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State v Songai (No 2) [2023] PGNC 277; N10444 (18 August 2023)

N10444

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 11 OF 2021

THE STATE

V

LIVAI SONGAI
(NO 2)

Aitape: Miviri J
2023: 17^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 CCA – Not Guilty – Armed with Grass Knife – Chased and Stabbed Deceased Right Side of Hip Perforation of Bowl – Attack in Heart of Town – Protection of the Law – Prevalent Offence – First Offender – Protection of Law & Rule of – No Reason to Attack – Strong Persistence Defiance of Law – Supremacy of Constitutional Right to Life – Strong Deterrent Sentence.

Facts

The accused chased the deceased with a grass knife and stabbed him in the right side on the hips perforating the bowl from which he died.

Held

1. Protection of Law.
2. Sanctity of life.
3. Prevalence of Offence.
4. Strong deterrent sentence.
   

Cases Cited
Aihi v The State (No.3) [1982] PNGLR 92
Kama v The State [2004] PGSC 32; SC740
Java v The State [2002] PGSC 17; SC701
Mangi v State [2006] PGSC 30; SC880
State v Harisu [2006] PGNC 137; N3168
Michael v The State [2004] PGSC 37; SC737
Isaiah v State [2022] PGSC 68; SC2264
Tardrew, Public Prosecutor v [1986] PNGLR 91
Public Prosecutor v Hale [1998] PGSC 26; SC564
State v Hagei [2005] PGNC 60; N2913
Anis v The State [2000] PGSC 12 SC642
Nimagi v The State [2004] PGSC 31; SC741
Kumbamong v State [2008] PGSC 51; SC1017
Kovi v The State [2005] PGSC 34; SC789
State v Malala [2018] PGNC 310; N7414
Simbe v The State [1994] PNGLR 38
Golu v The State [1979] PNGLR 653
Kwapena v The State [1978] PNGLR 316
James v State [2020] PGSC 39; SC1937

Counsel:
D. Mark, for the State
P. Moses, for Defendant

SENTENCE

18^th August 2023

1. MIVIRI J: This is now the sentence of Livai Songai also known as Mando, after trial where he chased and stabbed Billy Metta in the stomach from which he died.
   
2. The facts on arraignment were that on the 12^th April 2019 around 5.00pm, Billy Metta was at Aitape when a vehicle loaded with boys who were armed with bush knives, grass knives, and wire catapults arrived on board. They got off the vehicle and started chasing the people. The prisoner Livai Songai also known as Mando was armed with a grass knife. Which he used to chase Billy Metta together with Ruben Tongam who managed to escape, But the Prisoner followed Billy Metta to the Aitape Soccer Field oval. Billy Metta fell down onto the field and the Prisoner used the grass knife and stabbed the deceased on his stomach and then he ran away. The deceased was taken to the hospital but passed away on the 15^th April 2019 from the damage that was done to the Bowl, (stomach) caused by the stab wound.
   

3. Prisoner intended to cause grievous bodily harm to the deceased resulting in death. Overall, he aided and abetted the others that he came with, by section 7 (1) (a) (b) (c) and (d) of the Criminal Code Act. He is by that section looking at possibly life imprisonment because that is the maximum penalty prescribed by section 300 (1) (a) of the Code. The advantage he has is that if his facts and circumstances are not determined as the worst, he will receive a determinate term of years imprisonment: Aihi v The State (No 3) [1982] PNGLR 92.

4. This is particularly so because the conviction denotes that he caused grievous bodily harm to the deceased. That is the stab wound to the right hip area was life threatening. This is confirmed in the death that has now followed immediately from that wound. What is clear is that the deceased did not do anything to the prisoner so as to cause him to act as he did. The deceased was for all intent and purposes running away from the prisoner. By that overt act he wanted no part of what the prisoner was on about. That is when they a lightened from that PMV he was not responsible for what the prisoner and his group were on about. And the prisoner paid no heed that this was a public frequented area. That not only the deceased but any other member of the public there had their lives threatened by the actions of those who came with the prisoner. Anybody could have been hurt there from the stone throwing that followed when they came. That motivated and extended to what the prisoner did to the deceased. It was in full view of the public and he was not deterred by that fact. He persisted even the words, enough, enough uttered both by the deceased and Ruben Tongam did not stop what he was doing. In fact, he was very determined and persistent to proceed until he had fatally stabbed the deceased in the way described.

5. When the prisoner is determined as demonstrated here without any justification to do what he did here, the law must protect the deceased and any others from this heedless and senseless behaviour. It is not a light matter to take the life of a fellow human being as is demonstrated here. He is the son, brother, immediate relative who will not return to his family ever. Which is not the same for the prisoner, who after due service of the sentence imposed will return to his family. Therefore, the sentence must reflect the sanctity of life enshrined in the highest law of the land the Constitution section 35 Right to life. The motive for the wanton killing maybe related to the incident with a drunken on another vehicle earlier. It is not detailed as to what really happened by the evidence that has been led here. But even then, the deceased had no part to it. The evidence is that he had just come from his home to join his friends the witnesses who were drinking. And he was standing there with them.

6. What is fundamental to all human beings regardless is the right to life by the Constitution. That is not a mockery at the whim of an individual as is the prisoner. This is clearly demonstrated by Kama v The State [2004] PGSC 32; SC740 (1 April 2004), where in the course of an armed robbery the appellant discharged the gun, he had killing the deceased a passenger in the PMV on the Sepik highway. Twenty-five (25) years imprisonment was imposed by the trial Judge confirmed by the Supreme Court dismissing the appeal. This is not a robbery but is like Java v The State [ 2002] PGSC 17; SC701 (20 December 2002) who pursued the deceased with a grass knife because he was told by his wife that the deceased had destroyed his garden. He went looking for the deceased who ran and he pursued caught him cut him several times with the grass knife sustaining 20 years imprisonment on a guilty plea for murder, reviewed to the Supreme Court refusing and confirming that sentence. There was motive but property does not devalue the life of a human being. This is not a case likened to Mangi v State [2006] PGSC 30; SC880 (30 June 2006) where the deceased is stabbed by the appellant whilst in a bear hug in a fight in the chest killing him, 35 years imprisonment was imposed. The appeal was allowed, and 16 years was substituted.

7. The deceased is not fighting the prisoner but fleeing from the actions of the prisoner without any corresponding act on his part. It is not a case as in State v Harisu [2006] PGNC 137; N3168 (24 October 2006) where the deceased had anything to do with the prisoner chasing him or responding to his actions as in 22 years IHL that was imposed upon the prisoner who had gone to shake hands with the deceased who had killed his father. Deceased refused and said like I killed your father, I will do the same to you. Then got an axe and charged at the prisoner a struggle ensued between both. Falling to the ground the prisoner came up with the axe and cut the deceased on the knee and then repeated on his face and jaw area. He pleaded guilty to murder after consideration of Manu Kovi the sentence above drew under the third category.

8. The Courts must not fail in their spirit to the Constitution and to the people and must deliver justice fair and square, because who else will serve the people justice. And the Supreme Court endorsed this in very broad terms saying, “Accordingly, we are of the view that in the light of the fact that more and more murders and wilful murders are being committed, the National Court must seriously look at tougher penalties. It is the view of this Court that the argument of "leaps and bounds" that some Courts apply with respect, is not found in any statute, and certainly not in the Criminal Code. We consider that the legislature, the Parliament, has determined the maximum penalties for homicide cases and other violent crimes in the Criminal Code. The Parliament has also determined that the National Court would have some discretion on sentencing therefore it ensured that the Court’s discretionary power is found in the statute. That is why Courts have been given that discretion under Section 19 of the Criminal Code. Other than what the Parliament has enacted, we should not go outside of the statutes to look for ways to compromise the National Court’s discretionary power of sentencing by using a notion that has no relation to the prevalence of the offence, the quantum leap, the offence under consideration has taken. The Courts have to appropriately respond to the wishes and or calls of the community to increase sentences to meet the ever increase level of such serious crimes as, wilful murder, murder, manslaughter, rape and armed robbery, Michael v The State [2004] PGSC 37; SC737 (1 April 2004).

