N9729

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 377 OF 2022

BETWEEN:
STATE

AND:
CHARLIE KOPA

Waigani: Wawun-Kuvi, AJ
2022: 26th May, 9th & 30th June
CRIMINAL LAW-SENTENCE-Guilty Plea-Murder, 300 (1)(a) Criminal Code-De facto provocation- Deceased had attacked offender- Offender used knife and stabbed the deceased multiple times- Sentence of 12 years imprisonment imposed

Cases Cited

Goli Golu v The State [1970] PNGLR 653
Manu Kovi v The State (2005) SC789
State v Kiaro [2020] PGNC 277; N8610
State v Kalus [2020] Cr No 998 of 2019 (published in PNGSSD)
State v Esom [2019] PGNC 264; N8041 
State v Gideon [2018] PGNC 242; N7340
State v Elvis Tanabo [2015] PGNC 186; N6083
State v Kais (No.2) [2012] PGNC 325; N5178 
State v Lagu [2011] PGNC 80; N4354
State v Matai [2011] PGNC 26; N4256
Tanabo v State [2016] PGSC 61

References

Criminal Code Ch 262
Criminal Justice (Sentences) Act 1986
Counsel

Ms Gretel Gunson, for the State
Mr Jimmy Rupavele, for the Offender
DECISION ON SENTENCE

30th June, 2022

1.	WAWUN-KUVI, AJ: Charlie Kopa (the offender) fought with Memafu Murphy Lae (the deceased). The offender and others then chased the deceased towards the Gerehu Sports Centre. Police officers in a police vehicle followed the men. The other males upon seeing the police vehicle dispersed.  The offender however pulled out a small knife and proceeded to stab the deceased multiple times on various parts of his body. The offender stopped when one of the police officers discharged a firearm into the air. The offender was arrested, and the deceased was rushed to the hospital. The deceased subsequently died from the injuries he sustained.

2.	The offender pleaded guilty to these facts and so I must now decide the appropriate penalty.

The Charge

3.	The offender pleaded guilty and was convicted of Murder under section 300(1)(a) of the Criminal Code.
Penalty

4.	The maximum penalty is life imprisonment.

5.	The maximum is reserved for the worst case: see Goli Golu v The State [1970] PNGLR 653. This is not such a case.

Submissions
State’s submissions

6.	The State submits for a term of imprisonment between 20-30 years.

7.	In mitigation it was submitted, that the offender is a first-time offender and he pleaded guilty.

8.	The State submitted that factors in aggravation were that the prisoner was armed with a dangerous weapon namely a knife, he intended to cause grievous bodily harm, he stabbed the deceased multiple times on various parts of the body, the deceased was stabbed on vulnerable parts of his body, excessive force was used, the deceased died the same day, and that the offence is prevalent.

9.	The State refers the Court to the following cases:

10.	State v Elvis Tanabo [2015], Polume-Kiele, J: The offender pleaded guilty to the murder of his wife. He cut her body using a bush knife following a domestic argument. She died because of her injuries. He was sentenced to life imprisonment.

11.	The offender appealed this sentence in Tanabo v State [2016] PGSC 61; SC1543 (28 October 2016), and the sentenced was reduced from life imprisonment to 20 years. The Supreme Court was of the view that whilst it was a heinous offence, it did not fall into the worst category.

12.	State v Lagu [2011], Cannings, J: The offender pleaded guilty to murdering a fellow villager. The deceased was listening to people speak at a village gathering. The offender who was drunk walked by and swore at the group. He was ignored. He then returned with a bush knife and cut the deceased. The deceased died as a result. He provided no reasons for his actions and there no expression of remorse. He was sentenced to 20 years imprisonment.

13.	State v Matai [2011], Cannings, J: The offender pleaded guilty to the murder of his brother-in-law. He was upset at the treatment his sister by the deceased. On the day of the offence, he came upon his brother collecting coconuts in his plantation. He argued with the deceased. He then cut the deceased using a bush knife on various parts of the body. He was sentenced to 22 years imprisonment.

14.	The cases submitted by the Prosecutor are distinct to the present case. The offender in this case, was attacked by the deceased. The deceased struck the victim on the head with an iron bar. The attack on the offender was a result of the deceased harassing vendors at the market including the offender’s wife. State v Elvis Tanabo is distinct because it was a death arising from a domestic setting.
 
 Defence submission

15.	Mr. Rupavele submits for a term of imprisonment between 10-15 years.  He submits that the Court consider that the deceased was the aggressor. He was terrorizing the market vendors on the day of the incident. That the deceased struck the offender on the head with an iron bar. These factors indicate the presence of strong de facto provocation.

16.	He submits that the circumstances of the case do not warrant suspension of any part of the sentence. He nonetheless asks the court to consider the peculiar circumstance of his client’s case and impose an appropriate sentence.

The following cases were cited:

17.	State v Kiaro [2020], Narakobi, J: The offender was with others. They approached the deceased who was having dinner with his friends. They confronted the deceased. The offender stabbed the deceased on his left arm and chest. There was an element of de factor provocation. The offender’s home was burnt down because of the death. The Court considered his guilty plea and that he had no prior convictions. He was sentenced to 13 years imprisonment.

18.	State v Esom [2019], Numapo, AJ (as he then was): The offender pleaded guilty to murder under section 300(1)(a) of the Criminal Code. The offender was part of a group of men who went to commit robbery. During the robbery, an accomplice shot and killed the deceased. The offender was sentenced to 25 years imprisonment.

19.	State v Gideon [2018], Numapo, AJ: The offender Willie Gideon was drunk and asked one of the deceased friends for money. His demanded was refused. He swore at the deceased friend. He was then assaulted. He left and he returned with his co offender Sony Yauri. They chased the deceased and his friends. Sony Yauri threw stones at the deceased friend, whilst Willie Gideon took out a knife and stabbed the deceased. Both offenders were sentenced to 18 years imprisonment. 

20.	 The case State v Kiaro [2020] bears similarities to the present case. However, the degree of provocation is unknown. State v Esom [2019] is factually distinct and in State v Gideon [2018], the offender was always the aggressor or instigator.

Comparative cases

21.	Additionally, are the following cases which involve guilty pleas and where the deceased persons have contributed in some way to their own demise.

22.	State v Kalus [2020], Numapo, J: The offender was smoking and threw a cigarette butt. The cigarette butt landed on the deceased. The deceased swore the offender. An argument ensured. The deceased charged towards the offender to fight. The offender grabbed a knife and stabbed the deceased. The offender was 18 years old at the time of the offence. The offender was sentenced to 13 years imprisonment. Time spent in custody was deducted. Six years of the balance was suspended.

23.	State v Kais (No.2) [2012], Toliken, J: The offender was convicted following a trial. The offender and the deceased were consuming alcohol with one other. The deceased asked for money to purchase more alcohol. When he was told that there was no money, he became angry. He took out a knife and swung it at the offender. The offender stepped back and avoided the blade. The deceased did not relent. Another person threw stones at the deceased which caused him to drop the knife. The offender picked up the knife and stabbed the deceased on the hand, back and head. The offender was sentenced to 12 years imprisonment.

Sentencing Guidelines

24.	 Sentencing guidelines assist the Court to provide parity in sentence. They however do not curtail the discretion of the sentencing court. The determining factor is the peculiar circumstance of each case.

25.	The following guidelines for murder were suggested in the Supreme Court case of Manu Kovi v The State (2005) SC789:

Category 1	12 – 15 years	
Plea
Ordinary Cases
Mitigating factors with no aggravating factors	•	No weapons used
•	Little or no pre-planning
•	Minimum force used
•	Absence of strong desire to do GBH	
Category 2	16 – 20 years	
Trial or Plea
Mitigating factors with aggravating factors	•	No strong intent to do GBH
•	Weapons used
•	Some pre-planning
•	Some element of viciousness	
Category 3	20 – 30 years	
Trial or Plea
Special Aggravating factors
Mitigating factors reduced in weight or rendered insignificant gravity of offence	•	Pre-planned viscous attack
•	Strong desire to do GBH
•	Dangerous or offensive weapons used eg. Gun or axe
•	Other offences of violence committed	
Category 4	Life Imprisonment	
WORST CASE – Trial or Plea
Special aggravating circumstances
No extenuating circumstances
No mitigating factor or mitigating factors rendered insignificant by gravity of offence	•	Pre-mediated attack
•	Brutal killing in cold blood
•	Killing of innocent harmless person
•	Killing in course of committing another serious offence
•	Complete disregard for human life	

26.	The guidelines in Manu Kovi appear to place this case in the higher range of category 2 and the lower range of category 3.

Personal Antecedents

27.	 The Offender is 35 years old and is from Ita Village, Tapini, Central Province. He is a member of the Catholic Church and resides with his family in Tete Settlement, Gerehu, National Capital District. He is married and has a five-year-old daughter.

28.	He is employed in the informal sector. He sells betelnuts, cigarettes and firewood to support himself and his family.

29.	His parents are deceased, and he was adopted by a police reservist. He has five other siblings.

Pre-Sentence Report

30.	 Mrs. Grace Prenai is commended for her comprehensive Pre-Sentence Report which is of assistance to the Court.

31.	She interviewed the offender, his brother Corporal James Sari, his sister Regina Kopa, his wife Veronica John, the deceased cousin’s Miriam Memafu and Kivia Soi.

32.	Corporal James Sari is the offender’s older brother. He is a soldier in the army and is based at Taurama Barracks. He states that his brother is not a criminal and concentrates on taking care of his wife and daughter. He asks the Court to impose a non-custodial sentence so that he can send his brother back to the village.  He will support him to run a trade store.

33.	Ms. Regina Kopa is the offender’s older sister. She states that her brother is not a criminal, and she is concerned for him. She asks the Court to impose a lenient sentence.

34.	Veronica John shares the same sentiments as her sister and brother-in-law. She states that she has a young child and requires the offender’s support.

35.	Miriam Memafu and Kivia Soi ask the Court to impose a custodial sentence. 

36.	The Probation Officer recommends a custodia sentence due to the serious nature of the case.

Allocutus

37.	The offender in Allocutus stated:

“I did not commit the offence for nothing. He himself was looking for trouble, so I did what I did. I did not do anything, and he broke my head. I fell and I got up and did what I did. I apologize for what I did. I will not do it again. I really apologize. I am a family man. Whatever, the decision, it is in your hands. You can make a decision that I will feel happy about it and God can be happy about it.”

38.	I accept that there is some form of remorse considering his admissions to police, his early plea of guilty and his statements to the Probation Officer. He appears to appreciate that he should not have reacted in the way that he did. He regrets that his actions have caused the death of the deceased.

Aggravating Factors

39.	In aggravation is that the offender used an offensive weapon, there were multiple stab wounds to various part of the deceased body which indicate a strong desire to cause grievous bodily harm and that a life has been lost which cannot be replaced.

Mitigating Factors

40.	I find in mitigation, that the offender’s cooperated with police, his early plea of guilty, he has no prior convictions. That there was present strong de facto provocation. 

Consideration

41.	A lot of the cases demonstrate that people in our society resort too quickly to violence as a mechanism for problem solving. That, there is a tendency also to immediately take up weapons of some sort and fight. This case is unfortunate in the sense that the deceased would be alive today had he acted differently towards the vendors at the market. I accept that he had harassed the offender’s wife and child which had provoked an argument. Instead of letting bygones be bygones, the deceased struck the offender on the head with an iron bar. Likewise, when the deceased walked away, the offender should have reported the matter to the police. Instead, he listened to others and decided to attack the deceased. He says that he now regrets his actions. That is the nature of regrets. They are realizations that come too late.
 
42.	I accept that there was no pre-planning. That the offender acted alone whilst others ran off. That the deceased had contributed in a significant way to his own demise. I also consider the offender’s prior good character. 

43.	Whilst the offender’s case may appear to fall within the higher range of the second category and the lower range of the third category in Manu Kovi, each case must be decided according to their own peculiar circumstances. I cannot ignore that there is a strong element of de facto provocation in this case. Whilst the force used was excessive, it is distinct from a case where the offender took time to consider his actions. In this case, he sat bleeding and was urged on by others to respond with violence.
 
44.	In considering the mitigating and aggravating factors, factors that are peculiar to the offender and the foregoing matters, the offender is sentenced to 12 years imprisonment.

45.	In the exercise of my discretion under section 3 of the Criminal Justice (Sentences) Act 1986, I deduct time spent in custody. The offender has been in custody since the date of the offence. In total he has been in custody for 11 months, 1 week and 4 days.

46.	Whilst I consider the views of the offender’s family members, this was a violent offence and is a prevalent offence. A life has been lost and can never be replaced. A clear message must be communicated that not only is the offender’s conduct not condoned, but that people must respect the sanctity of life and find lawful means to resolve their issues. This is not an appropriate case for suspension. 
Orders

47.	The Orders of the Court are as follows:

1.	The Offender is sentenced to 12 years imprisonment.
2.	Pre-sentence custody of 11 months, 1 week and 4 days is deducted.
3.	The Offender shall serve the balance of 11 years, 2 weeks, and 3 days at the Bomana Correctional Institution in light labor.
________________________________________________________________
The Public Prosecutor: Lawyer for the State 
The Public Solicitor: Lawyer for the Defence