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State v Make [1998] PNGLR 61 (24 July 1998)

[1998] PNGLR 61

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JAMES AGAMP MAKE
WILLIAM DOT; and
NORMAN POKOP

MOUNT HAGEN: INJIA J
16 July and 24 July 1998

Facts

All three accused pleaded guilty to the murder of one Daun Bornbugl contrary to s 300 (1)(a) of the Criminal Code Act (Ch. No. 262). The deceased and the accuseds were all first cousins and they have argued and fought over the use of their common land resulting in the death of the deceased.

Held

1. The range of sentence for murder cases particularly on a guilty plea with no special aggravating factors as set out in The State v Laura No.2 [1988-89] PNGLR 98 of a sentence of six (6) years and more than six years for murder with special aggravating factors is no longer relevant. In recent times, in murder plea cases, sentences have ranged from 9-15 years
   
2. In the present case, the factors which mitigate the offence are: the guilty plea; co-operation with police; prior good character; good family background; youth; expression of remorse; de facto provocation; breach of trust by the victim in looking after the land; loss of their close relative; and compensation paid of K400.00 plus 20 pigs plus the offer to pay more.
   
3. The factors, which aggravate the offence, are that this was a premeditated vicious attack on the victim by the accused, all-acting in concert and using offensive weapons.
   
4. Balancing all these factors, there is a need to impose a strong punitive and deterrent punishment under the circumstances; a sentence of ten (10) years imprisonment is imposed.
   

Papua New Guinea cases cited

Antap Yala v The State, un-numbered Supreme Court judgement dated 31 May 1996.
Kesino Apo v The State [1988] PNGLR 182.
Kongral Turi v The State, un-numbered Supreme Court judgment dated 8 November 1996.
Maxom Sumba v The State un-numbered Supreme Court judgment dated 29 November 1996.
Nancy Paul Papeng v The State un-numbered Supreme Court judgment dated 1996.
Opai Apili v The State un-numbered Supreme Court judgment dated 31 May 1996.
The State v Jack Mek N1575 (1997).
The State v Laura No. 2 [1988-89] PNGLR 98.
The State v Maria Pelta Pung un-numbered Supreme Court judgment dated 8 November 1996.
Wampai Wampa v The State un-numbered Supreme Court judgment dated 31 May 1996.

Counsel

J Kesan, for the State.
L Siminji, for the accused.

24 July 1998

INJIA J. The three accused pleaded guilty to murdering one Daun Rombugl contrary to s 300 (1)(a) of the Criminal Code Act (Ch. No. 262). The maximum punishment for this offence is life imprisonment.

The three accused and the victim are first cousin brothers. They had an internal land dispute, which led to a small scuffle between them. The land the subject of the dispute belonged to the three accused but was being looked after by the deceased whilst the three accused settled on block land at Aviamp. When the victim claimed ownership rights over the land, this dispute arose. At one stage, the land mediators ordered the victim to vacate the land but he and his brothers refused to obey the order and worked on the land thus leading to the scuffle. During the scuffle, the accused James Make hit the victim on his head with a coffee stick causing the victim to fall to the ground. Whilst the victim lay on the ground, the accused William Dot then cut the victim on his left thigh with a bush knife followed by Norman Pokop cutting the deceased on his left back with a bush knife. The victim died few minutes later from severe blood loss as a result of the injuries. All three accused acted in concert and in the aid of each other. During the scuffle, three other persons received injuries at the hands of the three accused and were committed to stand trial also, but those committals are not subject of the present indictment and therefore not relevant.

Before I discuss the factors, which mitigate or aggravate the offence, I want to say something on the range of sentences for murder, a matter that both counsels have addressed at length. In The State v Laura No. 2 [1988-89] PNGLR 98, Kidu CJ stated that on a plea of guilty to murder with no special aggravating factors, a sentence of six years may be appropriate. A sentence of more than 6 years may be appropriate in a case with special aggravating factors or a lesser sentence where there are special mitigating factors such as youthfulness or advantage of the accused. On a plea of not guilty to murder, a sentence in the range of 8 - 12 years or more in a case where there are aggravating factors. It was also noted that a manslaughter sentence couldn’t be higher than a murder sentence unless a manslaughter case is worse than a murder case.

It is fair to say that there has been an increasing recognition of the need to increase the range of sentence for murder and manslaughter cases. In manslaughter plea cases, the case of Antap Yala v The State Unreported Supreme Court judgment of Amet CJ & Salika J and Injia J (myself) dated 31 May 1996 serves as a good example. In that case, we upheld a sentence of 10 years for manslaughter imposed by the National Court, in a case where a man slashed the neck of his wife following a domestic argument. Similar manslaughter cases have attracted sentences in the range of 6-8 years: see Maria Pelta Pung v The State, Unreported Supreme Court judgment dated 8 November 1996 (8 years) and Kongral Turi v The State, Unreported Supreme Court judgment dated 8 November 1996, (7 years). In murder plea cases, sentences have ranged between 9 - 15 years: see Maxom Sumba v The State Unreported Supreme Court judgment dated 29/11/96 (9 years); Opai Apili v The State Unreported Supreme Court judgment dated 31/5/96; Nancy Paul Papeng v The State Unreported Supreme Court judgment handed down in 1996 (12 years); Wampai Wampa v The State Unreported Supreme Court judgment dated 31/5/96 (15 years). In contested murder cases, sentences have ranged between 12 years - life imprisonment; most common ranges being around 15 - 18 years. In exceptional cases however, that is cases with special mitigating factors, sentences have ranged between 8 years - 12 years: see State v Jack Mek N1557 (1997); (8 years) Nancy Paul Papeng v The State Unreported Supreme Court judgment handed down in 1996 (12 years) in the years following The State v Laura (No.2) (supra).

The ranges of sentences I have set out above are matters which have come to my knowledge either because I have participated in the judgments or in the normal course of business. Due to the lack of accurate data, I am unable to present a complete and accurate picture of the range of sentences, which in my view at times is difficult to ascertain given the sizeable number of differing sentences by various judges and which at times appear inconsistent.

In the present case, the factors which mitigate the offence are: (1) guilty plea; (2) co-operation with the police; (3) prior good character; (4) good family background; (5) in the case of William Dot and Norman Pokop, their youth; (6) expression of remorse; (7) de facto provocation; (8) breach of trust by victim in looking after land for accused; (9) loss of their close relative: see State v Jack Mek N1575 (1997); Kesino Apo v The State [1988] PNGLR 182; and (10) compensation of K400 plus 20 pigs already paid plus offer to pay more at the end of this coffee season. The factors which aggravate the offence are that this was a pre-mediated vicious attack on the victim by the three accused, all acting in concert, using offensive weapons, to achieve their desired result of causing grievous bodily harm. Internal family disputes over land or any other type of dispute are best resolved by lawful means. Balancing all these factors, I consider that the need to impose a strong punitive and deterrent punishment is paramount.

Counsel for the accused has referred me to the sentence of 8 years I imposed in State v Jack Mek, (1997 Unreported) N1575, but I distinguish that case from the present case on the basis of that accused’s special relationship with the deceased and the compelling circumstances in which he killed his own step-father.

I do not intend to make future customary compensation payment as part of the punishment because of the seriousness of the offence. Also given the seriousness of the offence, I do not think a suspended sentence in the case of William Dot and Norman Pokop is appropriate. I do however know that full compensation will be paid as required by local custom and I take this to be an additional mitigating factor.

In all the circumstances, I consider that a sentence of 10 years is appropriate in the case of each accused. From this I deduct the period of 4 months 19 days they have spent in custody. They will each serve the remaining balance of 9 years 7 months and 11 days.

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.