N9826

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 549 OF 2021

THE STATE

V

EDMUND GORDON KAIRU

Vanimo: Thoke, AJ
2022: 9th &16th Feb, 6th & 17th June

DECISION ON SENTENCE

CRIMINAL LAW- Practice and Procedure - Section 300(1)(a) of Criminal Code Act- Murder- What is the appropriate sentence - guilty plea –-use of timber to harm -sentencing guidelines- category 1-no strong intent to cause GBH- custodial sentence - discretion applied- Section 19 of CCA- compensation paid-partly suspended sentence- 12 years with 7 years suspended.

Brief Facts:

This is case on Murder which took place on the 2nd of December 2019, after a heated argument erupted over food between the Accused and the Deceased who was under liquor, at their home in Waraston settlement, Vanimo, West Sepik Province, in which the Accused picked up a timber and struck it on the Deceased’s abdomen, gradually causing death. 

Cases Cited:

Manu Kovi-v- The State (2005) SC789
Public Prosecutor v William Bruce Tardew [1986] PNGLR 91
State v Dani [20210 PGNC 254; N8469
State v Ismael Johnny Neora CR No.1341 of 2018
State v Muturu [2012] PGNC 322; N5163
State v Pinapang (2017) PGNC; N6616,
State v Willie; Cr.NO 753/20

Legislations Cited:

Section 300 (1)(a) of the Criminal Code Act
Section 19 of the Criminal Code Act
Criminal Compensation Act

Counsel

Ms. Linda Maru, for the State
Mr. Paul Moses, for the Accused

17th June, 2022

1.	THOKE AJ: This matter came for hearing on the 17th June 2022 for decision on an appropriate sentence to be imposed on the Prisoner. 

2.	Prisoner was charged under Section 300(1)(a) of the Criminal Code Act and arrested on 9th December 2012. To this date he has served 2 years, 6 months in custody.

3.	I quote Section 300(1)(a) of the Criminal Code Act:

S.300. Murder

(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;
Penalty: Subject to Section 19, imprisonment for life

INDICTMENT & PLEA 

4.	Indictment of the Prisoner was presented on February 9th 2022 at Vanimo National Court on one count of Murder, pursuant to section 300(1) (a) of the Criminal Code Act.

5.	The indictment reads as follows:

“EDMUND GORDON KAIRU of WARASTON SETTLEMENT, VANIMO, WEST SEPIK PROVINCE, stand charged that he on the 2nd day of December 2019 at Waraston in Papua New Guinea murder LESTER KAIRU.

6.	Accused Pleaded Guilty in accordance with his Counsel’s instruction.

ANTECEDENTS

7.	The prisoner was 21 years of age at the time of the offence, and was living with his Aunty and Uncle, Gordon and Hilda Kairu, in Waraston settlement, Vanimo town, where Hilda’s husband who is from Gulf province, was born and raised.

8.	He is the son of Hilda Kairu’s brother, who lives with his other 3 children in East New Britain, their hometown. He was taken in by Hilda and her husband to pursue his grade 9 education in Vanimo.

9.	He is a first-time offender, with no criminal record to his name.
 
PRE-SENTENCE REPORT

10.	I have thoroughly perused the Pre-Sentence Report (PSR) presented by the Senior Probation Officer (PSO), Ben Kasandra, of the Community Based Corrections & Rehabilitation Service, and find that it provides a positive description of the Prisoner as a suitable candidate for Probation.

11.	The interview conducted by Mr. Kasandra on Gordon and Hilda Kairu, the Guardians (Aunty & Uncle) of both the Prisoner and the Deceased and recounted in paragraph 10 of the PSR, carries more weight in determining a suspension of sentence.

