N9737

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 400 OF 2021

BETWEEN:
THE STATE

AND:
SAUN ROBERT KWOL

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

CRIMINAL LAW:  Practice and Procedure – plea of guilty – murder – multiple bush knife wounds to head of deceased – no reason for murder given – head sentence of 12 years mitigating factors – youthful offender – suspension of part of sentence.

Cases Cited:

Manu Kovi -v- The State [2005] PGSC 34, SC789
Lawrence Gimble -v- The State [2008] PGSC 51, SC1017
Goli Golu -v- The State [1979] PNGLR 635
Passingan -v- Beaton [1971-72] PNGLR 206

Legislation:

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

Counsel:

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

15th June, 2022

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

SUAN ROBERT KWOL of Manguel Village, Drekikier District, East Sepik Province stands charged that he, at Manguel Village, Drekikier District, East Sepik Province on 24th December 2019, unlawfully killed Benedict Akupuk contrary to Section 300(1)(a) of the Criminal Code.

2.	The brief facts of the matter are that a land dispute took place between the people of Baklo Village and Manguel Village which resulted in the accused armed with a bush knife struck the deceased on the head several times resulting in his death.  This happened because the deceased swore at the accused and loaded his shot gun to shoot but the accused cut him first with the bush knife several times causing his death. The deceased was crawling on his knees when the accused inflicted the fatal blow on his head, resulting in his death.

PLEA

3.	The contents of the indictment and the brief facts of the matter were put to the accused to which he entered a plea of guilty.

4.	Mr. Siki submitted that the plea was consistent with his instructions and a provisional plea was entered.

5.	A perusal of the committal file showed that the accused made confessional statements in answer to Qs. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 & 12.

6.	The accused was found guilty of the charge of murder pursuant to Section 300(1)(a) of the Criminal Code.

ANTENCEDENT

7.	No prior conviction.

ALLOCUTUS

8.	The prisoner made statements in his allocutus that he is 23 or 24 years of age and that he was about 20 or 21 years of age when he committed the crime.

9.	Realising his own remissions he said sorry to the Court for the time and costs involved and to the relatives of the deceased.

10.	He said he paid compensation of K12,151.00 to the relatives of the deceased showing his genuiness of remorse which amount is above and beyond the limit set under the Criminal Law (Compensation) Act No. 26 of 1991.

11.	He sought for leniency of sentence part of which should be suspended because of his youthfulness.

PRE-SENTENCE REPORT (“PSR”)

12.	Mr. Siki submitted that a PSR be filed which PSR was filed on 14th June 2022.

MITIGATING FACTORS

13.	The mitigating factors are:

i.	Entered an early Guilty Plea. The prisoner admitted to the charges which sa]ved the Court and the State its resources to run the entire trial.
ii.	The prisoner had no prior convictions. He is a first time offender.
iii.	He was very remorseful and apologized to God, the State, the Court and the family of the deceased.
iv.	The killing was not pre-planned.
v.	Prisoner caused no further trouble and surrendered and cooperated with the police.
vi.	The prisoner and his family paid compensation of K12,151.00.
vii.	Pre-sentence report.

AGGRAVATING FACTORS

14.	The aggravating factors are:

i.	Loss of life showing a complete disregard for the sanctity of life.
ii.	A vicious attack on the deceased cutting off his right hand and severely cutting his left leg calf muscle and a very severe cut the deceased on the forehead and was crawling on the ground already severely wounded and defenceless.
iii.	Offender used a deadly and offensive weapon, namely a bush knife.
iv.	Existing problems of land issues.
v.	Prevalent Offence.

SUBMISSIONS BY COUNSELS

15.	Mr. Siki submitted that the prisoner be given a term of 13 years while Mr. Kaipu submitted for a term of 23 to 25 years.

DECISION ON SENTENCE

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

“(1) Subject to the 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 intended to do grievous bodily harm to the person killed or other person or …..,”
“Penalty:  Subject to Section 19, imprisonment for life.”

17.	The sentence to be imposed by the Court is always subject to Section 19 of the Criminal Code taking into consideration on 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. 

18.	Sentencing guidelines have been set in the Supreme Court decision in Manu Kovi -v- The State [2005] PGSC 34, SC789 (Waigani:  Injia DCJ, Lenalia & Lay JJ:  2004:  July 27th October 27th, 2005, May 31st) in which 4 broad categories were decided and that each case should be decided in accordance with those 4 categories.  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.		

19.	This case falls within category 2 of the Manu Kovi case which carries a sentence of 20–30 years. However, from the evidence contained in the committal file, these does not appear to be any pre-planning nor was there any strong desire to murder.

