N11227

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1554 OF 2023

THE STATE

V

SAMUEL MAX
Accused

BULOLO/LAE: POLUME-KIELE J
2, 5, 24 OCTOBER, 7 NOVEMBER, 6 DECEMBER 2023; 7 FEBRUARY, 19 MARCH, 2 MAY, 4 JUNE, 2 JULY, 9 AUGUST, 4 SEPTEMBER, 31 DECEMBER 2024; 7, 18 FEBRUARY 2025

CRIMINAL LAW-Guilty plea – Sentence – murder - Criminal Code Act – Section 300 (1) (b) - whether appropriate to impose maximum penalty prescribed under law – relevant considerations - First time offender- Incarceration appropriate.

Brief facts

The prisoner admitted to shooting dead a man with a gun and burning the vehicle which he had driven up to the Hydro Power project site along Baimi Creek to deliver lunch for the workmen between 11 .00 a.m. and 1.00 p.m., Bulolo, Morobe Province on 24 July 2022. The medical report of the cause of death has confirmed the death.  

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; 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. Katosinkalara for the prisoner

SENTENCE

1.	POLUME-KIELE J: The prisoner pleaded guilty to one count of murder contrary to Section 300 (1) (b) of the Criminal Code. 

Penalty Provision

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

“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.
(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. (b)	…
Penalty: Subject to Section 19, imprisonment for life

Committal Court Deposition

3.	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 13 March 2023 at 1.20 p.m. marked as Exhibit "A" relating to the defendant Samuel Max during which he admitted to shooting dead a man with a gun and burning the vehicle which he had driven up to the Hydro Power project site along Baimi Creek to deliver lunch for the workmen between 11 .00 a.m. and 1.00 p.m., Bulolo, Morobe Province on 24 July 2022

(ii) 	The Court deposition containing the Autopsy Report and Medical Certificate of Death dated 25 July 2022, prepared by Dr. Joshua Kwam of the Glenrowan Funeral Home regarding the death of the victim due the injuries sustained. 

4.	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 murder under s 300 (1)(b) of the Criminal Code.

Antecedent Report

5.	The antecedent report presented by the State revealed that the accused is married with a child. He has no formal education. He has a prior conviction. He was arraigned for a charge of armed robbery under s 386 (1) (2) (a) (b) (c ) of the Criminal Code on 16 October 2023.

Allocutus

6.	In administering the allocutus, the prisoner was given an opportunity to speak on the question of penalty. The prisoner elected to speak. He apologise for what he has done and says sorry to everyone involved. Sorry for breaking the law and Constitution, sorry to his brother in Watut for this incident, sorry to the Court, police and CIS Officers. He also asked for leniency and mercy of this Court and to consider a fine as penalty.  In light of this, the Court requested that the Probation Officer, Bulolo to prepare a Pre-Sentence Report on behalf of the prisoner.
 
Pre-Trial Detention

7.	The prisoner had been remanded on the 10 July 2023 and has been held in custody for a period of 1 year 7 months 8 days to the date of this judgment on sentence.

Pre-Sentence Report

8.	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 dated 27 October 2023 which was filed on 6 November 2023 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.

9.	 According to the Pre-Sentence Report, the prisoner is adult male, married with a child. He is from Namba 2 Mining Settlement (Yamap) Watut, Morobe Province. He is not educated but had sustained himself and his family well prior to this incident. The prisoner is a down to earth person and is very considerate and caring person. 

10.	The prisoner is an alluvial gold miner and runs a little trade store. He depends on his earning from this activity to sustain his family. He does associate well with other people. He lives by himself with his wife. 

11.	The prisoner does not deny responsibility over the offence, he committed and does not blame anyone for his doing except to say that he was in the company of trouble makers who committed the offence and that he is now paying the price for it. He does not express any anger over being held in prison. He plans to stay out of trouble. 

12.	The Pre-Sentence Report summarises the prisoner as a person who is confident and is mature and concluded that the prisoner can be considered for a Probation Sentence if the Court considers it and recommended that the offender be placed on a noncustodial sentence for 2 years under Probationary Supervision and that he reports once weekly to the Probation Office, Bulolo and that he abides by all Court Orders imposed on him during the period of his probation. 

13.	This is a case of a young man who had participated in the death of an innocent man driving down a public road.

Mitigation factors

14.	Factors in favour of the prisoner are that he has entered an early guilty plea and co-operated with the Police in their investigation. 

Aggravating factors

15.	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 gun 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. The offender is not a first-time offender. He was indicted for the offence of armed robbery on 16 October 2023 which he had pleaded guilty to already.

Issue

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

Sentencing Principles

17.	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 with 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. 

18.	For this present case, you are convicted for the crime of murder a very serious crime for which the maximum penalty prescribed under s 300 (1) (b) and s 386 (1) (2) (a),(b), (c) of the Criminal Code subject to s 19 is imprisonment for life. 

19.	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 a 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 a 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.

20.	As you are convicted of two separate charges, “murder” (300 (1)(b) and armed robbery (386(1) (2) (a) (b) (c ) of the Criminal Code, I will in this judgment address the ‘murder’ charge only as the judgment for  the ‘armed robbery” charge is subject to a separate decision which I had delivered earlier today.

Count 1-	Murder, s 300 (1 (b)) – Criminal Code

21.	The crime of  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. 

22.	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

23.	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) SC789. 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 		15 to 20 years	12 to 15 years	
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 kill	-	No weapons used – 

-	Little or no pre-planning – 

-	Minimum force used.

-	Absence of strong intent to do grievous bodily harm.	
2		-	20 to 30 years	16 to 20 years	
	Trial or plea – 
-	Mitigating factors with aggravating factors.	-	Pre-planned - some element of viciousness.
-	Weapons used
-	Strong desire to kill	-	Strong desire to do GBH
-	Weapons used 
-	Some pre-planning
-	some element of viciousness.	

3		Life imprisonment	20 to 30 years	
	
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, defenseless, or harmless person
-	Dangerous or offensive weapons used 
-	Killing accompanied by other serious offences.
-	Victim young or old
-	Pre-planned and premeditated.
-	Strong desire to kill	-	Pre-planned – vicious attack
-	Strong desire to do GBH
-	Dangerous offensive weapons used, e.g. gun or axe 
-	Other offence of violence committed

4		Death	Life imprisonment	
	Worst case 
Trial or plea – 
Special aggravating factors
No extenuating circumstances.
No mitigating factors, or mitigating factors rendered completely insignificant by the gravity of offences.		-	Pre-mediated attack
-	Killing in cold blood.
-	Killing of innocent, defenseless, or harmless person
-	Killing in course of committing another serious offence
-	Complete disregard for human life.	

24.	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 perpetrators had intended to cause real harm to the victim. It was a very vicious attack. 

25.	Further, the medical report indicates that there  was a strong desire to inflict grievous bodily harm; in that there was evidence of the victim being shot in the face and bleeding in the eyes and mouth. The victim succumbed to his injuries.

Submissions on sentence

26.	In his submission on sentence, Counsel 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 300 (1) (b) and 386 (1) (2) (a) (b) 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. 

27.	In addition, he reiterates that factors in favour of the prisoner is that 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 3 March 2022 (Exhibit “A”).

28.	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).

29.	In determining what would be an appropriate penalty, 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 Manu Kovi v The State  (2005) SC789 , Steven Ume, Charles Koana & George Kavoa v The State (2006) SC 836 and State v Manga [2017] N6998 in my deliberations in exercising discretionary powers. 

30.	Whilst I accept the submission of Mr. Katosinkalara for the prisoner that the punishment for murder must be considered in the same way punishment for other murder offences or any other criminal offence for that matter is considered. I must point out that the sentencing principles in homicide cases are settled in this jurisdiction. 

31.	In this case, Mr. Katosinkalara is inviting the Court to exercise of its sentencing discretion and consider the approach taken by the Court in the case of Ume v The State (2006) SC836 where the Court took 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. He submits further for the prisoner that consideration of aggravating factors is of course not new as 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 purposes 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 as psychopathic personality, lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way, he did.

32.	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.

33.	The life imprisonment penalty being the maximum punishment for 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. 

34.	In this case, Mr. Katosinkalara submitted that a starting point for murder be 10 years because of the presence of mitigating factors and aggravating factors with extenuating circumstances of being a watch man as viewed in the case of Mire Basanu in the case of State v Harry Heni & 2 Ors (CR Nos. 487, 278 & 279 of 2009) 

Submission for the State

35.	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) SC 789 must apply to determine the severity of sentence.

36.	 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.

37.	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. 

38.	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.

39.	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 defenseless 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

40.	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. 

41.	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. 

42.	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...”

43.	Here, a life has been taken away with such brutality. I note that there has been some dispute of sorts, however, instead of sorting out the dispute amicably between the people concerned, the prisoner participated in this offending, where an innocent user of the public road and the vehicle he was driving was subject to some brutal, vicious, and violent end. 

44.	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 community level and society as a whole and more so on defenceless man and woman. 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 an innocent man who was obviously carrying on his business and oblivious to the danger that awaited him on the public thoroughfare (road). 

45.	Furthermore, the number and type of wounds and the force within which these wounds are inflicted does indicate that the accused had strong 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.

46.	It is equally important to also point out that the serious injuries inflicted on the deceased 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. It was a brutal killing, in cold blood. The killing of an innocent, harmless person. The killing was perpetrated in the course of committing another serious offence. There was complete disregard for human life.

47.	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.”

48.	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. 

49.	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.” 

50.	It is not an easy task when determining an appropriate sentence to be imposed on a prisoner in your situation. This is because there is no formula; see State v Nemao [2015] N6131; State v Mera [2021] N10526; or mechanism through which a sentence is rated; see State v Nemao [2015] N6131.  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. 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.

51.	All in all, this is a case where you used a dangerous weapon, a shot gun to inflict grievous bodily harm on a defenseless man. 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. 

52.	I note that your counsel Mr. Katosinkalara has referred to 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.

53.	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, and co-operated with the police and you have expressed remorse. 

54.	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. 

55.	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.  

56.	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. 

57.	Consequently, I sentence you to 20 years imprisonment for the charge of murder under s 300 (1) (b) of the Criminal Code.  The assault on the deceased was 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, the victim however innocent has suffered injuries of varying degrees on his persons due to a 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 20 years imprisonment, which is within category 2 of the guidelines used in Manu Koivi v The State (supra).

58.	I also noted that you have already been in custody for a period of 1 year 7 months and 8 days.  The next issue now is to determine whether such a pre-sentence period in custody be deducted from the sentence term of 20 years? This is allowed under Section 3 (2) of the Criminal Justice (Sentences) Act, so given that provision, I now deduct the period of 1 year 7 months 8 days of your sentence term of 20 years. This then leaves the balance of 18 years 4 months 22 days of the sentence term to be served at Buimo, CIS.

59.	The next issue is to consider whether any of the balance of your 18 years 4 months 22 days sentence be suspended. 

60.	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).

61.	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 the 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. 

62.	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 a 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.

63.	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 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."

64.	In these circumstances, this court considered that incarceration is an appropriate penalty and sentence you to 20 years imprisonment with hard labour less the period of 1 year  7 months 8 days 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

65.	Having convicted you, Samuel Max for one count of murder under s 300 (1) (b) of the Criminal Code respectively, you are now sentenced as follows:

(i)	Length of sentence imposed: 		20 years 
(ii)	Less pre-sentence period:			1 year 7 months 8 days
(iii)	Balance of sentence to serve			18 years 4 months 22 days .

Sentenced accordingly.
________________________________________________________________________
Lawyer for the State:	Public Prosecutor
Lawyer for the offender:	Public Solicitor