N10792

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1231 OF 2022

THE STATE

V

JASON KANUFA

Waigani: Miviri J
2024: 30th April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Plea – Deceased Stabbed in Left Chest by Accused – Sentence on Murder – More Serious Offence than Manslaughter – Less Serious than Wilful Murder – No Material to Warrant Suspension of Sentence – Sanctity of Human Life  – First Offender – Guilty Plea – Prevalent Offence – Deceased 30 year Old – Prisoner 26 years Old – Custodial Sentence Warranted – 19 years IHL – Time on Remand deducted.
Facts
Accused and deceased arguing. He walked away the accused followed with the small kitchen knife he was armed with stabbing the deceased in the left chest causing internal bleeding from which he died. She intended grievous bodily harm, but death resulted.

Held
Guilty Plea
Single stab.
First time offender.
Prevalent Offence.
19 years IHL.

Cases Cited: 
Yalibakut v State [2006] PGSC 27; SC890 
Kwapena v The State [1978] PNGLR 316 
Angitai v The State [1983] PNGLR 185
Avia Aihi v The State (No 3) [1982] PNGLR 92
Lawrence Simbe vs. The State [1994] PNGLR 38
Kumbamong v State [2008] PGSC 51; SC1017 
Simon Kama v The State (2004) SC740
Kovi v. State [2005] PGSC 34; SC789
State v Hagei [2005] PGNC 60; N2913
Tardrew, Public Prosecutor [1986] PNGLR 91 
Public Prosecutor v Hale [1998] PGSC 26; SC564 
Oakare v State [2001] PGSC 21; SC1010 
Enn v The State [2004] PGSC 36; SC738 
State v Mohavila [2006] PGNC 106; N3385 
State v Harisu [2006] PGNC 137; N3168 
State v Karu [2024] PGNC 38; N10674

Counsel:
S. Suwae, for the State
T. Yapao, for the Defendant

SENTENCE

30th April 2024

1.	MIVIRI J: 	This is the sentence of Jason Kanufa of Fane, Goilala, Central Province who pleaded guilty that she stabbed the deceased in the left chest causing   bleeding into the left lung from which he died. She had intended to cause Grievous bodily harm, but death ensued. 

2.	The conviction was sustained for Murder pursuant to section 300 (1) (a) of the Criminal Code Act, which was in the following terms: -

(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.

3.	Relevantly on the 19th June 2020, at dark street 6-mile National Capital District there was a disco and the deceased and prisoner both attended. The party started at about 10.00pm and ran until 4.00am next morning. In the course at about 3.00am and 4.00am Saturday 20th June 2020, a fight broke out inside the disco arena. The Accused came out. Upon seeing the deceased, Sebastian Auai with his friends, she asked them to go back inside and check one of her sisters. They refused and did not comply. She got agitated and swore at them. The deceased was not happy and argued with her. After which the accused walked ahead down the street. The deceased followed a few minutes drawing his nephew one Aaron David to follow him trying to catch up with him. Accused was standing at the end of the road. And turned swinging a small knife to stab the deceased and run away. He suffered an incision to the upper lobe of the left lung because of a deep penetrating stab wound to the left anterior chest. She had deliberately armed herself with the small knife and stabbed him. She intended to cause grievous bodily harm which resulted in his death. Her actions contravened section 300 (1) (a) of the Criminal Code.

4.	She admitted the offence to police when interviewed on the 20th June 2020. She gave herself up to police at 6 mile who arrested her for the offence. And which was secured with the assistance of one Sakami son of the deceased. That admission has been followed up in this guilty plea before me. She accepts responsibility without any qualification for the death of the deceased. It is an unequivocal plea. The facts to which she pleads settles that she is guilty as she has provisionally entered: Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006). The injury leading to death set out by the medical report of Doctor Joe Norrie Registrar of the Port Moresby General Hospital Mortuary Section autopsy conducted of the 02nd July 2020 of Sebastian Auai aged 30 years old established that the direct cause of death was Left hemothorax 1200mls. Which was due to incision to the upper lobe of the left lung due to a penetrating stab wound to the left anterior chest.

5.	One of the most venerable parts of the human body is the lung material and underpinning human life because without air, there is no life to a human being. It is the first inhale at birth with a burst of the lungs, life into this world. And to stab the chest into the lungs as here is no light matter. A human being whether man or woman, weak or strong is dependent for his survival on that fact. To deny a fellow human being existence by drawing out that roots is not an accident upon the author, the prisoner. She is not a stranger to the deceased having intermarriage relations depicted out by the presentence report filed. Therefore, to swear at him and turn him into agitation but not violence is in his favour. It is against her to take violent in this manner. The kitchen knife is readily available to any man or woman. It is a dangerous weapon readily available to be used as here. It must be suppressed and taken out of the grasp of a potential assailant. The law will impose by strong punitive and deterrent sentence bolding the intent of the legislature under section 300 (1) (a) of the Code. The prisoner is the author of her life. She has chosen to take a fellow human being out of a span of 30 years existence continuing but terminated by her discretion. She will not torment further because it will be bold that section 35 is the right to life by the Constitution. She is no less a human being than the deceased. She will return to her family and child, not the deceased. The gravity of the offence of homicide will not be balanced entirely on her side but also of the deceased.

6.	She had no justification for the way that she acted and stabbed him. He was not threatening nor was he in any position to bring harm to her: Kwapena v The State [1978] PNGLR 316 self- defence was in applicable so too provocation Angitai v The State [1983] PNGLR 185. I confirmed the guilty plea and convicted her as pleaded to. She is a first offender who has pleaded guilty to the offence of murder. It carries the maximum penalty of imprisonment of life years. And she could be sentenced to life imprisonment if the facts here warrant that it is the worst case of murder, Avia Aihi v The State (No 3) [1982] PNGLR 92. I do not consider that would be the case here. But rather warrant determinate term of years is appropriate. In this regard the facts and circumstances that come out here will draw the appropriate and proportionate sentence for the offence: Lawrence Simbe v The State [1994] PNGLR 38; Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008); Simon Kama v The State (2004) SC740. But it is relevant to consider range and tariff set out by Kovi v. State [2005] PGSC 34; SC789 (31 May 2005) which would level this out as category 2. Because there is use of the knife with intent to do grievous bodily harm. There is viciousness in the execution of the offence but is not as grave as Kama’s case (supra).

7.	It remains that no sentence imposed will ever bring back the deceased to his family and to life before that stab delivered here by the prisoner. She is a first offender 26 years old originally from Fane in the Goilala area of Central Province. She was resident at Six Mile Saraga dark street. She is not married but has a 9-year-old son who is attending primary school outside of Port Moresby. She is educated to grade 8 at the Tapini High School with no formal employment record. These are details that are set out in the presentence report that was ordered by Court on the application by the prisoner. It is clear that the families are interrelated through marriage and there has been forgiveness and willingness to come together through reconciliation customarily that has not been done since the offence was committed. This is the view of the elder brother of the deceased one, Joe Awai Mob. And the recommendation by the report is that the prisoner is apt for a sentence on probation. Because she is not a threat to the community. That maybe so but taking the life of another is a very serious matter.

8.	And must be protected to give effect to section 35 of the Constitution, the right to life. Further its prevalence demands that stern deterrent and punitive sentences are imposed to reflect that fact. To simply give effect to the recommendations of the presentence report will be parting company with the facts and circumstances of the case. She stabbed him in one of the most venerable parts of the human body, where the lungs are under the chest. And the facts to which She pleaded guilty do not depict that she was justified to stab as she did. Nor is it a case similar to State v Hagei [2005] PGNC 60; N2913 (21 September 2005). It is not an extenuating circumstance that the immediate relatives of the deceased have forgiven her for taking the life of the deceased. Nor would it be basis for the suspension of sentence where a life is taken as here. Particularly against the backdrop of section 19 (6) of the Criminal code where 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.

9.	There is no evidence that personal deterrence reformation and rehabilitation will take place should the sentence be suspended in the case of the prisoner. There is no evidence that there are schools that She will attend to settle in life. Or give effect to rehabilitation. Because it is my view that a prisoner will not be given suspended sentence without conditions of that suspension. They will make the sentence work. Responsibility must be attached to the wrong committed. And corrections must be made to give effect to the sanction that the law prescribes. It will meaningfully give effect to punishment as well as reforming the prisoner. There is no evidence to this effect in the presentence report filed before me. Taking the word of God is one thing but living it in life is another aspect altogether. Hence the character evidence of both Full Corporal Rose Filoua Female Wing Division, and Corporal Greg Teine Acting Chaplain looks within the prison, but there is no material for this to continue outside the Jail. Which will give effect to the suspension of sentence. Life of a human being is not a cheap commodity to be taken at the pleasure of the prisoner. He must account for his wrong sanction prescribed by the legislature, the will of the People, here life imprisonment. My prerogative is not to rewrite the sentence, but to apply it as it is prescribed and sanctioned. I have no material nor evidence warranting suspension of the sentence: Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). The presentence report does not lay out the basis for suspension of the sentence.

10.	This is an offence that was committed by the prisoner knowing fully what She was doing when he swung the knife at the deceased. There is no diminished responsibility here. Nor is this a case of voices telling the prisoner to do what he did: Oakare v State [2001] PGSC 21; SC1010 (9 December 2001). Here is a deliberate swinging with the knife that lands on the left side chest of the deceased causing the injuries that lead to his demise. To my mind this is not a case likened to Enn v The State [2004] PGSC 36; SC738 (1 April 2004), where there was a fight between the appellant and the deceased stopped, and the appellant reignited and chopped off the neck of the deceased. He pleaded guilty and was sentenced to 20 years IHL for murder. That is more serious than the present scene. Nor would it be similar to State v Mohavila [2006] PGNC 106; N3385 (25 October 2006), where during an argument over sorcery prisoner cut the deceased on his left hand. He retaliated and cut the prisoner on his left side of his head then retreated behind another and dropped the knife. Prisoner picked up the knife and cut deceased on the forehead twice from which he died. Life imprisonment was imposed for murder. That is markedly very serious compared. You were not challenged or provoked to fight as in State v Harisu [2006] PGNC 137; N3168 (24 October 2006) where 22 year was imposed for guilty plea to murder. 

11.	I am not considering sentence for Manslaughter as in 18 years imposed on a guilty plea State v Karu [2024] PGNC 38; N10674 (6 March 2024). All have life imprisonment as maximum sentence. But are different offences in law. Therefore, must be treated differently in the sentence that is passed. This is a guilty plea to Murder pursuant to section 300 (1) (a) of the Code. The prisoner has entered a guilty plea to it. And will be sentenced for murder, not manslaughter or wilful murder. There is clear demarcation between all homicide offences. This sentence is for murder appropriate by the circumstances and facts here set out.

12.	I consider that a fair and justice sentence in view of all above is 19 years IHL. I order that the time that She has spent on remand awaiting will be deducted forth with She will spend the balance in jail in hard labour. Warrant will issue accordingly.

Ordered Accordingly
__________________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant