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State v Glaman [2022] PGNC 249; N9736 (15 June 2022)

N9736

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 399 OF 2021

BETWEEN:
THE STATE

AND:
GONSLY GLAMAN

Maprik: Rei, AJ
2022: 7^th, 14^th & 15^th June

CRIMINAL PRACTICE: plea – murder – injuries inflicted on jaw to back of neck – use of knife – genuine expression of remorse - head sentence 12 years – part of sentence suspended.

Cases Cited:

Manu Koivi -v- The State [2005] PGSC 34, SC789
Passingan -v- Beaton, [1971-72] PNGLR 206
The State -v- Galis Gideon Kialo, [2014] PGNC 372, N6846
The State -v- Gumbuli, [2021] PGNC 360; N8962
The State -v- Jack Mek, [1977] N1575

Legislation:

Section 19 & Section 300(1)(a) of the Criminal Code
Section 5(2) (b) of the Criminal Law (Compensation) Act No. 26 of 1991

Counsel:

Mr. Anderw Kaipu, for the State
Mr. Dan Siki, for the Defence

DECISION ON SENTENCE

15^th June, 2022

1. REI AJ: The State presented an indictment against the accused on 7^th June 2022 alleging that:
   

GONSLY GLAMAN of Wombat Village, Maprik District, East Sepik Province stands charged that, he at Wombat Village, Maprik, East Sepik Province in Papua New Guinea, on the 2^nd day of January 2022 murdering Kviakomi Pailk Sipilisik contrary to Section 300(1) of the Criminal Code.

2. The brief facts are that on 2^nd January 2022 the accused and other relatives including the deceased who is his brother-in-law were attending the funeral of the late Pailk Sipilisik at his house.
   
3. Whilst in the funeral house, the accused shouted at the mourners and jumped down from the house and threatened to cut the mourners when he ran to the deceased and cut him on his left jaw which extended from the left corner of the mouth down to the back of his neck fracturing the left jaw-bone and teeth.
   
4. The deceased died as a direct result of the wounds inflicted by the accused.
   

PLEA

5. The contents of the indictment as well as the brief facts were read to the accused and asked to enter a plea.
   
6. The accused entered a partial plea of guilty which Mr. Siki confirmed was consistent with his instructions.
   
7. The perusal of the committal file revealed that the accused made confessions in answers to Q.14, 15, 16, 17, 18, 22 & 25 of the record of interview conducted on 11^th March 2020.
   
8. The accused was found guilty of the charge of murder laid under Section 300(1) (a) of the Criminal Code.
   

ANTECEDENTS

9. No prior convictions.
   

ALLOCUTUS

10. In his allocutus the prisoner said he was sorry to have broken the Law and that it is his first encounter with the Law. He said sorry to the Court for taking its time.
    
11. The prisoner appeared genuinely remorseful to the family of the deceased and also to his own family for bringing shame resulting from his such conduct.
    
12. He also said that in support of his remorse he has paid compensation to the relatives of the deceased in the sum K10,000.00 and some food.
    
13. He said he is a youthful offender at age of 23 years and single.
    
14. He has spent 2 years 5 months in custody awaiting the trial of this matter.
    

PRE-SENTENCE REPORT (“PSR”)

15. Mr. Siki asked that a PSR be presented which was filed on 14^th June 2022.
    

MITIGATING FACTORS

16. The mitigating factors are:
    
    1. Entered an early Guilty Plea. The prisoner admitted to the charges which saved the Court and the State its resources to run the entire trial.
    2. The prisoner had no prior convictions. He is a first time offender.
    3. He was very remorseful and apologized to God, the State, the Court and the family of the deceased.
    4. The killing was not pre-planned.
    5. Prisoner caused no further trouble and surrendered and cooperated with the police.
    6. The deceased relatives retaliated and burnt down the prisoner’s house.
    7. The prisoner and his family paid compensation of K15,000.000, 3 kina shell or ring money.
    8. Pre-sentence report.
       

AGGRAVATING FACTORS

17. The aggravating factors are:
    
    1. His Honour agreed with the State’s submission that there was little doubt that the killing was carried out in a vicious and brutal manner.
    2. The bush knife was used with such heavy brutal force that it inflicted lethal injuries around the victim's left shoulder and chin area and on his left hand severing it completely that led to the victim's death shortly thereafter at the scene of the attack due to heavy loss of blood.
    3. The graphic pictures of the wounds inflicted bear testimony to the gravity and viciousness of the force used. Such force was unnecessary, unreasonable and uncalled for towards a relative.
       

DECISION ON SENTENCE

18. Section 300(1)(a) of the Criminal Code provides that:
    

“Subject to the provisions of this Codes, a person who kills another person under any of the following circumstances is guilty of murder.

“(a) if the offender intended to do grievous bodily harm to the person killed ....

“Penalty: Subject to Section 19, imprisonment for life.”

19. While Section 300(1)(a) provides for life imprisonment for the offence of murder, the Supreme Court in Manu Kovi -v- The State [2005] SC789 (Waigani: Injia DCJ, Lenalia & Lay JJ: 2004: July 27^th, October 27^th 2005, May 31^st) set out at the sentencing guidelines which are:

20. The sentence to be imposed is always subject to Section 19 of the Criminal Code taking into consideration the facts and circumstances of the case Lawrence Gimble -v- The State [2008] PGSC 51, SC1017 and that the maximum penalty be reserved for the worst scenario case – Goli Golu -v- The State [1979] PNGLR 635.
    
21. This case is a border line case falling within category 1 and 2 of the Manu Kovi guidelines and attracts a sentence of 20-30 years.
    
22. The prisoner is a youthful offender who was 23 years of age at the time the matter came on for trial.
    
23. He has shown genuine remorse in Court as proven by the fact that he paid compensation of K25,000 which is above and beyond the limit of K5,000 provided for under Section 5(2)(b) Criminal Law (Compensation) Act No.26 of 1991.
    
24. As a youthful offender, any sentence imposed should not be crushing and that he should be given the opportunity to rehabilitate – Passingan -v- Beaton [1971-72] PNGLR 206 per Raine J. at p.209.
    
25. Mr. Kaipu submitted that the prisoner be sentenced to 15 years while Mr. Siki submitted that a sentence of 13 years be imposed. Mr. Kaipu referred me to and relied on the case The State -v- Galis Gideon Kialo PGNC 372, N6846 where the prisoner got a bush knife, cut the deceased in the back, the left shoulder, left arm resulting in his death. A sentence of 12 years was imposed.
    
26. A sentence of 16 years was imposed out of which the term of remand was deducted leaving the balance of 7years 5 months.
    
27. He also relied on The State -v- Paul Karuka where her Honour Ganai AJ imposed a sentence of 16 years imprisonment where the prisoner struck the deceased with an iron rod and died later.
    
28. In response Mr. Siki relied on the case of The State -v- Kialo (Supra) and the following cases:
    
    • (i) In The State v Gumbuli [2021] PGNC 360; N8962, AJ Rei, the prisoner was charged with one count of manslaughter pursuant to section 300 (1) (a) of the Criminal Code. The peculiar facts of this case were, the accused went home drunk and was involved in an argument with the deceased and her family. The accused then physically assaulted the younger son of the deceased causing the deceased to insult the accused. A fight ensued between the accused and the deceased where the accused used a bush knife and cut the deceased’s chest extending to her abdominal area. After some time, the accused armed with a bush knife went to the deceased’s home and cut her again on her hand. The deceased suffered deep lacerations to her head and chest and abdominal area which resulted in moderate to severe bleeding.
      
    • (ii) In The State v Jack Mek (1997) N1575: The prisoner, a youth in his early 20s was sentenced after trial for murder to 8 years imprisonment. He axed his stepfather (his deceased biological father’s brother) to death after he sided with his mother in an argument with the deceased over the prisoner’s sister. The trial judge, His Honour Injia J (as he then was) found that the prisoner was incited into killing the deceased by his mother. He took into account that the prisoner was “a young man who had a long future ahead without a father to help him make it through young life, marriage and other aspects of life. By his own doing, he has lost his stepfather and will have difficulty making] it through in life to become a man.” He also took into account that loss of a close relative is a mitigating factor. The offender was sentenced to 8 years imprisonment.
      
29. I have considered the fact that the prisoner entered a plea of guilty saving time and costs. He has expressed genuine remorse and in doing so, he paid compensation of K10,000.00 which is above and beyond the limit set in Section 5(2)(b) of the Criminal Law (Compensation) Act No.26 of 1991 of K5,000.00.
    
30. The PSR report prepared by Moses Galus does not recommend probation. It says the prisoner is a threat to the community.
    
31. Giving consideration to these factors, a sentence of 12 years is imposed. The time spent in goal awaiting the trial of this matter is to be deducted
    
32. The Order of the Court is:
    
    • (i) that a sentence of 12 year IHL is imposed;
    • (ii) term of 2 years 5 months is deducted leaving a balance of 9 years 7 months;
      
33. Because of the youthfulness of the prisoner and in the exercise of my discretion under Section 19 of the Criminal Code, he is put on 2 years probation to be supervised by the Probation and Parole Officer, Wewak and be on good behaviour.
    
34. The term of 9 years 7 months be served as follows:
    
    • (i) 7 years 5 months in prison
    • (ii) 2 years on probation upon the following conditions:

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants