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State v John [2022] PGNC 264; N9689 (10 June 2022)

N9689

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 297 OF 2020

THE STATE

V

KAPUL JEROME JOHN

Wewak: Miviri J
2022: 02^nd, 10^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Plea – Drunk– Fighting – Victim Speared with hunting Spear – Stomach Injury – Injury Small Intestine left Diaphragm & Ventricle – Intention to Cause GBH – Death as A Result – Prevalent & free Consumption of Illicit Homebrewed Liquor – Root of Crime – Relevant Factor in Sentencing – Break Down of Law & Order – Strong Deterrent Punitive Sentence – 18 Years Imprisonment minus remand.

Facts
Prisoner speared the deceased with a hunting spear in the stomach causing massive internal injuries from which he died.

Held
Plea.
Drunk homebrewed liquor.
Intent to cause grievous bodily Harm.
Deliberate spearing.
Sanctity of Life
Prevalent offence
PSR MAR considered
Recommendation against Probation.
18 years IHL minus time on remand.

Cases Cited:
Kwapena v The State [1978] PNGLR 316
The State v Kovi [2005] PGSC 34; SC789
The State v Malala [2018] PGNC 310; N7414
The State v Nimagi [2004] PGSC 31; SC741
Tardrew, Public Prosecutor [1986] PNGLR 91
Aihi v The State (No 3) [1982] PNGLR 92
State v Hagei [2005] PGNC 60; N2913
The State v Lopai [1988-89] PNGLR 48
Kumbamong v State [2008] PGSC 51; SC1017

Counsel:

F. K. Popeu, for the State
A. Kana, for the Defendant

SENTENCE

10^th June 2022.

1. MIVIRI J: This is the sentence upon Kapul Jerome John of Holik Yangoru, East Sepik Province who speared Nigel Nipo on his stomach causing him grievous bodily harm from which he died.
   
2. On the 18^th July 2019 Kapul Jerome John together with the deceased Nigel Napo and others were consuming homebrew in the course of which an argument ignited between the Accused and the deceased. The deceased as a result started to run away, followed by the Accused and another person. The Accused was armed with a spear for shooting pigs which he used to shoot the deceased with in the stomach area. Upon being speared deceased was taken to his house but died shortly thereafter. Medical Autopsy showed deceased Nigel Napo had died from massive loss of blood as a result of the spear wound that he received. When accused speared him in the stomach, he intended to cause him grievous bodily harm.
   
3. The Indictment presented was pursuant to Section 300 (1) (a) of the Criminal Code reading:
   
   • (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 to some other person;

(b) if death was caused by means of an act–

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.”

4. Accused pleaded guilty stating that he was chased by the deceased with a bush knife. He picked up the hunting spear to deter the deceased from continuing to pursue the assault. This version it would appear was not consistent with witnesses account at the scene, hence the defence counsel inclination for a guilty plea. Independent sober witnesses state the Prisoner speared the deceased with the spear. Exchanges in the course of the consumption of illicit alcohol led to physical confrontation and fighting which culminated with the use of the hunting spear that claimed the life of Nigel Nipo, originally from Nimboron Village, Yangoru, East Sepik Province. Perusal of the depositions tendered did not detail that this was a situation likened to within the meaning of Kwapena v The State [1978] PNGLR 316 (1 September 1978), where he was faced against a deadly weapon and had no choice but to act as he did. That is not the situation here and so the plea was confirmed after perusal of the depositions.
5. But it was clear that the availability of cheap alcohol brewed, or “steam”, within the communities put up for sale meant drinking alcohol was readily available. One didn’t need a licence to sell it. It did not pin down the age of those who could consume it. Therefore, as here young juveniles 17-year-old were akin to taking it. Its effect because of its illicit nature meant the alcohol content was not controlled. And if consumed as was the case here would lead to problems in law and order as happened here. It is not a light matter to sentence the prisoner here. Because the peacefulness, law, and order, of a community a village a Province was stifled and strangled because of this illicit alcohol. It is a prevalent factor taking the country by storm upon the very young middle class and the advanced in life. Towns and cities have succumbed to its web of unlawfulness. Not a day ends without the misery it steams out. It is therefore time to seriously consider its impact on society and reflect in sentences passed. Without its consumption both deceased and prisoner would not be before me. It is therefore a very stern matter in the determination of this sentence. Because with it has come the deaths that result and communities made to draw deep to compensate. Loved ones lost out of life at very young age as is the case here.
6. And in instances it has drawn communities away from their normal existence because the dispute has taken sides and has multiplied so that even towns are drawn demarcated into battle zones rather than fighting zones. This is the seriousness of this consumption. Wewak has seen this lawfulness strangle freeze the town into a quiet Ghost town even after 44 years of Independence going onto 45 years. When other towns cities in the Country are flourishing into the horizon of the 21^st Century and beyond. Witnesses that are meant for cases in Court are not scheduled to arrive because roads leading into have suffered from fighting that has escalated onto the road. The effect is that Law and Order Justice has been dumped on the wayside. The development of the East Sepik Province is thrown into the wayside to applaud lawlessness disorder and denial of Justice. It is therefore not a light matter where it is simply taking due account of the Supreme Court case of Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) bridging sentence by that reference and not to life itself prevailing. The law is meant to serve life. Sentences set out by the legislature are meant to attain goodness lawfulness orderliness in society. They are not mere codes without the force of law written. They must and ought to affect the lives steer the community if it has seriously fallen as here.
7. The two weeks that the Court has been here going onto three, the town of Wewak is dead after the hour has struck 5.00pm, there is no activity in the town. It has become a ghost town. A scenic beautiful town it has become a Ghost town because of lawlessness. Sentences passed have simply followed the book and have had no effect on lawlessness. On the eve of the submission of sentence, there was blockade outside the Court premises because an ethnic clash has drawn roots into the town. The Court access road was barricaded because men armed with bush knives and makeshift spears and pieces of timber were chasing each within the sight and hearing of the Court as it sat. The presence of the Court in the town is not heeded nor does it hinder deterrence, observance of the law, the rule of law. Given this background drawing out in the eve of this sentence, it is important that sentences are not just passed without taking account of prevailing circumstances. Because that is where real justice is served.
8. This is not to say that the Prisoner will be made the sacrificial lamb for the rest of East Sepik Province including the town of Wewak. But what has happened in his case is reflective of the many cases that have seen out by this Court in this two weeks going onto the third. It will therefore given be seriously taken account in the way the Court deals with matters that come. Appropriate and proportionate sentences taking account will be passed to reflect that the law does not tolerate abuse unlawfulness rift within. It is time to put a stop to all. The sentences passed will reflect that fact. The founding fathers led by Sir Michael Thomas Somare with Sir Maori Kiki did not intend that the Constitution they wrote and passed will gather dust in life but will bring law order and Justice. Because they have died, the Constitution has died with them and buried. This Court is a creature of that same Constitution and will do its duty without fear or favour and will bring the Rule of Law bold into the town of Wewak and the East Sepik Province. The sentence of the Court will reflect that fact. Because this circuit has seen invasion of homes defendants strengthened in committing aggravated armed robberies and rapes because of that fact. It must be stopped in its tracks it has no place in orderly and lawful society.
9. Which places the present set of facts and circumstance at category three which is 20 to 30 years imprisonment because there is viciousness in the attack, a weapon is used, here a spear is hurled at the deceased into the stomach killing him, a strong intent to do grievous bodily harm. A spear hurled the way it has described by the witnesses at the scene leaves no chance in survival and life for the recipient the deceased. Drinking of alcohol should be not the table upon which disputes are resolved. Clearly here is an example that calls for stern deterrent and punitive action in the sentence to be passed, State v Malala [2018] PGNC 310; N7414 (16 August 2018). The merciless cutting of all of the deceased limbs over he’s hitting their canoe is likened here. Deceased is chased like a pig hunted, and then speared in one of the most venerable parts of the human body, the stomach. And the assailant is a youthful offender a 17-year-old at the time of the crime. Serious violent criminal acts are now authored by young youthful offenders. In my view that is not the shield and should never be the shield without evidence to the contrary to smother the effect of the sentence due. And if this court in an armed robbery that culminated with the death of a victim there impose 50 years upon a similar youthful offender in Nimagi v The State [2004] PGSC 31; SC741 (1 April 2004) confirmed on appeal. I am bound to follow that dictate.
10. Because in dismissing that appeal and confirming the sentence, the Supreme Court said, “The Supreme Court, in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes nowadays know no boundary, and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane (supra), the Parliament has already legislated the different types of homicide by classifying them into manslaughter, murder, and wilful murder. In our view, it serves no purpose when Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this, we forget the values of lives that have been prematurely terminated. The notion of sanctity of life and constitutional protection of lives therefore become meaningless and mere judicial rhetoric.”
11. I consider these applicable in all fours to this case now in 2022. Because suspension diversion under the Juvenile Justice Act will come with circumstances facts that warrant imposition. And if read in the light of section 19 (6) of the Criminal code three broad categories can be summarized upon which suspension can be considered in sentence, (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health, Tardrew, Public Prosecutor [1986] PNGLR 91 (2 April 1986). In all respects in the case of the prisoner now with the Presentence Report recommends, “this offender is unsuitable for probation supervision at this stage because of threats for his own life and safety.” He lives doors away from the deceased family. And there is brewing feud over land current. It would not be in the interest of all to impose a non-custodial term given. And here considering all, it would serve no justice in accordance with Part III of the Juvenile Justice Act. Diversion in the light of this report is not in the best of both the prisoner as well as the Community and the State. There ought to be time served in jail taking account his age, the guilty plea and the facts and circumstances the sentence certainly would not be non-custodial given. The gravity of the offence far outweighs time outside of Jail.
12. In allocutus he recounted; “The deceased is my brother we were drinking he chased me up to the house. First time I saw spear was in front of the house. I hold it in front of me and said I have no grudges you go back. He wanted to cut me with the knife and bumped into Spear and died. I say sorry to deceased, to my family who have lost properties. They are now everywhere nowhere to sleep. I have my mother two brothers and sister. Mercy on me and give me Probation. I have never been in court before this is my first time in Court now. I am sorry for the crime that I have committed. I say sorry to God in Heaven. I say sorry to the Court for giving me time to hear my case. I left school in grade 4. Have mercy on me and give me probation. We paid compensation of K 21, 000.00 in cash, K 3000 traditional ring altogether valued at K 27, 000.00 worth paid in the village.”
13. The allocutus prompted application made and granted the Presentence with the Means Assessment Reports furnished now to be considered in the determination of an appropriate penalty upon him. That has now eventuated today 09^th June 2022. And that report is before me dated the 08^th June 2022. It confirms that he is a 20-year-old resident at Holik village, East Yangoru originally from Numboruon village, East Yangoru. He is the third born of a family of four siblings, father is married to four wives. His mother is the second wife. The father is no longer living with them he lives with his mother. Because of that fact he grew up from a neglected family according to the presentence report. He was educated at St Thomas Primary School in Yangoru going up to grade 4 and coming out because of this crime. He has no formal history of employment nor has he any money. But the presentence report confirms that K 10, 000 was paid in cash and K 11, 000.00 in traditional money “yua”. It was paid to the maternal uncles not the father of the deceased.
14. The presentence report confirms a long outstanding land dispute between the two families and it will ignite should the prisoner be released on a non-custodial term into the community. The report also states that attempt to kill his father did not succeed, so he was lured to drink and killed in the course of the argument, underlying reason is the subject land. Therefore, to release the prisoner will ignite, then bring peace and tranquillity. The prisoner is of the Catholic faith and attends church once in a while. He is a first-time offender who spends most of his time with peer group and relents to alcohol homebrewed as is the case. He is a single man who says that his vanilla and other cash generating crops have been destroyed as a result of the offence. Parents of the deceased are common that they do not want the release of the prisoner outside on a non-custodial term. And this is further supported in that the families live meters apart from each other in the village. The propensity to commit further offences arising is immediately there. And that is confirmed by the recommendation of the probation report against release on a non-custodial term and supervision therefrom.
15. It is evident and trite that no amount of compensation be it in kina and toea, or in traditional money whatever it maybe, will not draw back the life of the deceased from his grave to be with his family. At the same time the prisoner will some day in life after service of the prison sentence return to the community that he derived from. And when that eventuates, it should be not a case where old ashes are rekindled to burn against the other. Hence a delicate balance is worked out considering also that fundamental is the right to life, Section 35 of the Constitution as is to the prisoner as well as the deceased. Both are protected one not less than the other. Deceased has been prematurely forfeited at the behest of the prisoner. The reinforcement is section 300 (1) (a) of the code for the crime of murder the maximum of life imprisonment due him. To arrive proportionate a balance is distilled between the aggravating, as well as the mitigating and any circumstances extenuating to arrive, Aihi v The State (No 3) [1982] PNGLR 92 (5 March 1982). It will not bring him back but life sacred and sanctity is observed. Nor should it crush the prisoner.
    
