N10737

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 59 OF 2023

THE STATE

V

SOS NGUNTSNGA

Minj:	Toliken J
2023: 	29th March, 15th November
2024: 	15th March

CRIMINAL LAW – sentence – murder – guilty plea – single penetrating stab wound to chest – mitigating and aggravating factors considered – appropriate sentence – 18 years less time in pretrial/sentence detention –Criminal Code Ch.262, s 300 (1)(a).  

Cases Cited:

Lawrence Simbe v The State [1994] PNGLR 38
The State v. Laura (No.2) [1988-89] PNGLR 982
Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Goli v The State [1979] PNGLR 653
Saperus Yalibakut v The State (2006) SC890
Manu Kovi v The State (2005) SC789
Simon Kama v The State (2004) SC740
State v Olga (2022) N9561
State v Robert (2021) N9002
State v Pinapang (2017) N6616

Counsel:
T Kagl, for the State
R Mangi, for the Prisoner
SENTENCE

15 March 2024

1.	TOLIKEN J:	 Sos Nguntsnga, you and the deceased, Du Kaime are cousin brothers. It appears, however, that you did not get along well. This was because he and his family had accused you and your family of practicing sorcery leading to an argument before the death of the deceased.

2.	Then on the morning of 29th August 2022 around 8.30a.m. and 9.00a.m. you met the deceased at Tolu Market, Banz. You were armed with a USA blade hunting knife. You approached him and in cold blood you stabbed him on the neck across the right chest causing him to immediately bleed profusely. The deceased died from haemorraghic shock due to heavy loss of blood from injuries to major organs of the body.
 
3.	For this you were indicted with one count of murder pursuant to Section 300 (1) (a) of the Criminal Code (the Code). You pleaded guilty to the charge and admitted the brief facts which I have stated above.

4.	For the sake of completeness, I reproduce below the pertinent findings by Dr. Glen James in his postmortem examination and report on the deceased’s body:
	
EXTERNAL EXAMINATION 
…
Neck    -	The penetrating neck wound is located supraclavicular left side about 3cm away from the sterno-clavicle joint. …

INTERNAL FINDINGS
…
Neck  -    The neck wound tracks downwards across the right chest.
-	Left neck vessels (carotid veins) [were] cut.
-	The trachea was perforated cut.
Chest-	The pleural of left and right lung apices was cut.…

CONCLUSION 

The injury sustained is from a sharp object. He died of massive blood loss.

5.	The penalty prescribed for the offence of murder is life imprisonment, subject to the Court’s power under Section 19 of the Code to impose a lesser or alternative sentence. 

6.	You will not necessarily, therefore, be sentenced to life imprisonment. This is because the maximum prescribed penalty for any offence may only be imposed in the worst cases of offending. Furthermore, offenders must be sentenced according to the facts and circumstances of their individual offending or offence. These are well settled principles of sentencing. (Goli Goli v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92; Lawrence Simbe v The State [1994] PNGLR 38)

7.	So, my task then is to determine what an appropriate sentence for you ought to be. This must of course necessarily begin with my first deciding whether your offence can objectively be considered a worst instance of murder. 

8.	I do not consider yours to be the worst case of murder. This is despite the fact that a dangerous weapon was used, there was deliberateness and a very strong desire to cause grievous bodily harm, and very serious injuries (which turned fatal) were inflicted on the deceased.

9.	The circumstances of your offence do in fact place your case within the third category of the Manu Kovi sentencing guidelines. These guidelines were set by the Supreme Court in the case of Manu Kovi v The State (2005) SC789 to assist trial judges in the arduous task of sentencing offenders for the homicide offences of wilful murder, murder and manslaughter. This was largely to ensure consistency and equal justice. 

10.	According to these guidelines, murder cases involving the use of an offensive weapon such as a knife, viciousness, infliction of multiple injuries and preplanning, would attract a sentence between 16 to 20 years. There is, however, an element of a strong desire to do grievous bodily judging from the manner and intensity of the attack and the part of the body involved. This therefore brings in a feature of the third category – a strong intention to cause grievous bodily harm – which has a sentencing range of 20 to 30 years. 

11.	It was in fact the State’s argument that the circumstances of your case should place it within category 3 thus attracting a sentence within 20 – 30 years. Your Lawyer Ms. Mangi, however, argued that your case falls within the lower end of category 1 and the upper end of category 2 and thus should attract a sentence between 12 to 20 years.  I am, however, of the firm view that your case falls between the mid-range of Category 2 and the bottom end of Category 3. It should therefore attract a sentence between 17 and 21 years.

12.	That aside let me turn to your personal particulars. You are about 25 or 26 years old. You are from Tolu Village, Banz, Jiwaka Province. You are the second born of five children. Your parents had been separated for 10 years and you were raised largely by your father who works as a security guard with Kumbako Security Services.

13.	You are single and was educated up to Grade 3 only.  Prior to your offence you were also working as a guard in the same company your father was working but left employment and were in the village when you committed this offence. You have a coffee block from which you were supporting yourself.

14.	You have no prior convictions and you have been in custody since the 29th of August 2022 for a period of 1 year 6 months and 15 days.

15.	When I asked you to address the court on sentence this is what you said:

“The late Kaime and his family had been accusing me and my family of practicing sorcery. I was not happy about this. On Monday morning when I met him at the market he laughed and spat at me. I asked him why he did that but he punched me and so we fought. He was a bigger man and when I fell down, I pulled out the knife and tried to get him on the hand, but he turned and caught the knife on the chest. I say sorry to his family.”

16.	On your lawyers request a presentence report (PSR) was compiled by Ms. Siwi, the Provincial Community Based Correction Officer. The PSR is, however, not favourable to you for the following reasons:

1.	You did not reconcile with the deceased’s family.
2.	You have no capacity to pay compensation.
3.	According to community leaders you have a record of misconduct or ill-behaviour and therefore are seen as a threat to the community.
4.	You are also marijuana consumer which the community sees as a further threat.
5.	You have no family support as you are a deserted person.

17.	In spite of these your lawyer submitted that given the circumstances of your case, you should get a sentence between 15 to 16 years. Counsel cited several mitigating factors, most of which I agree with but readily conceded that there are aggravating factors as well. Counsel urged me to give particular consideration to the fact that you were subjected to de facto provocation. The deceased and his family accused you and your family of practicing sorcery and on the morning of the killing the deceased spat at you when you met him at the market. You lost your temper and fought with him and killed him in the process. Counsel submitted that taken together, your mitigating factors outweigh your aggravating factors so a head sentence of 15 years from which time in custody ought to be deducted would be appropriate.

18.	Counsel also cited several cases which she said are similar to your case and can assist me in determining an appropriate sentence for you. I will refer to some of these later in this judgment. 

19.	Ms. Kagl submitted, as I alluded to above, that your case is one that falls within category 3 of the Manu Kovi guidelines and as such should attract a sentence in the range of 20 – 30 years.  The aggravating features of your offending are that you used a dangerous weapon, you inflicted very serious injuries on the deceased and the prevalence of this type of offence. Counsel also cited a few prior cases for precedence and submitted that an appropriate sentence for you ought to be 18 to 20 years.

20.	The following factors aggravated your offence:

•	You used an offensive and dangerous weapon.
•	You displayed a very strong intention to cause grievous bodily harm to the deceased.
•	You attacked a vulnerable part of the body – the chest and neck area.
•	The prevalence of your offence.

21.	The following, however, lessened the gravity of your offending:

•	You pleaded guilty very early to your charge.
•	You co-operated with the police by firstly surrendering yourself almost immediately after you killed the deceased, and secondly by making admissions in your record of interview. 
•	You are first-time offender.
•	You were provoked in the non-legal sense. I accept that the deceased and his family had accused you of practising sorcery. You said that on that morning the deceased laughed and spat at you, and this made you angry, and you fought with him. The State did not challenge this so I shall accept and take this in your favour. (Saperus Yalibakut v The State (2006) SC890)

22.	Before I move on to decide what sentence you should get let me just consider a few cases which counsel had cited to me. This is essentially to show what kind of sentences offenders who committed murder in circumstances like yours got.

23.	In State v Pinapang (2017) N6616 (Cannings J) the offender, aged 20 years at the time of the offence, had an argument with his adopted mother in a bush location and used a bush knife to cut her on the neck. It was a severe wound and she died instantly. He pleaded guilty to murder. The court there rejected the defence’s submission that the case fell under Category 2 of the Manu Kovi guidelines. It agreed with the State that it fell under Category 3. It held that the starting point for sentencing for this sort of murder (special aggravating factors, mitigating factors reduced in weight or rendered insignificant by gravity of offence, vicious attack, strong desire to do grievous bodily harm, offensive weapon used) is 20 to 30 years imprisonment.

24.	Even though the offender had mitigating factors such as that he was the sole attacker, high level of cooperation with the Police, early admissions, pleaded guilty very early, was a first-time offender, had a difficult family upbringing, and had expressed remorse, these were not sufficient to warrant a sentence below the starting point. This was because of the aggravating factors which included the use of lethal weapon, brutal killing and killing of a defenceless, harmless and an entirely innocent person. The court therefore imposed a sentence of 21 years, none of which was suspended.

25.	In State v Robert (2021) N9002, Batari J), the offender and his brother had been arguing over their father’s oil palm block for some years. One night while his brother was sitting with others, the offender stealthily approached him from the back and struck him on the head with an axe. He then followed through by cutting him on the leg when he fell. The court held this to be a brutal surprise killing which it likened to a public execution. The offender also had a strong intention to cause grievous bodily harm. The offender had some good mitigating factors, but these were rendered insignificant by the gravity of the offence. The court was of the view that the circumstances of the case placed it within Categories 2 & 3 of the Manu Kovi tariffs and sentenced the offender to 18 years imprisonment. 

26.	In State v Olga (2022) N9561 (Toliken J) the 61-year-old offender had a brief argument with his son who had come to ask him for some gramoxone (weedicide). Soon after, the offender picked up an axe and swung it at the deceased, intending to cause him pain and grievous bodily harm. However, he inflicted a deep cut to the deceased’s neck severing a blood vessel which resulted in heavy loss of blood. The deceased was rushed to the hospital but died on the way.

27.	The offender pleaded guilty, was a first-time offender, co-operated with the police, was of prior good character, was advanced in years and the killing was self-inflicting among other mitigating factors. I sentenced him to 10 years less time in pretrial detention.

28.	These are but three of the hundreds if not thousands of murder cases that have come before this Court. Because cases are considered on their peculiar facts and circumstances, sentences imposed similarly will not be, and are not uniform. The court does not strive for uniformity but rather consistency so equal justice is achieved. Hence the guideline principles such as those set by the Supreme Court in Manu Kovi and The State v. Laura (No.2) [1988-89] PNGLR 982 and Simon Kama v The State (2004) SC740  prior to that.

29.	In Kama v The State (supra) the Appellant appealed against his sentence of 25 years for murder for excessiveness and a failure by the sentencing court to consider the appellant’s guilty plea and failure to allow him to give an address on sentence. The appellant shot and killed the driver of a motor vehicle instantly during a planned highway robbery. His accomplices the robbed a female passenger they pulled out of the vehicle when it ran into a drain after the driver was shot and robbed her of K50.00. The appellant was sentenced to 25 years while an accomplice who was sentenced to15 years after a trial. The appellant also took issue with this.  

30.	The Supreme Court roundly dismissed the appeal and among other things varied and increased the prevailing sentencing guidelines for murder it had previously set in Laura v The State (No.2). In Manu Kovi the Court then revisited and varied those precedents. But it went further to consider the prevailing precedents for other homicide offences such as wilful murder and manslaughter and set guidelines for each offence which provided four categories for each offence and the sentencing range for each category. 

31.	What also obtains from these Supreme Court cases is the call to increase penalties across the board for homicide offences to meet the ever-increasing incidence and the equally alarming callousness with which some of these offences are committed. Hence, you must not think for a moment that you will not be severely but appropriately and justly punished for your offence.

32.	I accept your mitigating factors and particularly note that you were provoked in the non-legal sense.  The deceased and his family had accused you and your family of practising sorcery. This is a weighty accusation and one that can in a lot of cases spell doom for one suspected or falsely accused of practising sorcery. It is understandable therefore that you would have been really angry about this. And so, when the deceased insulted you by spitting and laughing at you that morning at Tolu Market you immediately reacted to the provocation. You immediately swung your USA hunting knife at him catching him on his chest and neck area. From the postmortem report, it can be deduced that the force you used would have been significant indeed because the knife penetrated the neck and downward across the chest cutting the carotid veins (neck vessels) and the trachea or windpipe. The knife further penetrated the pleural or cavity. It is clear to me that you had a very strong intention to cause the deceased serious bodily harm.

33.	As I earlier said, your case has features of both Category 1 and category 2 of the Manu Kovi guidelines and should therefore attract a sentence between 18 to 21 years.

34.	The circumstances of your case are quite like those in Pinapang, the only difference here being the fact that you were provoked in the non-legal sense. Pinapang got 21 years for his offence. Should you get a similar term? 

35.	I think that the provocation offered you by the deceased should justify a sentence below 21 years, but a significant reason is because you and others out there in the community ought to be made to realize that killing someone at the slightest provocation has serious consequences and must result always in sever punishment.
 
36.	Life is sacred. Unfortunately, a good proportion of our people treat it as something dispensable – something to be taken wantonly and at will. The propensity to commit violence is almost second nature and people quicky resort to violence without considering the consequences on their victims and on themselves. Here a life was taken prematurely and unlawfully leaving behind damaged families on both sides.

37.	The Supreme Court has said, and in fact the people demand that those who take life unlawfully ought to be appropriately punished and where justified, severely. You must therefore be served a long enough sentence to exact out of respect for the sanctity of life and for the law.

38.	I reject your lawyer’s submitted that you should get a sentence of between 15 – 16 years. That would be a totally inadequate sentence! So, I propose therefore that an appropriate sentence for you should be 20 years, but considering your good mitigating factors, I should think that a fitting sentence for you ought to be 18 years.

39.	I therefore sentence you to 18 years imprisonment. From this I will deduct 1 year, 6 months and 15 days for time in pretrial/sentence detention. None of the balance of your sentence shall be deducted. You will serve your sentence at Barawagi Corrective Institution. And finally, you have the right to appeal to the Supreme Court within 40 days if you are not happy with your sentence.

So ordered.

________________________________________________________________
R Luman, Acting Public Prosecutor: Lawyer for the State		
L B Mamu, Public Solicitor: Lawyer for the Prisoner