N10804

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 825 & 826 OF 2023

THE STATE

V

VULAKUE AKULJE of
HAKWANGE VILLAGE, MENYAMYA,
MOROBE PROVINCE
Prisoner

Bulolo/Lae: Polume-Kiele J
2023:	4th August 2nd, 5th, 13th, 16th, 24th, 25th & 26th October,7th November
2024: 7th February, 19th March, 19th April

CRIMINAL LAW – Guilty Plea – Wilful Murder, Criminal Code Act, Section 299 (1) - The penalty of which subject to Section 19 is imprisonment for life” - Victim cut on the head, neck, left hand and leg, three times and other parts of her body with a bush knife – Victim - sister -in-law. 

CRIMINAL LAW – Guilty Plea – Attempt Murder, Criminal Code Act, Section 304 (a) - The penalty of which subject to Section 19 is imprisonment for life” - Victim sustained contusion to left ear, jaw, right shoulder, stomach, right thigh and left side of her ribs, bleeding in the mouth and teeth marks on both nipples, Victim, and prisoner – wife and husband relationship. 

CRIMINAL LAW- Sentence – Early guilty plea to both offences– First time offender- Incarceration appropriate.

CRIMINAL LAW – Sentence – Life imprisonment- Criminal Code, Section 299 (1) - Criminal Code Act and Section 19

CRIMINAL LAW- Sentence – 8 years – Criminal Code, s 304 (a), Criminal Code and Section 19 – period in custody deducted – balance of term to be served in custody in 

CRIMINAL LAW – Sentence to be served concurrently with life imprisonment imposed for one count of wilful murder, Criminal Code, Section 299 (1) -
Cases Cited
SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418
Avia Aihi v The State [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Goli Golu v The State [1979] PNGLR 653
Manu Kovi v The State [2005] PGSC 34; SC789
The State v Lukas (2022) N10347
The State v Bulu Yasangara (2007) N5478 
State v Komboni [2015] PGNC 63; (17 June 2015) N5991
Kuri Willie v The State [1987] PNGLR 298
Lawrence Simbe v The State [1994] PNGLR 38
Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128
Steven Loke Ume & Ors v The State  (2006) SC836
State v Taulaola Pakai (2010) N4125
Thress Kumbamong v. The State (2008) SC1017

Counsel:
Ms. S Joseph, for the State
Mr. C Boku, for the Prisoner

SENTENCE

19th April 2024

1.	POLUME-KIELE J:	The prisoner pleaded guilty to one count of wilful murder contrary to Section 299 (1) of the Criminal Code and one count of attempt murder contrary to s 304 (a) of the Criminal Code.

Brief facts

2.	The relevant facts put to the prisoner during arraignment which were consistent with his instructions to his defence counsel and contained on the depositions for the plea of guilty were that: On the 7 December 2022 the prisoner, the husband of the wife deceased’s sister (the victim) was seen at Hakwange Village, armed with a coffee branch and a bush knife. He went to the family of the deceased and demanded that they give him the key to their house. As the prisoner approached the deceased’s house, he saw her returning from her coffee garden. The prisoner confronted the deceased, raised his bush knife, and slashed the deceased all over her body. 

3.	The victim was rushed to the Kwaplalim Health Centre but died upon arrival. The medical report confirmed that the deceased sustained bush knife wounds to her head, neck, left hand and leg and spinal cord.

4.	The physical examination conducted by the Health Officer on the ground revealed that the deceased’s head was cut open. The wound measuring 6 cm long and 2 cm deep. Her left hand was severely cut off leaving a tiny bit of skin hanging, her left leg was severely cut off including skin, tissue and bone and she sustained a stab wound measuring 4 cm to her neck and a 3 cm deep ,6 cm long cut on her spinal cord. 

5.	The State says that the actions of the prisoner contravened s 299 (1) of the Criminal Code.

6.	The relevant facts put to the prisoner on the second count of attempted murder during arraignment is that the prisoner is married to the complainant, Selian Wohape and at the time of the alleged offence, the complainant was eight months pregnant with their first child. On Monday, 28 November 2022, at Kuemdi Hamlet, Hakwange Village in Menyamya, the prisoner and his wife were at their kitchen hut when the accused ran outside their hut. It was late in the night when he accused the complainant of extra marital affairs and started assaulting her on her jaw, neck, and stomach. He covered her with a blanket and left her to die inside their kitchen hut. 

7.	The next day, the accused’s elder brother came to check on the couple and found the complainant wrapped in a blanket. The complainant’s parents came and took her to the Kwaplalim Health Centre, and she was admitted. She delivered a baby boy, still born. Physical examination revealed that the complainant sustained black patches (contusion) to both eyes, bleeding from left ear, black patches (contusion) on her jaw, bleeding from the mouth, black patches (contusion) on her right shoulder, teeth marks around both her nipples, black patches (contusion) on her stomach, black patches (contusion) on her right thighs and black patches (contusion) on her left ribs. 

8.	The State says that the actions of the prisoner contravened s 304 (a) of the Criminal Code.

Penalty Provision

9.	The penalty provisions for the two charges are set out as follows:

(1)	Section 299. WILFUL MURDER

“(1) 	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death, or that of some other person, is guilty of wilful murder. A person commits wilful murder shall be liable to be sentenced to imprisonment for life.

(2)	Section 304.	Attempted murder

	A person who-

	(a)	attempt unlawfully to kill another person; or

(b)	with intent unlawfully kill another person does any act or omits to do any act that it is his duty to do, the act or omission being of such a nature as to be likely to endanger another human life, is guilty of a crime.

Penalty:	Subject to Section 19, imprisonment for life.

Committal Court Deposition

10.	The Bulolo District Court Deposition were tendered into evidence by consent which comprised of the following:

(i) 	The Record of interview both the original pidgin and English Version conducted on 27 December 2022 at 2.20 p.m. marked as Exhibit "A" relating to the defendant Akulje Vulakue during which he admitted to using a bush knife to kill one namely Orina Wohape Vanue at Hakwange Village, Menyamya, Morobe at about 3.00 p.m. and attempted murder of one, namely Selian Wohape, at Hakwange Village on 28 November 2022.

(ii) 	The Statements of Detective Senior Constable Willie Glemus dated 6 April 2022, Police Investigator and Policewoman Zeena Runguwa dated 3 January 2023 (Corroborator) who both respectively confirmed the identity of the prisoner and his demeanour following the commission of the offence during the record of interview conducted on 27 December 2022.

(iii)	The Court deposition is the Medical Report and Medical Certificate of Death dated 5 January 2023 prepared Norbert Inoma, Health Extension Officer, Kwaplalim Health Centre of the death of the victim due the injuries sustained. Also included in the Court deposition is the Medical Report on the injuries sustained by Selian Wohape.

11.	Upon the reading of the Committal Court depositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted, and the prisoner was convicted on the charge of wilful murder under s 299 (1) of the Criminal Code and attempted murder under s 304 (a) of the Criminal Code respectively.

Antecedent Report

12.	The antecedent report presented by the State reveals that the accused is married with no children and was educated only up to Grade 3 level of Primary School. He has no prior convictions.

Allocutus

13.	In administering the allocutus, the prisoner was given an opportunity to speak on the question of penalty. The prisoner elected not to speak. However, prior to sentence, Counsel for the prisoner, Mr. Boku submitted that this is a case involving family circumstances and thus requested that the Probation Officer, Bulolo be directed to prepare a Pre-Sentence Report on behalf of the prisoner.

Pre-Trial Detention

14.	The prisoner had been remanded on the 19 June 2023 and has been held in custody for a period of 10 months to the date of this judgment on sentence.

Pre-Sentence Report

15.	The Community Based Corrections Office in this regard was directed by the Court to provide a Pre-Sentence Report which has been made available to this court for consideration. Mr. Jack Micky has put together a pre-sentence report on the prisoner which is appreciated. This Court will take into consideration these assessments in its determination of the severity of the penalty and decision-making process.

16.	 According to the Pre-Sentence Report, the prisoner is adult male, married with no children. He is from Kwendi Village, Ward 13, Opange LLG, Menyamya Morobe Province. He is educated up to Grade 3 and lives in Hakwange, Menyamya. 

17.	The prisoner is a subsistence farmer and depends on his market produce to sustain himself and his wife. 

18.	He does not associate well with other people. He lives by himself with his wife. He is always suspicious of his wife and suspects that she has affairs with other men from his village. He says that at evenings, he hears catcalls with his wife’s name being mentioned by man passing their house. He also says that his wife disappears at evenings and returns home late in the night, so he becomes very suspicious over her movements. So, on this particular night, someone came and called, and the wife left the house and so he waited and when she returned, they had a fight and he attacked her, and she sustained injuries to her body and was taken to the hospital by her parents.

19.	 About 4 months later, after the incident, he went looking for his wife at her parents place but was verbally insulted by his sister- in-law who scolded him by saying, 

“mipla ino laikim ol haf sens longlong man ikam long haus blong mipla. Yu go, yu painim wanem kam long hia”. 

20.	The prisoner explained that this was not the first time that he had been insulted by his in-laws. Therefore, he got angry and swung a bush knife he was holding onto his sister-in-law and in her attempt to prevent the bush knife, lifted her left hand to protect her head and her left hand got chopped off. He then swung the bush knife the second time at her neck area and fatally injured her.

21.	The prisoner does not deny responsibility over the offence, he committed and does not blame anyone for his doing. He does not express any anger over being held in prison. He kept silent when questioned about how he plans to reconcile with the victim and her relatives.

22.	The Pre-Sentence Report summarises the prisoner as a person who lacks confidence and can be easily influenced by others and is emotionally immature. However, in spite of this shortcomings, the Pre-Sentence Report concluded that the prisoner can be considered for a Probation Sentence if the Court considers it.

23.	This is a case of a young man who has intentionally caused the death of his sister-in-law and the attempted murder of his wife.

Mitigation factors

24.	Factors in favour of the prisoner are that he has no prior conviction, has entered an early guilty plea, and had surrendered and co-operated with the Police in their investigation. Further, he is a first-time offender.

Aggravating factors

25.	On the other hand, the aggravating factors against the prisoner are that this was a premeditated attack, in which a dangerous weapon, that is a bush knife was used in the attack. It was a vicious attack and there was a strong desire to inflict grievous bodily harm resulting in the loss of a life. Such an offence is prevalent. 

Issue

26.	The issue for determination is the appropriate sentence to impose on the prisoner.

Sentencing Principles

27.	It is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst type of case, under consideration, (SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v The State [1982] 92, Ure Hane v The State [1984] PNGLR 105, Goli Golu v The State [1979] PNGLR 653. It is also well settled that each case must be treated on its own merits and its own set of facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. The Courts have unfettered sentencing discretion under s 19 of the Criminal Code Act and the Courts are not necessarily bound by the maximum and minimum tariffs suggested by Supreme Courts (Thress Kumbamong v The State (2008) SC1017. 

28.	For this present case, you are convicted for the crime of wilful murder and attempted murder. Both these offences are serious crime for which the maximum penalty prescribed under s 299 (1) (a) and s 304 (a) of the Criminal Code subject to s 19 is imprisonment for life. 

29.	Section 19 discretionary power provisions as to punishments are as follows: 

“(1) 	In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–

(aa) …

(a) 	a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and
(b) 	a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and

(c) 	a person sentenced on conviction on indictment to pay a fine may be sentenced–

(i) 	to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and

(ii) 	instead of being sentenced to be imprisoned until the fine is paid–to be imprisoned for a term (not exceeding the term provided for in Subparagraph (i)) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and

(d) 	a person convicted on indictment of an offence not punishable with death may–

(i)	instead of, or in addition to, any punishment to which he is liable–be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) 	comply with such other conditions as the court may, in its discretion, impose; and

(e) 	a person convicted of any offence on summary conviction may, instead of being sentenced to any punishment to which he is liable, be discharged on his entering into his own recognizances, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a term not exceeding one year; and

(f) 	when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that–

(i) 	he shall appear and receive judgment at some future sittings of the court or when called on within a period specified by the court; and

(ii) 	if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.

(2) 	Imprisonment in accordance with Subsection (1) (c)(i), for non-payment of the fine–

(a) 	shall not extend for a term longer than two years; and
(b)	shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(3) 	In a case to which Subsection (1) (c) applies, the court may give such directions as it thinks proper as to the enforcement of the sentence of imprisonment, including a direction that the person sentenced appear at some future sittings of the court or when called on, by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period or any extension of that period.

(4) 	If under Subsection (3) a person directed to appear, or called on by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period, or any extension of that period, does not appear at the required time and place, a Judge may issue a warrant to arrest him and to bring him before a Judge.

(5) 	Imprisonment under Subsection (1) (d) for not entering into a recognizance–

(a) 	shall not extend for a term longer than one year; and

(b)	shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(6) 	When a court sentences any person convicted under Subsection (1) (d) to a term of imprisonment, it may further order that–

(a) 	the offender be imprisoned for such portion of that term as it thinks proper; and

(b) 	the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1)(d) but further conditioned that, if called on, he shall appear and receive judgment in respect of his service of the portion of the sentence.

(7) 	A Judge may, on being satisfied that the offender has committed a breach of any of the conditions of a recognizance under Subsection (6), forfeit the recognizance and commit him to prison to undergo the suspended portion of his sentence or any part of it.

(8)[9] [Repealed.]

(9) 	Notwithstanding that restriction of movement is not specified as a punishment for an offence, a court may, in addition to any other punishment or punishments imposed, also impose restriction of movement in accordance with Section 600.

(10) 	When a court is considering the punishment or punishments to be imposed in any case it shall also consider whether, in the circumstances of the case, restriction of movement is an appropriate punishment.

30.	As you are convicted of two separate charges, “wilful murder (299(1) and attempted murder (s304(a) of the Criminal Code, I will in this judgment address the ‘wilful murder’ charge first and followed by the ‘attempted murder” charge.  

Count 1-	Wilful Murder, s 299 (1) – Criminal Code

31.	The crime of wilful murder is a serious crime. Thus the question for this court is to consider whether this present case falls within the worst type of case  that warrants the imposition of the maximum penalty of life imprisonment as held in in SCR No 1. Of 1984: Re Maximum Penalty [1984] PNGLR 418; Goli Golu v the State  [1979] PNGLR 653; Avia Aihi v The State  [1982] 92; Ure Hane v The State  [1984] PNGLR 105; Lawrence Simbe v The State [1994] PNGLR 38; Steven Loke Ume & Ors v The State (2006) SC836 and Manu Kovi v The State  (2005) SC789. 

32.	Similarly, it is also important to ensure that when the Court exercises judicial discretion, careful consideration must be taken particularly in situation where there are issues relating to the sanctity and value of human life. Human life is far more precious and valuable than material things and as such no amount of remorse or compensation will restore the life lost. Therefore, the unlawful taking of another person’s life is a serious and horrendous crime and the perpetrator must be punished accordingly.

Sentencing guidelines

33.	The Supreme Court has specifically established sentencing guidelines relating to the crime of wilful murder. These guidelines set out in the case of Manu Kovi v The State (2005) SC 789. In that case, the Supreme Court has established a sentencing guideline for homicide cases which had left the National Court with wide discretion available to it when fixing a sentence. In that, the Supreme Court did carefully consider the sentencing guidelines and gave detailed sentencing guidelines for manslaughter, murder and wilful murder which is useful to consider and can be useful when sentencing for wilful murder. The various guidelines to be taken into consideration in order for the Court to determine the appropriate sentence for wilful murder offences are on the following scale of sentence for a conviction of wilful murder. 

Sentencing tariff – Wilful murder (Manu Kovi v The State (supra)) guidelines

Category 			Wilful Murder	
1	Plea:
-	Ordinary cases
-	Mitigating factors
-	No aggravating factors.
	-	No weapons used – 

-	Little or no pre-planning – 

-	Minimum force used.

-	Absence of strong intent to do grievous bodily harm.	15 to 20 years
	
2	Trial or plea – 
-	Mitigating factors with aggravating factors.	-	Weapons used – 

-	Some pre-planning – some element of viciousness.

-	Strong desire to do grievous bodily harm –	20 to 30 years
	
3	Trial or plea 
-	Special aggravating factors – 
-	Mitigating factors reduced in weight or rendered insignificant by gravity of offence.
	Brutal killing –Killing in cold blood.

Killing of innocent, defenceless, or harmless person

Dangerous or offensive weapons used, e.g., gun, axe – 

Killing accompanied by other serious offences.

Victim young or old

Pre-planned and premeditated.

Strong desire to kill	Life imprisonment
	
4	Worst case 
Trial or plea – 
Special aggravating factors
No extenuating circumstances.
No mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.		Death	

Count 2 – Attempted Murder, s 304 (1) (a) – Criminal Code

34.	Regarding what guidelines to adopt and or apply in determining sentence for the charge of attempt murder, I refer to a number of case authorities which had deliberated on these guidelines as pointed out by Kandakasi J (then) in the case of The State v Elizah Ute (2004) N2550 and The State v Frank Johnston and Others (No 2) (2004) N2586. Whilst acknowledging that the Supreme Court has not given sentencing guidelines for attempted murder, it is apparent that the National Court has a wide discretion available to it when fixing a sentence. 

35.	In the case of The State v Yasangara [2007] N5478 his Honour Cannings J had carefully considered when deliberating on the case of attempted murder in terms of sentence. In that case, his Honour Canning J, considered  the guidelines enunciated in those cases stated that since the Supreme Court has in  Manu Kovi v The State (2005) SC789 given detailed sentencing guidelines for manslaughter, murder and wilful murder. He stated that it is useful to consider those guidelines when sentencing for attempted murder. Though it is arguable that the offence of attempted murder is equally as serious as murder or even more serious as it involves a specific (though unsuccessful) attempt to kill (see Peter Naibiri and Others v The State (1978) SC137), because the result of the crime (the victim survives) is less serious than murder (the victim dies), the sentence for an attempted murder should generally be lower than for a murder (which can be regarded as an attempted murder brought to fruition). Thus, for the purposes of setting starting points for attempted murder he proposes that it is appropriate to use the guidelines for murder derived from the Supreme Court's decision in Manu Kovi's case and set starting points for attempted murder at around 50% of the tariff, as shown in the following table.

TABLE 1: Sentencing Guidelines For Attempted Murder.
Using A 50% Quotient Re Murder Sentences From Supreme Court's Decision In Manu Kovi's Case

No	Description	Details	Murder	Attempted
Murder	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years	6-8 years	
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years	8-10 years	
3	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 grievous bodily harm – dangerous or offensive weapons used, e.g. gun, axe – other offences of violence committed.	20-30 years	10-15 years	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life.	Life imprisonment	15 years-life imprisonment	

36.	Bearing all these observations in mind, this court now asked itself as to what purpose will incarceration bring to the community at large, particularly when such atrocity occurs. The unprovoked attack and the force within which these wounds are inflicted does indicate that the accused had intended to cause real harm to the victim. It was a very vicious attack. 

37.	Further, the medical report indicates that there  was a strong desire to inflict grievous bodily harm; in that there was evidence of contusion on the stomach of an 8-month pregnant mother and the loss of a still born baby boy, bruises to the jaw, ear, side, and bleeding in the mouth. All these are injuries inflicted on the victim.

Submissions on sentence

38.	In his submission on sentence, Mr Boku for the prisoner submitted that the issue before the court was whether the present case is one of the worst types of case under s 299 (1) and 304 of the Criminal Code which attracts a term of life imprisonment. He however pointed out that this court has considerable discretion to determine whether this court can impose the maximum penalty of life imprisonment by virtue of s 19 of the Criminal Code Act. 

39.	In addition, he reiterates that factors in favour of the prisoner is that he is a first-time offender, the prisoner has expressed remorse for what he has done and has co-operated with the police during which he admitted to the crime in the Record of Interview dated 27 December 2022 (Exhibit “A”).

40.	Further, he submitted that in these circumstances, this Court consider the other alternative provisions of the Section 19 discretion and determine as to whether or not to impose: (i) a shorter term of imprisonment (s 19 (1) (a); (ii) a fine up to K2, 000.00 instead of or in addition to a term of imprisonment (s 19 (1) (b), (iii) a sentence until the fine is paid (s 19 (1) (c), (iv) a good behaviour bond on a person convicted on indictment of an offence not punishable with death (s 19 (1) (d), (vi) discharging the prisoner and postponing the sentence; s 19 (1) (f) and (vii) suspension of all or portion of the sentence imposed, subject to conditions (s 19 (6). 

41.	In its deliberations, this court must consider all the facts and circumstances of the case carefully and in this regard apply the principles set down in the case of  the exercise of its discretionary powers in determining the appropriate Manu Kovi v The State  (2005) SC789 , Steven Ume, Charles Koana & George Kavoa v The State (2006) SC836 and State v Manga [2017] N6998] in sentence, given the relevant circumstances of the present case.

42.	Mr. Boku for the prisoner submitted that the punishment for wilful murder must be considered in the same way punishment for other murder offences or any other criminal offence for that matter is considered. The sentencing principles in homicide cases are settled. 
43.	Mr. Boku impressed upon the Court that in the exercise of its sentencing discretion, consider the approach taken by the Court in the case of Ume v The State (2006) SC836 and invited the Court to take into account all relevant aggravating circumstances, all relevant extenuating circumstances, and all relevant mitigating factors. The Court must then balance these factors and determine a punishment which fits the particular crime. 

44.	He submits that consideration of aggravating factors is of course not new. They include pre-planning, degree of pre-mediation, weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after the killing, and so on. Likewise, in any extenuating circumstances, this concept is also not new, They relate to the circumstances of the commission of the offence, itself – factors which reduce the seriousness of the crime. These are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances include de-facto provocation, duress, or coercion, the degree of and extent of the offender’s participation, the offender’s medical condition such psychopathic personality, lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way, he did.

45.	As for mitigating factors, relevant factors to be considered include the offender’s youth, good personal and family background, personal antecedents such as good character, education, employment, and Christian background, first time offender, guilty plea, early confession to police, remorse, co-operation with the police, poor health and restitution or compensation.

46.	The death penalty being the maximum punishment for wilful murder is reserved for the worst case of its kind. The facts of each case will of course be different and the punishment for each case to be determined on its own set of facts. 

47.	In this case, Mr. Boku submitted that a starting point for wilful murder be 30 years under category 2 because of the presence of mitigating factors and aggravating factors with extenuating circumstances of defacto provocation and duress as viewed in the case of Ume v The State (supra) and early guilty plea applies.

48.	For the attempted murder, a proposed sentence of 8 years under category 2 of the State v Yasangara (supra) owing to extenuating factors and mitigating factors are applicable.

Submission for the State

49.	Ms Joseph in reply submitted that this is a case where the offence falls into the worst-case category and therefore the principles established in Manu Kovi v The State (2005) SC789 must apply to determine the severity of sentence.

50.	 In Manu Kovi v The State (supra), the prisoner pleaded guilty to the wilful murder of his wife. On appeal on the severity of sentence, the Supreme Court dismissed the appeal and established the sentencing principles for all homicide cases which has been followed. Whilst she acknowledged that the mitigating circumstances in favour of the prisoner are important considerations; so too are matters relating to his aggravating factors. The maximum punishment of death is reserved for the worst case of wilful murder.

51.	Ms Joseph referred this Court to the case of State v Soso [2015) PGNC 185; N6082. In that case the offender used a bush knife to chop the deceased, his wife, on her neck and body. The deceased died as a result of the injuries she sustained. The Court considered the offender used a dangerous weapon, a bush knife, a vicious attack with a strong desire to inflict grievous bodily harm which resulted in death. Life imprisonment was imposed. 

52.	In State v Tanabo [ 2015] PGNC 186; N6083; The prisoner pleaded guilty to murder. The offender used a bush knife to cut the victim three times on her head and he also cut the victim on other parts of her body. He was sentenced to Life imprisonment. On appeal, sentence was reduced to 20 years.

53.	Ms Joseph submits that this case is comparable to the above two cases of the following consideration: 

“The use of a bush knife on an unarmed, innocent, and defenceless woman is a vicious attack. Strong desire to kill. The injuries sustained were multiple bush knife wounds as per the medical report. The only difference is the charge to which the prisoner before the Court has been charged with Wilful Murder, however, she  submits and urged this Honourable Court to consider the circumstances surrounding the offence” 

Deliberations

54.	Having heard submissions on sentence from both the Defence Counsel and the Prosecution on relevant issues including the mitigation and aggravating circumstances for and against the prisoner. This Court is now tasked to consider an appropriate sentence to be imposed. 

55.	The death was tragic and unwarranted. In this case, those community members affected by the victim's death, have lost a daughter, sister, wife, and valuable community member. However, remorseful the prisoner appears to be, no amount of amity will bring the victim back to life. This sort of crime is prevalent. 

56.	In this regard, I reiterate my statement in the case of State v Tanabo (supra) where I stated:

“Behaviours which do not value and protect sanctity of life must be dealt with. Too often the women, children and vulnerable members of the community are subjected to uncontrollable and physical abuse of their husbands and partners. Thus there has to be stern punitive actions taken to protect the vulnerable from such brutality (Mary Bomai Michael vs. the State  (2004) SC737) where the Supreme Court expressed the views that the "The community looks to the Courts for justice and for the protection of its interest...”

57.	Here, a life has been taken away with such brutality. I note that there has been some dispute within the confines of husband-and-wife relationship (marriage) and family members. The wife had been attacked by the prisoner and has been taken by the parents to get medical attention. After attack, the wife had remained with her parents (family), fearing for her life. The prisoner being aware of the reason for his wife absence, aggravated the animosity by showing at the home of the deceased, demanding for keys to his house. Whilst he says that the abusive words or language used or thrown at him by the deceased can be adduced to infer ‘defacto provocation’ which led him to act in such a manner that had resulted in the unlawful killing and taking of a person’s life, that of his sister-in-law and the attempted murder of your wife, the victims, I am minded to think otherwise. Both women were defenceless and harmless in the circumstances.

58.	From the evidence adduced during trial I understand the prisoner had gone to the deceased house, although not apparently clear, I am satisfied with the evidence adduced during trial that it can be inferred that the prisoner went to his in-laws house with some agenda. He is understood to have been unhappy that his wife has not returned to his home, since the attack inflicted upon her on 28 November 2022 which in this case had resulted in the charge of one count of attempted murder under s 304 (a) of the Criminal Code. Hence, it can be inferred that there had been inclination of frustrations which would diminish his contention of the defence of ‘defacto provocation’. 

59.	Furthermore, assessing the evidence that is contained in the autopsy report conducted by the Health Extension Officer (HEO), Norbert Inoma dated 5 January 2023. He states that the injuries were so severe that the victim was brought to the hospital, however died on arrival on the 27 December 2023. The deceased sustained multiple bush knife wounds to the head, neck left hand and left leg. The injuries were directed at the vulnerable parts of the body. It was fatal, vicious, and brutal. The force of the knife blow to the head split open the skull. Hence, it can be inferred that there had been some permeated planning to the attack. It cannot be attributed solely to the abusive words uttered during his encounter with the deceased. 

60.	Given the foregoing and upon examination of the medical reported, it is accepted that the general presentation was that the deceased a well-nourished female with bush knife wounds to the body. Upon external examination, HEO Inoma confirmed that the deceased had sustained a 6 cm long 2 cm deep cut to the head opening her skull, cut to the left hand, leaving only a bit of skin holding on to body, cut include skin tissue and bone, cut to left leg, leaving only bit of skin holding on to body, cut include skin, tissue and bone and a 2 cm deep and 6 cm long cut on the spinal cord. 

61.	The injuries sustained by the complainant, Selian Wohape are also serious although not fatal.  

62.	Bearing all these observations in mind, this court now asked itself as what utility will incarceration bring to the community at large for such brutality? Particularly when such atrocity occurs within family circumstances. 

63.	Thus in consideration of the severity of penalty to be imposed, regard is had to the views expressed by the Supreme Court in Thress Kumbamong v. the State (2008) SC1017, where concerns were expressed in relation to the sufferings that women and children in this country endure at the hands of their spouses or partners, from violence ranging from threats to beatings to sexual assaults. Given those sentiments, it is my considered view that the prisoner here must be placed in incarceration as this is the consequences of his actions and or decision to killing his sister-in-law and the attempted murder of his wife. 

64.	Furthermore, the number and type of wounds and the force within which these wounds are inflicted does indicate that the accused had intended to cause real harm to the deceased, and it was a very vicious and cold-blooded attack. In that, there was a strong desire to inflict real actual harm which had resulted in the death of the victim.

65.	It is equally important to also point out that the serious injuries inflicted on the wife indicate that the prisoner intended to cause real harm to the victim, and it was a very vicious and brutal attack. In that, there was a strong desire to inflict real actual harm which had resulted in the injuries sustained by the victim.

66.	In the State v Bernard Hagei (2005) N2913, the Court said, and I quote:

“There are so many wanton killings happening in the country at will as though life is some form of commodity or a replaceable item that can be borrowed or bought from the hardware shop in town.  Killings in this country are becoming more daring without fear and there is no respect for sanctity of life.  Brutal horrific and cold-blooded killings are becoming too frequent.”

67.	I must say with respect that I adopt and endorse the observations made by the Court in that case and apply it to the circumstances of this present case.  This case was a premediated and cold-blooded murder.  The prisoner had no respect for the sanctity of human life. 

68.	In The State v Yanis Ipiri (2008) N3512, the Court stated, and I quote: 

“Life is lived only once.  It is therefore very precious.  The sanctity and value of a human life is more precious than money, gold or wealth and the Courts do take a serious approach to treating life as sacred.  No amount of compensation will ever restore a person’s life.” 

69.	It is not an easy task when determining an appropriate sentence to be impose on a prisoner in your situation. This is because there is no formula or mechanism through which a sentence is rated. A Judge or the Court in all circumstances is guided by the particularities of a given case, circumstances, and antecedents of the offender and the interest of the State or society generally, including accepted objectives and purposes for sentencing. In addition, the Courts are also guided by the sentencing guidelines that have been established by case law and tariffs (in limited areas) enacted by legislation. 

70.	However, overall, the court has very wide discretionary powers under Section 19 of the Code to suspend wholly or partly a sentence once imposed depending on the circumstances of a case. Furthermore, for purposes of consistency and parity, this Court is also guided by principles already established by case law in relevant facts and circumstances. 
 
71.	All in all, this is a case where you used a dangerous weapon, a bush knife to inflict grievous bodily harm on a defenceless woman. It was a vicious attack with a strong desire to inflict grievous bodily harm which resulted in loss of life. Life is lived only once. It is very precious. The sanctity and value of a human life is more precious than money, gold and wealth and the Courts do take serious approach to treating life as scared. No amount of compensation will ever restore a person’s life. 

72.	In light of the above reasons, I am minded accepting that the appropriate starting point of sentence to impose on you would be within the range of 20 years to life imprisonment (which is within category 2 to 3 of the Manu Kovi (supra)) guidelines.  

73.	Given the criminality of your conduct and the fact that life can only be lived once, and no amount of compensation or remorse can ever restore a person’s life. Society must never lose sight of the fact that a life is scared and must be protected and to uphold the principles of sanctity of human life. 

74.	Consequently, I sentence you to life imprisonment for the charge of wilful murder under s 299 (1) of the Criminal Code. Such sentence to be served in CIS, Buimo.

75.	I now turn to the charge of attempted murder and address the issue of sentence. In determining this aspect of the charge. I refer to and adopt and apply the sentiments expressed by this Court in the case of The State v Lukas (2022) N10347 in which I stated [30-32]:

“ 30.	The offence of attempted murder under Section 304 (a) of the Criminal Code Act carries a maximum penalty of life imprisonment. It is, however, well established that the maximum penalty for any offence is always reserved for the worst instances of that offence: (Golu –v The State [1979] PNGLR (653); Aihi –v- The State (No.3) [1982] PNGLR 92). It is also well settled that each case must be treated on its own merits and its own set of facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

31.	Whilst it is the task of this Court to determine an appropriate sentence to be imposed on you, in that; considerations must also be taken into account in relation to whether or not this case deserves the imposition of the maximum penalty of life imprisonment and also to consider whether if the maximum penalty is to be imposed, should consideration be given in terms of suspending wholly or partly a sentence once imposed. The Court has considerable discretion whether to impose the maximum penalty by virtue of s 19 of the Criminal Code Act.

32.	Deciding what is an appropriate sentence is not an easy task for this court or a judge as there is no formula or mechanism through which a sentence is rated. The Court in all circumstances is guided by the particularities of a given case, circumstances, and antecedents of the offender and the interest of the State or society generally, including accepted objectives and purposes for sentencing. Plus, sentencing guidelines that have been established by case law and tariffs (in limited areas) enacted by legislation. But in all this, the court has very wide discretionary powers under Section 19 of the Code to suspend wholly or partly a sentence once imposed depending on the circumstances of a case. Furthermore, for purposes of consistency and parity, this Court is also guided by principles already established by case law in relevant facts and circumstances”. 

76.	Regarding your case, you pleaded guilty to the charge of attempted murder. This offence is very prevalent in this country. Numerous cases have come through the courts; some of these cases (reported and unreported).

77.	I note that your counsel Mr. Boku has referred some of these cases in his submission on sentence. Likewise, Ms Joseph for the State. References to these cases where relevant will be used to assist this court determine an appropriate sentence.

78.	The National Court in a number of cases have attempted to set out some sentencing guidelines for the offence of attempted murder under s 304 (a) of the Criminal Code. One such case is that of The State v Bulu Yasangara (2007) N5478  (per Cannings J). In that case, there was a vicious and surprise attack on a man who was, at the time he was attacked, unarmed. The manner of the attack showed that the offender had a strong desire to do grievous bodily harm and an offensive weapon was involved. 

79.	Matters which his Honour took into account in determining penalty here was the mitigating factors in favour of the offender, which included his guilty plea, sole attacker, de facto provocation, spontaneous incident, co-operated with police and expressed remorse. However, the aggravating factors against the offender in that case included the facts that the injury sustained by the victim was serious, it was a vicious attack, played a major role in the attack, did not surrender to police, no compensation and reconciliation made, and that the prisoner was not a first-time offender. His Honour in that case, imposed a sentence within category 2 of the sentencing guidelines, so the starting point is 8 to 10 years.

80.	Whilst I note that this case may not be the worst type of attempted murder, I am minded referring to sentencing guidelines used in the case of The State v Bulu Yasangara (supra)(per Cannings J, paragraph 11), which I adopt and apply the principles to this present case. I find that this was a vicious and surprise attack and the stamping on the stomach of a pregnant mother 8 months into her pregnancy, bleeding in the mouth, contusion to the left ear, eyes, jaw, right shoulder, stomach, right thigh and left side of the ribs, and teeth marks on both her nipples, are all the injuries inflicted on her.  The manner of the attack showed that the offender had a strong desire to do grievous bodily harm particularly where she was left in the kitchen hut covered with a blanket left to die. However, fortunately, she was discovered and brought to the health centre for medical attention. I place this case within category 2 of the sentencing guidelines, so the starting point is 8 to 10 years imprisonment with adjustments upwards or downwards depending on the circumstances of the case and applying the guidelines established relating to the aggravating factors that are present in situations particularly where you inflicted injury on a vulnerable part of the body, there were multiple injuries on the victim, the victim is unarmed or innocent and that you played a major role in the attack because of your suspicion that your wife was having extra marital affairs. 

81.	Whilst noting the above, I also give some consideration to the fact that there are a number of mitigating factors in your favour. These are that you pleaded guilty to the charge, have no prior convictions, and co-operated with the police and you have expressed remorse. 

82.	In determining what penalty to impose, I accept the submission made by the State, that this type of offence is very prevalent and thus a sentence must be seen as a personal and general deterrence. 

83.	The assault on the complainant is unwarranted. I must also state that by passing sentence, offenders are discouraged from re-offending and that others are discouraged from committing crimes of this nature and or taking the law into their own hands. Here, victims however innocent have suffered injuries of varying degrees on their persons due to range of degree of anger and behaviour which have involved the use of all kinds of weapons however lethal. In order to deter such behaviour, it is proper that a sentence of appropriate proportion be imposed on you and for this, I sentence you to a term of 8 years imprisonment, which is within category 2 of the guidelines used in The State v Bulu Yasangara (supra).

84.	I also noted that you have already been in custody for a period of 10 months.  The next issue now is to determine whether such a pre-sentence period in custody be deducted from the sentence term of 8 years? This is allowed for under Section 3 (2) of the Criminal Justice (Sentences) Act, so given that provision, I now deduct the period of 10 months from 8-years term of your sentence. This then leaves the balance of 7 years 2 months of the sentence term to be served at Buimo, CIS.

85.	The next issue is to consider whether the balance of your 7 years 2 months sentence be suspended. 

86.	Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report (Public Prosecutor –v- Done Hale (1998) SC564). Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships. (Public Prosecutor –v- Tardrew [1986] PNGLR 91).

87.	For your case, whilst the PSR is favourable and has recommended that the Court consider probation sentence if it considers it necessary. At the same time, the PSR report considers that you are emotionally immature and do not interact that well with the community and that you can be easily influenced. I note also that there is no indication or information that some form of compensation has been provided. There is also lack of confirmation from the victims’ family on these matters. Given foregoing, I find that such a recommendation does not reflect the fact that your reintegration back into the community would be beneficial both to yourself and the community at large. 

88.	Given this conflicting view, I am inclined to disregard the recommendation presented in the PSR Report. I accept the submission made by the State that this is case where there is a strong need for both personal and general deterrence. The assault was unprovoked where a lethal weapon was used. Furthermore, no material has been presented that warrants suspension of any part of the sentence.

89.	With regard to the prisoner’s pleas for leniency and being a first time offender in court, this case can be distinguished from the case of Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128 where youth was considered as a mitigating factor or the case of Kuri Willie v The State (1987) PNGLR 298 Hinchliffe, J (as he was then) discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first time offenders and the need to consider alternative mode of punishment to imprisonment. However although this prisoner is a first time offender and young man, the crime of attempted murder which is committed with such impunity must carry with it some serious penalties as a deterrent factor and I therefore adopt the principle applied by Hartshorn J in the State v Taulaola Pakai (2010) N4125, where he stated that “Court’s should not lose sight of its duty to impose what is a just and fair punishment on an offender." A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."

90.	In these circumstances, this court considered that incarceration is an appropriate penalty and sentence you to 8 years imprisonment with hard labour less the period of 10 months being the period that the prisoner has been held in custody pursuant to s 3(2) of the Criminal Justice (Sentences) Act. The balance of the term of sentence is to be served in CIS, Buimo.

Sentence

91.	Having convicted you, Vulakue Akulje, of one count of wilful murder under s 299 (1) of the Criminal Code and one count of attempted murder under s 304 (a) of the Criminal Code respectively, you are now sentenced as follows:

(1)	One Count of wilful murder (s 299(1) of Criminal Code) 

Length of sentence imposed: 			Life imprisonment.

(2)	One Count of attempted murder (s 304) (a) of the Criminal Code)

Length of sentence imposed:			8 years.

Pre-sentence period deducted: 			10 months.

Balance of term of sentence to be served:	7 years 2 months.

Amount of sentence suspended:			2 years.

Time to be served in custody: 			5 years 2 months.

(3)	Both sentences to be served concurrently in CIS, Buimo.

Sentenced accordingly.
________________________________________________________________
Public Prosecutor: 	Lawyer for the State	
Public Solicitor:  	Lawyer for the Offender