12.	The narrative provided therein, is central around the notion that the incident was not premediated nor intentional, as they were both brothers living and eating under the same roof, and that, it is an internal family issue the Kairu family as a whole take full responsibility for, with the intent to settle it amicably. They also acknowledge that the Deceased was known for his notorious acts in the community and singled out as a ‘wanted man’, whereas the Prisoner was of the opposite nature, coupled with a speaking disability (stutter), who was not able to freely blend in or associate with other people or peers, let alone, commit such an offence. 

13.	 I quote the full paragraph 10 of the Pre- Sentence Report, as it appears convincing to me:

“This death arose within our Kairu family and we shoulder full responsibility for this tragedy. Edmund and late Lester Kairu were our sons sleeping and eating together in one house and kitchen. The deceased was taken care of by us after his Father and elder brother, James Kairu passed away and his mother left for her Paup village, Aitape. Edmund was taken to Vanimo by us in October 2019 to pursue further Education in the new year. Late Lester has a criminal record with Police. In 2017, he was charged for killing another youth at Paup village, Aitape following a drug deal that went wrong. He was acquitted in June 2018 by the National Court sitting in Aitape due to lack of evidence. Lester came to Vanimo after his release, despite our plea not to come because of the killing of the youth from Poko which he was suspected for. 
Edmund is young disciplined, unlike late Lester. He does not smoke, chew or consume alcohol. Due to his disability” stutter” and first time in Vanimo, Edmund did not go around town or mix around with other peers in the community. He assisted in cleaning and taking care of our properties hoping that we will put him in school February 2020.
Lester came home drunk in the early hours of that morning and started swearing at us and destroying household items after finding there was no food left for him. When he tried to attack Hilda with a grass knife, Edmund intervened and tried to dislodge the knife with a piece of firewood he took from the fire place, hitting him on his hands. According to local custom from this area, Lester was a wanted man following the previous death of a boy from Poko village in Vanimo which he was arraigned for. We believe sorcery was the cause of his death.
Therefore, we ask this Honorable Court for leniency and allow the prisoner back to the Community by way of a non-custodial sentence in order to complete his Secondary education. Late Lester’s mother and his younger sibling support our call and have left it open for us to complete the remaining compensation payment.”

14.	K1,600. 00 was paid as a “bel kol” soon after the Deceased died.

15.	The Prisoner’s parents are willing to meet the remaining balance of K3,400.00. His biological father, Paul Pasio, who is a Police Reservist at Kimbe, pledges to pay the remaining balance off, to the immediate relatives of the Deceased, and they are willing to accept the compensation.

16.	The Pre- sentence Report further reveals that the Deceased’s immediate family only ask that the balance of the compensation payment be made, while also in support of a non-custodial sentence to be imposed on the Prisoner, as requested by the guardian and parents of the Prisoner, so that he can continue with his secondary education. 

‘SUBMISSION ON SENTENCE’ BY PROSECUTION & COUNSEL FOR DEFENCE

17.	Counsel for State, Ms. Linda Maru and Counsel for Defence, Mr. Paul Moses made submissions respectively, on the Aggravating and Mitigating factors surrounding this case, to assist this court to decide on an appropriate sentence to be imposed on the Prisoner. 

18.	The Aggravating Factors found in both Counsels submissions, and in unison to my understanding of the nature of circumstances surrounding this case are:

•	The victim died from rapture of spleen
•	Prevalence of the offence 
•	A piece of timber was used by the Prisoner 
•	Prisoner had the intention to cause grievous bodily harm

19.	The Mitigating Factors, also submitted by both Counsels, and considered to be in favor of the Prisoner are as follows:

•	He is a first-time offender 
•	He expressed remorse in Court to the family of the Deceased
•	His did an early guilty plea
•	Acted alone
•	There are some elements of De facto provocation
•	Prisoner caused death in the defence of his Aunty and Guardian 

20.	I have taken into consideration the sentencing guidelines set up by the Supreme Court in the case of Manu Kovi-v- The State (2005) SC789, and also included in both Counsels submission.

21.	I extract the table from Counsel for State’s submission for ease of reference.

CATEGORY	MURDER	
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 intent to do GBH 	
Category 2	16-20 years	
Trial or Plea
Mitigating factors with Aggravating factors	
No strong intent to do GBH 
Weapons use
Some pre- planning
Some elements of viciousness	
Category 3 	20-30 years	
Trial or Plea
Special Aggravating factors
Mitigating factors reduced in weight or Rendered insignificant by gravity of offence	
Pre- planned vicious attack
Strong desire to do GBH
Dangerous or offensive weapon used
Other offenses of violence committed.	
Category 4	Life imprisonment	
Worst Case- Trial or Plea
Special aggravating factors
No extenuating circumstances
No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence 	
Pre -meditated attack
Brutal killing in cold blood
Killing of innocent, harmless person
Killing in the course of committing another serious offence
Complete disregard for human	

22.	I am satisfied that the crime committed falls within the mid-range of Category 1, which carries a sentence of 12 -15 years.

23.	 Counsel for Defence, Mr. Moses, submitted that this is not a worst case of Murder, considering the circumstances and no strong intent to cause Grievous Bodily Harm. He then referred me to several cases. I find only two cases relevant in light of the circumstances of the crime and years suspended. The case of State v Willie; Cr.NO 753/20 and State v Muturu [2012] PGNC 322; N5163. 

24.	Both cases carry similar elements pertaining to Murder, whereby, I must say, the sentence imposed is proportionate to the circumstances of the crime. The Court in both cases found the Mitigating factors to be weighing better against the Aggravating factors, thus sentence was decided appropriately, 12 years with 6 years suspended in the State v Willie, and 13 years with 5 years suspended in the State v Muturu, respectively. 

25.	I am of the view that the above case laws are relevant to drawing a decision on sentence in this case.

26.	 The Prosecution cited 3 cases in her submission denoting that a higher sentence is appropriate.  In the State v Dellesalle Kiaro [2020] PGNC 277; N8610 case submitted, the death of the victim resulted from stab wounds to his right arm and his left chest after confrontation with the Prisoner. In retaliation, the Prisoner’s family home was burnt, in which his lawyer submitted for a 10 –year partly suspended sentence, however, he was sentenced to 13 years in hard labor, less the period spent in custody.  The Court in this case did not consider the loss of his family home as a pressing concern when weighed against the gravity of the aggravating factors present; that an offensive weapon was directed at the chest, the prisoner committed the offence in the company of others, the prevalence of offence in that area and more importantly, the family of the deceased were not willing to accept compensation. In other words, the aggravating factors weighed better against the mitigating factors, thus the sentence is appropriate considering the circumstances of the crime.

27.	Further, Ms. Maru referred me to two other cases as well, State v Pinapang (2017) PGNC; N6616, and State v Ismaek Johnny Neora CR No.1341 of 2018. I have read them and find that the nature of circumstances, and aggravating factors warrant a higher sentence.

28.	In contrast, this case is less severe and cannot be used on the same scale as the 3 cases cited above by the Prosecution. 

29.	The case laws and precedents I have discussed here, in respect to the circumstances of this case, will adequately assist this Honorable Court to decide an appropriate sentence. 

30.	Further, Mr. Moses, submitted that the Prisoner should be given a normal sentence of 10-12 years. He added that, invoking section 19 of the Criminal Code Act, this Court has the discretion to suspend part of the sentence, with the proposition that the mitigating factors in this case outweigh the aggravating factors.

31.	I will provide further reasoning in the following paragraphs, in resonance with the Counsel for Defence’s proposition and submission. 

SENTENCE

32.	Considering the discussions made above, in light of the Pre– Sentence Report and both Counsels slightly differing submissions, I will use them as guidelines to decide an appropriate sentence for the Prisoner.