16. Deceased was 20 years old detailed out by the medical report by the East Sepik Provincial Health Authority director of Curative Health Services signed by Doctor Jimmy Kambo Government medical Officer dated the 13^th August 2019 that he had died from a severe Chest Spear wound. And the date of his death was 18^th July 2019. He was observed for the purpose of the medical report 26 days after his demise. It was really unnecessary and uncalled for to die in this manner. Primarily from abuse of illicit homebrewed alcohol that left little to no regard for proper order and lawfulness in the community. Here I am conscious and take due account that this is not a case likened to Kwapena (supra). There is nothing in law to set aside what is now clear sentence for murder upon the prisoner.
    
17. He is aged 17 years old not verified with either a birth certificate or any other evidence to play any role in the sentence to be passed. There are no extenuating circumstances as observed by this court in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) that sway, otherwise than a deterrent custodial term to reflect. The recommendation is against a non-custodial sentence. It is a very serious offence of Murder set out by the legislature, the will of the people through parliament. Together with Manslaughter the maximum penalty is the same of life year’s imprisonment. But in law there is an intention to cause grievous bodily harm which is a breach of the law from which murder unfolds. In manslaughter there is unlawful killing or an assault that leads to the death State v Lopai [1988-89] PNGLR 48 (21 February 1989). There is no intention to cause grievous bodily harm. It is therefore less serious. Sentence passed take due account that tariff and range are to be considered but the ultimate sentence is of the facts and circumstances of the particular offence, Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). There is a distinct parallel between Murder and Manslaughter. Sentences must reflect accordingly not without.
    
18. The sentence is 18 years IHL. Time in custody of 2 years 9-months 1 week 2 days is deducted forthwith. He will spend the balance 15 years 2 months 2 weeks 5 days in jail IHL.
    

Ordered accordingly.

_______________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant