N10858

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 507, 508, 509, 510 & 511 OF 2023

THE STATE
v
FRANCIS REKU
HERMAN MALALA
SEBASTIAN BOA
VINCENT LINGE
AND
IGNATIUS UMA

Kimbe  :	Numapo J
2024:	11th & 14th June

CRIMINAL LAW – Particular offence – Murder – Guilty Pleas – Sentencing Principles - Sentencing guidelines on murder cases - Sentencing Discretion – Aggravating & Mitigating factors – Extenuating circumstances – Sections 300 & 19 of Criminal Code.

Held:
(i)	The appropriate sentence for vicious attack using offensive weapons with a strong desire to do grievous bodily harm (GBH) resulting in death is between category 2 and 3 of the Manu Kovi Guidelines.

(ii)	Sentencing discretion of the trial judge under section 19 is not taken away by any sentencing guidelines.

(iii)	Sentence imposed by the Court must reflect the purposes of sentencing such as deterrence, rehabilitation, restitution and retribution. 

(iv)	Factors such as the gravity of the offence, extenuating circumstances, aggravating and mitigating factors including prevalence of the particular offence are taken into account in deciding both the appropriate sentence and the head sentence.

(v)	Prisoners each and severally sentenced to Sixteen (16) years imprisonment less the pre-trial period. 

(vi)	Sentence partially suspended if compensation is paid.

Cases Cited:
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No 3) [1982] PNGLR 92
Manu Kovi v The State (2005) SC789 
The State v Iori Veraga (2005) N2921
Kumbamong v The State [2008] PGSC 51; SC1017 (29 September 2008)
State v Jerry Nelson & Gima Sana CR 1165 & 1166 of 2022
State v Jeremiah v. Peter & George Kuno CR. No. 503 & 505 of 2022
State v Jacob Tamaliu, Raymand Gavia Mangaea & Isaac Laupu CR No.s 1361, 1362 & 1363 of 2022. 
State v Silingo Abitena & Ors, CR Nos. 972, 973 & 975 of 2017
State v Jackson (2206) N3237
State v Michael Gend Cr. No. 760/2011. 17th February, 2014
State v Sony Yauri and Willie Gideon CR. No. 1045 & 1046 of 2017

Counsel:
A. Bray, for the State
N. Loloma, for the Defence

SENTENCE

14th June 2024

1.      NUMAPO J: This is a decision on sentence. The Prisoners FRANCIS REKU,  HERMAN MALALA, SEBASTIAN BOA, VINCENT LINGE and IGNATIUS UMA all pleaded guilty to one count of Murder, pursuant to Section 300 (1) (a) of the Criminal Code and were convicted accordingly. 

A.	BRIEF FACTS

2.    The facts to which the offenders pleaded guilty were that; on the 17th September 2022, the deceased (Boas Dede) had attacked a person by the name of Nathan Uma, a relative of the prisoners. They (offenders) confronted the deceased and chased him. They were armed with an axe, a bushknife and slingshots.

3.      As the deceased was running away Francis Reku shot him on the head with his slingshot that caused him to fall down. The deceased got up again and grabbed onto another person namely, Steven Meta to avoid been attacked but fell down again and Herman Malala chopped him with an axe on his abdomen area. He lied on the ground and passed out. Deceased eventually died from his injuries. 

B.	LAW

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

C.	APPROPRIATE SENTENCE 

4.    It is trite law that the maximum penalty prescribed by law is reserved for the worst type offending in the given category (See Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No 3) [1982] PNGLR 92).   

5.    Each case is assessed on its own facts and circumstances, being the aggravating and mitigating factors and the extenuating circumstances. The prevalence of the particular offence is also a consideration that is taken into account.  All these have to be properly weighed up in deciding the appropriate sentence; (The State v Iori Veraga (2005) N2921).  

D.	SENTENCING GUIDELINES

6.     Both the State and the Defence submitted that in determining the appropriate sentence the Court should be guided by the sentencing tariffs on Murder set out in the famous case of Manu Kovi v The State (2005) SC 789. The guidelines is set out below:

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 used
Some pre-planning
Some element of viciousness.	
Category 3	20 – 30 years	
Trial or Plea
Special Aggravating factors
Mitigating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned. Vicious attack
Strong desire to do GBH
Dangerous or offensive weapons used e.g. gun or axe
Other offences 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 life.	

E.	SENTENCING TREND ON MURDER 

7.     A number of case laws were cited by both the State and the Defence in their respective submissions on sentence to show the current trend on sentencing for murder cases and submitted that the court be guided by them. The sentencing tariffs of Manu Kovi Guidelines were reflected in many of these case laws.  I find these cases very useful and referred to them below:

1.	State v Jerry Nelson & Gima Sana CR 1165 & 1166 of 2922

8.     The two prisoners were at Dami Research Station near Kimbe town when they attacked the deceased Romanus Joseph Lokono who had come to apologize to one of them regarding a fight they had earlier. Their conversation developed into an argument and they attacked Romanus. It was a mob attack and they used a scissor to attack the deceased which caused his death. 
Both accused persons pleaded guilty and were sentenced to 16 years IHL. 
2.	State v Jeremiah v. Peter & George Kuno CR. No. 503 & 505 of 2022
9.     The two prisoners were at Galai No. 1 on the 25th November 2021. At around 4:30pm the prisoners and others combined and fought with the deceased (Andrew ToRuga) and hit him with stones. Andrew ToRuga sent word to his relatives to help him as he was being attacked. His relatives arrived at Galai No. 1 and attacked the people there. The Galai community then mobilized and went into Andrew ToRuga’s oil palm block and chased away the people who came to assist him. 
10.    Prisoners Jeremiah Peter and George Kuno attacked the deceased with a bushknife and chopped him on his right leg causing him to fell to the ground. George Kuno hit Andrew ToRuga with a stone and also used an iron pipe on the head. He subsequently died from the injuries he received from the attack.
Both prisoners were sentenced to 15 years IHL.   
3.	State v Jacob Tamaliu, Raymand Gavia Mangaea & Isaac Laupu CR No.s 1361, 1362 & 1363 of 2022. 
11.    The offenders were under the influence of alcohol during a customary ceremony at Potne village, Gloucester, West New Britain Province. Members of the public were not too happy with their drunken behaviour and an argument erupted. A fight started and the priosners chased the deceased (Messel Joe) and attacked him with bushknives. Deceased was chopped on his shoulder and head and eventuall died form the injuries. 
Prisoners were each sentenced to 18 years IHL. 
4.	The State v Silingo Abitena & Ors, CR Nos. 972, 973 & 975 of 2017

12.    The offenders pleaded guilty to one count of Murder. They attacked the deceased with bushknives and axes. The deceased died from the injuries inflicted on his body. The offenders were sentenced to 18 years, 12 years and 15 years respectively.

5.	The State v Jackson (2016) N3237

13.    The offender pleaded guilty to murder of a deceased whom he suspected of killing his father through sorcery. On the day of the incident, the offender and his friend armed themselves with long bush knives and went to the deceased’s house. It was very early in the morning and they were still asleep. When they finally woke up, the offender and his friend came out of their hiding place and attacked the deceased who was holding his grandchild. The offender inflicted two knife wounds to the deceased’s neck. He fell down motionless and they escaped. The court imposed 24 years with none of the sentence being suspended

6.	The State v Michael Gend Cr. No. 760/2011. 17th February, 2014
14.    The prisoner pleaded guilty to murder under section 300 (1) (a) of the Criminal Code and was sentenced to 25 years less pre-trial period of 3 years and 2 months leaving the balance of 21 years and 9 months to serve in prison.

15.    The offender and his wife were having an argument that started at the market place.  The offender was armed with a knife and stabbed his wife at her back and around the genital and abdomen area. They reached their house and the deceased fell to the ground and died due to loss of blood from injuries she sustained. She received multiple injuries to her body. She was taken to the hospital and but was pronounced dead on arrival. She was 4 months pregnant at the time.

7.	State v Sony Yauri and Willie Gideon CR. No. 1045 & 1046 of 2017

16.    The offenders pleaded guilty to one count of Murder. They stabbed the deceased with a knife on his left chest. Both were sentence to 18 years imprisonment.

F.	PRESENT CASE

17.    In the present case, the facts clearly shows that this was a deliberate attack with an intention to cause grievous bodily harm (GBH) which ultimately resulted in the death of the deceased. Offensive weapons in the form of an axe, bushknives and slingshots were used in the attack. The deceased was cut on the abdomen that lead to his demise. The death of the deceased was totally unnecessary. This was a payback attack carried out after the deceased had attacked one of the prisoners’relative earlier on. 

G.	AGRAVATING FACTORS 

(i)	Use of an offensive weapons, an axe, bushknives and slingshots
(ii)	Vicious mob attack
(iii)	Strong desire to cause GBH
(iv)	Prevalence of the offence.

H.	MITIGATING FACTORS

(i)	Pleaded guilty early
(ii)	First time offenders
(iii)	Expressed remorse
(iv)	No prior convictions.

18.    Mr Loloma for the Defence asked the Court not to impose the maximum penalty prescribed by law for reason that this is not a worst type of offending to attract a maximum sentence prescribed under the Criminal Code and urged the Court to impose a lesser sentence in the exercise of its discretion under section 19 of the Criminal Code (Goli Golu v The State [1979] PNGLR 653). 

19.    Counsel submitted that the Court should consider imposing a term of imprisonment between category 2 and 3 of Manu Kovi which is between 15-18 years at the lower end of the scale.

20.    Mr Bray for the State submitted for a sentence of between 16 – 20 years imprisonment. Killings of such nature is becoming prevalent in the province and the Court must show its disapproval by imposing a sentence that will serve as a deterrence. 

I.	PRE SENTENCE REPORT

21.    Prisoner Francis Reki is 43 years old. He is single and generally of a good character until this incdent happened. Herman Malala is 21 years old and is married with one child. He was employed as a security guard by Kaula Security when he committed the offence. Sebastian Boa is 36 years old and is married with three children.  He worked at Lau Plantation in 2006. Vincent Linge is 22 years old and is single. He completed grade 7 at Patanga Junior High School and is currently unemployed. Ignatius Uma is 20 years old and single. He also completed grade 8 at Patanga Jnr High School and is unemployed at present. 

22.    I am satisfied that each of the prisoner played a role that lead to the demise of the deceased. Although, Herman Malala may have delivered the fatal blow that killed the deceased, had it not been for the stones shot from the slingshots, the deceased would have probably escaped from being hurt. The hit from the slingshots caused him to fell making it possible for the prisoners to run up to him and cut with an axe and bushknives. I find the prisoners equally responsible for the death of the deceased. 

J.	SENTENCING

23.    I make the following orders:

(i)	I sentenced the Prisoners each and severally to Sixteen (16) Years IHL.

(ii)	 I deduct One (1) Year and Nine (9) months for the pre-trial custody period.

(iii)	Prisoner to serve the remaining balance of Fourteen (14) Years and Three (3) Months IHL.

(iv)	I further order that three (3) years be suspended from their total term of imprisonment if each prisoner pay a sum of K3000 each as compensation to the family and relatives of the deceased totalling to K15, 000.00 within three (3) months of the Order, pursuant to section 2 of the Criminal Law (Compensation) Act 1991.

(v)	Sentence to be partially suspended (as ordered above) if compensation is paid in full. 

Orders Accordingly

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