33.	I note in this case, that the victim and the prisoner are from the same family who argued over food, whereby in the process of arguing, the Prisoner in defense of his Aunty getting in the way, hit the Deceased on the abdomen, with a piece of timber, which gradually led to his death. He thought he was merely defending, but unfortunately led to his death, hence I agree with Counsel for Defence that this is not a worst case of Murder that warrants a maximum of life imprisonment, however the penalty imposed must be solid enough to deter others to repeat such nature of offence.

34.	The Pre-Sentence Report’s plea for leniency, as to allow the Prisoner to go back to the community by way of non-custodial sentence, basically to complete his secondary education, cannot be granted. The reason being simple; the Prisoner is charged for Murder, which carries a maximum sentence of life year. No amount of remorse or compensation can bring back a life, thus as indicated in the discussed cases, a non- custodial sentence is rarely given in Murder cases. Sentence given in those cases were all for more than 10 years and part of the custodial sentence were suspended, subject to payment of compensation. In other words, payment of compensation will not reduce the terms of sentence but only play a mitigating role.

35.	Further, I don’t think K5,000.00 adequately compensates the immediate relatives of the deceased, although, the Criminal Compensation Act sanctions a maximum of K5,000.00 as the full compensation measure. The Legislation should be amended to tolerate an increase, to the amount of K10,000.00, and custodial sentence to be separate. This will not only deter prisoners and others from committing similar offences in the future, but essentially cause them to become more responsible for their actions, while also adding to cultivate a safe and secure community and living space.

36.	The Prisoner, in this case, knew well enough that he is a student. He should have exercised his patience before emotionally unleashing his anger by hitting the deceased with a timber. He should have resorted to a better approach, than using the aid of a timber to cause harm, understanding the deceased had bad criminal records and known for his short-tempered attitude, and notorious conducts. If the Deceased had not died, he would have retaliated back in more aggressive manner, in which the Prisoner may have even been a victim of death, himself. 

37.	On the contrary, the Prisoner and the parent’s plea to complete the rest of the compensation payment in the amount of K3,400.00 is considered as a mitigating factor. 

38.	It is safe to say that the only credible factor here, is the amicable nature of understanding that is present between both sides of the parties, whereby the Prisoner’s parents are willing to pay the full sanctioned amount of K5,000.00 as compensation (in which K1600.00 has already been paid as ‘bel kol’), and the Deceased’s immediate family’s willingness to accept that.

39.	Principally, in a Murder case, I cannot suspend the entire sentence imposed. In this case, the provision of a compelling Pre- Sentence Report, and upon considering the Deceased’s immediate relatives’ disposition to accept compensation, I exercise my discretion pursuant to section 19 of the Criminal Code Act to suspend part of the sentence.

40.	The case of the Public Prosecutor v William Bruce Tardrew [1986] PNGLAR 91, gives authority that suspension of sentence is appropriate in 3 categories, 2 which are relevant in this case:

a)	Where suspension will promote the personal deterrence, reformation, or rehabilitation of the offender,
b)	Where the imprisonment would cause an excessive degree of suffering to the offender, because of his bad physical or mental health.

41.	Accordingly, the Orders of the Court are as follows:

1)	The prisoner is sentenced to 12 years imprisonment with hard labour. 
2)	Pre- trial custody of 2 year, 6 months and 6 days shall be deducted. 
3)	The prisoner shall serve 2 years, 5 months, and 24 days in prison. 
4)	The balance of 7 years shall be wholly suspended, and the prisoner shall enter into his own recognizance and released on probation subject to the probation conditions,
5)	The prisoner shall pay K3,400.00 Compensation to the Victim in the presence of the Probation Officer or the Police Informant within 3 months after being released on probation and they shall inform the Vanimo National Court Registry that the order has been complied. 
6)	The prisoner failing to comply to any or all of the orders or probation conditions during the suspended sentence, he will be arrested and brought before the National Court to serve the rest of his term. 

Public Prosecutor:	Lawyer for the State               
Public Solicitor:	Lawyer for the Defendant