

N9639

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1273 OF 2021

THE STATE

v

SAMUEL PITILAK

Madang: Geita J
2022: 8^th March, 8^th, 12^th May

CRIMINAL LAW – Guilty Plea - Sentence -– Victim chopped on head with a bush knife – Victim caught unaware – death occurred – Murder s. 300 (1)(a) Criminal Code Act.

CRIMINAL LAW – Sentence – Aggravating factors slightly outweigh mitigating factors – Death arose as a result of a stolen mobile phone worth K700.00.

CRIMINAL LAW – Accused sentenced as a Juvenile – ss. 2 & 6 Juvenile Justice Act 2014.

Facts

The accused and the deceased were both juveniles at the time of the crime. Their juvenile status was not readily available until the accused raised the issue that he was a juvenile and ought to be treated under the Juvenile Courts Act. The accused cut the victim on his head with a bush knife over a stolen mobile phone worth K700.00.

Held

1. In the absence of any evidence establishing the correct age of a juvenile, said to be under the age of 18 years, such juveniles are entitled to the protection accorded to them under s.2 of the Juveniles Justice Act 2014.

2. By operation of s.6 Juvenile Justice Act 2014, such juveniles must be sentenced within the sentencing scope and considerations of the Act and not treated as adults.

3. As a matter of best practise defence counsel are best urged to clearly establish the correct age of a juvenile offender at the outset as soon as they are seized of their court files.
Cases Cited

Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [2005] SC789
Manu Kovi v The State [2005] SC789
Public Prosecutor v Don Hale [1998] SC564
Saperus Yalikabut v The State [2006] SC890
State v SE (A Juvenile) [2019] N7971
The State v A. W.P. (Juvenile) [2021] N9279
The State v CJ (Juvenile) [2018] PGNC 491
The State v FT (Juvenile) [2016] PGNC 238
The State v GM [2014] CR 1048/14
The State v Pinapang [2016] N6616
The State v Ururu [2015] N5980

Counsel:

D. Dogiri, for the State
N. Loloma, for the Accused

JUDGMENT ON SENTENCE

12^th May, 2022

1. GEITA J: The accused entered a guilty plea before me on 8 March 2022 for murder. The offence comes under section 300 (1)(a) Criminal Code and attracts a maximum life imprisonment but subject to s.19 Criminal Code considerations.

Brief Facts

2. The brief facts are these: On 19 January 2021 the accused went to the place where the deceased and his brother Israel Sakimun were sawing timber with other boys at Ulun village Karkar island. He came from behind armed with a bush knife and chopped the deceased on his head causing him to fall down. As he was rushed to Gaubin hospital he died. A medical report confirmed that he died as a result of the bush knife cutting into his skull and penetrating his brain.

3. No prior convictions have been recorded against the accused. As to allocutus or when you were asked if you had anything to say about the punishment that should be considered for you, you said this was your first time to appear before a National Court and you asked for leniency. You further said you were a student and wanted a lighter sentence to enable you to complete your studies. You apologised to the Court, to the lawyers and to the deceased’s family. You said you were sorry for breaking the law and asked to be considered for probation.

4. Your mitigating factors include no prior convictions, first time offender, a juvenile, remorse, early guilty plea, and cooperation with police. Your aggravating factors include, prevalence of the offence, loss of life, dangerous weapon used on a vulnerable part of the body. The attack was vicious as it was committed in front of the deceased’s 12-year-old brother.
Pre- Sentence Report

5. A pre-sentence report was prepared and submitted on your behalf by Probation Officer Alice Biko. The prisoner is now 20 years old but at the time of committing the crime he was 18 years. He is the first-born child in a family of three children. His suitability for probation was treated with caution by the Probation Officer on the grounds that she was unable to interview any members of the victim’s family to make an informed assessment. As to compensation more than K7,800 in cash and kind were paid to the victim’s relatives.

Submissions on sentence – Defence

6. Defence Counsel Mr. Loloma submitted that the prisoner was a juvenile and his sentence ought to be considered in light of the sentencing considerations under s.6 (b) of the Juvenile Justice Act 2014: (...the interest of the juvenile is the primary and paramount consideration.) Counsel submitted that the Court consider s. 19 Criminal Code considerations for a lesser sentence instead of the maximum life imprisonment. Maximum penalty is best reserved for the worst possible cases, Mr Loloma submitted. (Goli Golu v The State [1988-89] PNGLR 653 and Ure Hane v The State [1984] PNGLR 105.)

7. He submitted that a sentence between 8 years to 10 years to be appropriate less the pre trail periods available to the prisoner. As to whether some parts of the sentence should be suspended the case of Public Prosecutor v Don Hale [1998] SC 564 was referred to the Court. This case holds the proportion that where there is a very favourable pre-sentence report, the Court should consider a suspended sentence. Mr Loloma submitted that the prisoner was a juvenile who has admitted his wrong and expressed genuine remorse with his family paying some compensation. Some of these mitigating factors warranting some parts of his sentence to be suspended. In support of his arguments he referred the Court to the cases of The State v CJ (A Juvenile) [2018] PGNC 491; The State v FT (A Juvenile) [2016.] PGNC 238 and The State v A. W.P. (Juvenile) [2021] N9279. The juvenile prisoners in these three cases were sentenced to between 8-10 years for murder under s.300 (1(a) Criminal Code. Mr Loloma submitted that this case would fall under category 2 of Manu Kovi v The State [2005] SC 789 at the lower range.

8. The case of Lawrence Simbe v The State [2005] SC789 was also relied on by defence counsel: That case holds the proposition that every case shall be decided based on its own merits and peculiar circumstances, to which I whole heartedly agree.
Submissions on sentence – State.

9. On behalf of Prosecution Mr. Dogori correctly pointed out that the maximum penalty not to be considered in this case but to be imposed only on worst types of cases: (Goli Golu v The State [1979] PNGLR 653.) He submitted that the crime was serious and prevalent in the province and called for a deterrence sentence of between 18 – 21 years. He submitted that this case falls between category 2 and 3 of Manu Kovi sentencing tariffs. The Prisoner had the strong intention to cause grievous bodily harm, he used an offensive weapon, a bush knife. Furthermore, the injuries sustained were vicious. The prosecution concede that the prisoners were first time offenders and have paid some amount of compensation.

10. Mr. Dogori submitted that at the time the crime was committed the prisoner was 18 years and not a juvenile, therefore not entitled to the benefits of the sentencing principles enshrined in the Juvenile Courts Act 2014. Counsel ably assisted the Court by submitting the sentencing trends of sentences imposed on juveniles in the following comparable cases under section 300 (1) Criminal Code: The State v Pinapang [2016] N6616, The State v Ururu [2015] N5980, The State v GM [2014] CR 1048/14. All three cases were plea cases attracting a sentence of a low 19 years to a high 20 years, with no suspensions.

Appropriate sentence in this case?

11. Both Counsel were heard on submissions. I also have had the benefit of a pre-sentence report presented to me including the very helpful cases. For the moment I am satisfied that the crime committed falls within the upper range of category 2, Manu Kovi sentencing tariff of 20 years. The prisoner’s intention to cause harm was present, an offensive weapon, a bush knife was used and there was some element of preplanning including the attack was vicious. To my mind the prisoner’s aggravating factors and mitigating factors are evened out. I am mindful that the prisoner was a juvenile when he committed the crime but now turned adult over a passage of time.
12. This is a clear case of serious harm or death not warranted. The evidence before me is the accused’s admissions, the eyewitness account of the victim’s younger brother Israel. In his record of interview the accused shifts blame on the deceased however said it was an accident as he did not intend to kill the deceased. He said he was out to get at the deceased for not paying for his mobile phone, stolen from him earlier. To my mind this killing was not warranted and deserving of a serious sentence. To his credit the accused entered a guilty plea for which he will be accorded the necessary protections available to him. (Saperus Yalikabut v The State [2006] SC 890). He will be given the benefit of doubt.

13. I note also that some compensation has been paid. I note also that he is a first-time offender. As to his sincerity in expressing remorse to the deceased and his family. Now considering this case on its own set of facts and circumstances it is clear to me that it should not attract the maximum life sentence. Each case is different with its peculiar circumstances and in most situations will ultimately determine the kind of sentence that must be imposed. I take judicial notice of the two opposing submissions on sentence from Counsel.

Juvenile Justice Act 2014

GENERAL PRINCIPLES

14. Section 6. A Court or person exercising a power or performing a function in accordance with this Act is to be guided by the following principles:

(a) because of their youth and vulnerability, special considerations apply in respect to proceedings against juveniles, and –...

(b) in all actions concerning a juvenile, the best interests of the juvenile are the primary consideration; and. (emphasis mine)

Section .2 Interpretation

"juvenile" means a person who is, or in the absence of evidence to the contrary appears to be, ten years old or older, but less than 18 years old;(emphasis mine).

15. The exact age of the juvenile prisoner only surfaced during submissions and was not established by evidence. It follows that he is entitled to the protections accorded to him under s 6 (a) (b) and s 2 of the Juveniles Justice Act 2014: ( "juvenile" means a person who is, or in the absence of evidence to the contrary appears to be, ten years old or older, but less than 18 years old). He will be treated as a juvenile offender and not an adult. His sentence will be guided by the Juvenile Court Act 2014 sentencing principles.

16. Might I say here in passing that it is incumbent on defence Counsel to clearly ascertain the exact age of young offenders coming before courts so that they be accorded the protection available to them under the Juvenile Justice Act 2014. If it were not for the missing crucial evidence of his age, an adult sentence of between 18 - 20 years sentence would be considered. This would bring it in line with the current trend of sentences for juvenile offenders under s.300 Criminal Code Act. Notwithstanding the seriousness of the crime that you have committed I will sentence you to 10 years less the pretrial custody periods available to you. I do not think this sentence is excessive as it falls within the spirit of section 76 (1) (2) (a) (b) to (f) of the Juvenile Courts Act 2014. (State v SE (A Juvenile), [2019] N7971. As to his request for continuing his education the Commander of the Correctional Institution shall ensure that necessary arrangements be made for the offender to undergo FODE studies during the term of his imprisonment (State v CJ (A Juvenile) [2018] PNNC 491).

Sentence

17. Due to the foregoing reasons, I consider that the appropriate head sentence in respect of this crime is ten (10) years less pretrial custody periods available to the Prisoners. I will not suspend any part of this sentence or consider you for probation. The Commander of the Correctional Institution shall ensure that necessary arrangements be made for the offender to undergo FODE studies during the term of his imprisonment.

Orders accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Prisoner