9. The medical evidence by the third witness for the State Faith Yakam the Health Extension Officer who prepared the medical certificate of death of the deceased Billy Metta is relevant to the sentence of the prisoner in that the deceased Billy Metta was seen at 9.15am. He was stabbed in the right hip region perforating the bowl. He died because his bowl was perforated directly as a result of the stabbing, and the stomach or gastric contents went back up again because of the blockage in the bowl and went into the lung causing his death as a result.

10. The long life ahead of this 26 years old male was abruptly denied by the actions of the Prisoner. He paid nor accorded him mercy but pleads for mercy in the sentence so that he can serve a short time come out and go back to school. In my view that is not real mercy and sorrow for the wrong because he vehemently denied ever stabbing the deceased in broad daylight. It is very late to say sorry in the face of a long time in jail. He does not demonstrate by his allocutus any real mercy, it does not have any real substance to the sentence due him. It does not mitigate the sentence due. He will be sentenced for what he is a defiant person who did not take account nor respected the rule of law, and the protection of law accorded all human beings. He does not deserve any mercy in the sentence due him for the offence. And prisoners in this regard must be shown the door to the rule of the law, especially where there is determination to kill regardless. In this regard I would follow Isaiah v State [2022] PGSC 68; SC2264 (29 July 2022) where 25 years imprisonment was imposed by the trial Judge for the multiple stabbing of a pregnant woman by her husband, for a suspicion of adultery. The 25 years imposed at first instance was confirmed, and the appeal was dismissed. This is not multiple stabbing so will in that regard not add up.

11. There is nothing to be considered in his favour that shows real mercy and tendency to make amends for the wrong he has committed. Because it is my view that when prisoners take it upon themselves in this way to make good a wrong without the hand of the law, but by the same way they have committed the wrong on others, to take the initiative without court supervision to do as is the case here, it must find favour in the sentence that is passed upon them. It is in my view a strong mitigating factor, because these are overt of the intentions to make good a right and start a new in their lives. And in the same way if there is acceptance of their gesture from the side wronged, it must be strong basis to sentence aligning with that course. Here is a prisoner who is a lying deceiving person who defies the truth by bringing extreme lies by his own flesh and blood Dorothy Kamai, his aunty to distort the truth. Creating with defiance an alibi that was never ever there in the first place. This is not about testing the State case but defiant persistence to avoid the rule of the law. Such a person does not deserve the mercy of this Court. He is in my view arrogant and defiant of the truth glaring at him in broad day light. He mercilessly killed a fellow human being. He was defiant of that fact he does not deserve the mercy of this court by those facts. And that will be reflected in the sentence passed upon him now.

12. Sentencing is not about punishment only, but reformation of the prisoner including deterrence of the offence not only from the prisoner himself, but the Community at large. To go one way or combined is really determination of the facts and circumstances peculiar to a case: Tardrew, Public Prosecutor v [1986] PNGLR 91 and that will drive whether a suspended sentence is meted out or not. But it must be guided by a presentence report from the Community to see out, Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). There really is nothing in favour of the prisoner in this regard. He does not have any peculiar and extenuating circumstances: State v Hagei [2005] PGNC 60; N2913 (21 September 2005) that sway, otherwise than a deterrent custodial term to reflect. And in this regard, I do not classify him in the same as Anis v The State [2000] PGSC 12 SC642 (25 May 2000) where the youthfulness of the offenders was not given due consideration in the sentence that was given for aggravated armed robbery of a factory. He is a leader of his own action to the demise of the deceased directly responsible as the author of the death of the deceased. He is not a young at heart who has been lured by adults to commit the offence. The Supreme Court rejected the plea of youthfulness and confirmed the sentence of 50 years for murder in Nimagi v The State [2004] PGSC 31; SC741 (1 April 2004) where prevalence of violence outweighed.

13. In this regard it is my view that the sentences must correlate distinct by the fact’s circumstances. And tariff and range are one of the matters to be considered to the ultimate sentence: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). I do not ignore the account canvas out by the Supreme Court Kovi v The State [2005] PGSC 34; SC789 (31 May 2005). 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 grass knife, a strong intent to do grievous bodily harm. Because He does not stop that he is in a public frequented area in the sight of the public at large including the witnesses. The deceased is no way any threat to him. Because he is fleeing from him. Yet the prisoner pursues him like a pig to be slaughtered for food. He is at the mercy of the prisoner whether he lives from that day onward, or not. The discretion was in the hands of the prisoner who opted to exterminate his life. It reflects his determination to exceed the authority of the law in the commission of a crime. These warrant that the sentence imposed must reiterate the bold observance of the Rule of the law as supreme. When there is determined persistent defiance of the law without heed to common sense and rationality, the sentence must reflect accordingly. And that will be the case against the prisoner here.

14. I reiterate in bold the basic facts of life, we live only once and so our lives are sanctified. Senseless cold-blooded killing must stop. He is a 26-year-old who will not give the support and love to his parents for what they have been to him ever. Nor would he grow old with his loved ones in the way all do in life. He will not reward his parents for what they have been to him ever, no thanks to the prisoner. Therefore, in my view Section 35 Right to Life must be accorded its place in the Constitution a basic right. This sentence will reflect that the intentional taking of life, or as here intent to cause grievous bodily harm, from which death occurs will drive deterrent and stern sentences: State v Malala [2018] PGNC 310; N7414 (16 August 2018). The mercilessly stabbing of the deceased deafening the plea, enough, enough, uttered at close quarters without heed must be accorded a sentence deserving of that conduct against the prisoner. During an armed robbery death resulted 50 years was imposed in Nimagi (supra) confirmed on appeal.

15. I adopt in full the views of the Supreme Court relevant here when it dismissed that appeal, “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.” Nimagi (supra).

16. And rightly the legislature has made the classification in the homicide offences in the criminal code. And therefore, to say there is a category misses that each case will be determined by its own peculiar facts not chained to a category: Simbe v The State [1994] PNGLR 38. I reiterate that the discretion of this Court must be exercised by proper material sanctioned by the rules and evidence before it to accord favour for or against. Because section 19 (6) of the Criminal Code can be considered in favour of a prisoner the sentence will promote personal deterrence or reformation or rehabilitation of the prisoner. And where imprisonment will cause excessive degree of suffering to the offender because of bad health: Tardrew (supra). Here I am convinced that there is nothing apparent or identifiable in this regard in the sentencing of the prisoner. I am not convinced that there is material to sway other than the custodial term due for murder in the light of all set out above. It is my view given all above that the sentence must fit the crime: Golu v The State [1979] PNGLR 653. And that will come out from its own facts and circumstances.

17. Prisoner Livai Songai alias Mando, 22 years old from Prou Aitape was educated to grade 8 in 2019 at the Prou Vokau Primary School. On the afternoon of the 12^th April 2019 between 5.00pm to 6.00pm he accompanied other boys from Prou and opted out to chase and stab Billy Metta to his death on that public soccer field here in the heart of Aitape town. He did not stab because he was defending himself as in Kwapena v The State [1978] PNGLR 316. He was stabbing Billy Metta who had no interest to fight him. He on the other had had clear evidence of animosity by the by the way he was acting leading up to the killing: James v State [2020] PGSC 39; SC1937 (24 April 2020). He was the assailant and intent on doing that because of an earlier incident involving where the beer of drunken in that vehicle he was in was taken so that they returned 5 to 7 minutes later in the vehicle charity 14 and did what they did assaulting everyone anyone with the bush knives and other weapons they had causing all there to flee as did the deceased. What is a bottle of beer to the life of a human being. Even then there was no need to return as they had already departed but to return in another vehicle purposely into Aitape Town and to do what he did must be meted out with the full force of the law. The town is frequented by all manner of people and should not be tormented to the tune of a few. The rule of law is for all without any distinction. This Court will shelter by appropriate sentences to guard.

18. The sentence of Murder pursuant to section 300 (1) (a) Criminal Code Act proportionate to the gravity of the offence due the prisoner Livai Songai alias Mando, for the death of Billy Metta of the 15^th April 2019 is 24 years IHL. And I so impose that sentence upon him.

19. I deduct from that sentence 4 years 4 months 2 days whilst on remand.

20. He will serve the balance remaining in hard in jail of 19 years 7 months 28 days IHL.

Ordered accordingly.

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