20.	There is evidence of de facto provocation and self defence but the force used by the accused to inflict wounds resulting in death is disproportionate to the mere pointing of gun to the accused by the deceased.

21.	The offender here is about 23 or 24 years of age.  He was about 20 or 21 years of age at that time he committed the offence. He paid compensation of K12,500 which is above and beyond the amount of K5,000 provided for under Section 3(b)(2) of the Criminal Law (Compensation) Act No. 26 of 1991.

22.	The offender co-operated with the Police and has saved time and costs of the Court in entering an early plea.

23.	Since committing the offence, he was remanded in custody and remained in custody for 2 years 5 months and 2 days.

24.	In his allocutus he stated that he knows he will be given a custodial sentence but asked that part of that custodial sentence be suspended.

25.	The PSR prepared by Moses Galus filed on 14th June 2022 strongly suggests that the prisoner is a suitable candidate for probation.

26.	It has been said that when sentencing youthful offenders, the Courts should be wary not to impose sentences that would be crushing Passingan -v- Beaton [1971-72] PNGLR 206 per Raine J. (at p.206)  where His Honour said that “[T]hese observations seem to me to make it clear that where a Court deems it proper to impose a young first time offender that it should not impose a crushing sentence …”

27.	While the youthfulness of the prisoner is a factor that must be given weight together with his early plea and the genuine remorse he expressed in his allocutus, I do not think the facts and circumstances of this warrant lesser sentence than those which I referred to in The State -v- Sakria Mangi Wineimba CR No. 912 of 2021 (17th June 2022) which are The State -v- Eric [2017] PNGC 134, N6790 and The State -v- Kiosai [2021] N8961.

28.	In those cases the prisoners struck the deceased persons only once and that their actions involved de facto provocation.

29.	In this case, the actions of the prisoner also involves de facto provocation but his actions of repeatedly inflicting wounds demonstrates his decisiveness to inflict wounds to kill.

30.	In fact, the deceased was already somewhat disabled after receiving initial blows resulting in him crawling on his knees. This must be seen as evidence that the deceased was begging the prisoner to please not inflict any further blows.

31.	The prisoner became sadistic and, in my view, seeing the deceased on his knees is a sign of begging, but the prisoner was encouraged by that gesture to inflict the fatal blow on his head.

32.	As his Honour Salika CJ said in the case of The State -v- DP (Juvenile) CR 937 of 2019 which involves repeated sexual offences committed by a young male child on a under age girl, this type of children must not be put on parole so that they walk around the streets as if they had done nothing wrong.  The sentence of 5 years in that case was suspended. The juvenile was sent to Boys Town for 12 months.  His Honour said in that case:

“To me, with respect the welfare and interest of the victim appears to be the least of the concerns of law and the State. After having gone through the indignity of the persistent sexual assaults, the victim is immediately forgotten but the offender is given all the assistance by the law and the State to go back to his family and pretend nothing serious happened and that all is good and that he can enjoy life.”

33.	This case involves repeated assaults in a murder case.  Noticing the deceased on his knees, the prisoner should have known that the deceased was indeed helpless and hopeless and was begging to be spared.

34.	Given that the prisoner entered early plea and is youthful, I consider that the prisoner should be imprisoned for a term of 12 years less 2 years 5 months already spent in gaol in remand, part of the remaining balance be suspended.

35.	I cannot imagine that youths today keep committing serious crimes and should be given wholly suspended sentences because it seems there is an increase in the number of youths coming to Court charged with serious offences. As Mr. Kaipu submitted, this offence is prevalent.

36.	A mistaken belief will be borne in the minds of other youths to commit crimes knowing that their sentences will be wholly suspended because of these precedent decisions. The prisoner in this case is not a youth whose age is 18 years or below.  He is a matured youth living an independent life. He behaved like an adult when he committed the crime.

37.	The Court makes the following views:

(i)	the prisoner be imprisoned for a term of 12 years;

(ii)	the period of remand of 2 years 5 months is deducted leaving the balance of 9 years 7 months;

(iii)	a further term of 3 years is suspended and the prisoner is placed on probation and be of good behaviour and not to take any alcoholic beverages including any illicit drugs;

(iv)	the prisoner to serve a term of 6 years 7 months imprisonment; and

(v)	should the prisoner breach any of these conditions in paragraph 37(iii) above, he must be brought back to Court to be sentenced accordingly.
________________________________________________________________
Public Prosecutor:  Lawyer for the State 
Public Solicitor:  Lawyer for the Defendants