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State v Langu (No.2) [2004] PNGLR 11 (26 August 2004)

NATIONAL COURT OF JUSTICE

THE STATE

V

CHARLIE LANGU (NO 2)

WEWAK: CANNINGS J

26 August 2004

CRIMINAL LAW – Indictable offence – Criminal Code, Division V.3, Homicide – Murder – Section 300(1)(b), person kills another person – Death caused by means of an act done in the prosecution of an unlawful purpose and of such a nature as to be likely to endanger human life – Maximum penalty of imprisonment for life – Decision-making process – Factors relevant to sentence – Not guilty plea – Aggravating factors, other than use of firearms – Assessment of sentence – Decision on sentence.

Facts

The prisoner, Charlie Langu, was convicted under Section 300(1)(b) of the Criminal Code for murder. The issues before the Court was whether Court in its discretion can impose a lesser penalty; or whether he should be given a suspended sentence.

Held

1. On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years.

2. Where there are no mitigating factors identified that would take the case below the range of 22 to 40 years, the appropriate head sentence is 25 years.

3. To allow the sentence to be suspended on the basis of a hollowly expressed desire to sort out such a grave problem would, without justification, not be a just outcome.

Papua New Guinea cases cited

Doreen Liprin v The State (2001) SC673.
Eric Vele v The State (2002) N2252.
Lawrence Simbe v The State [1994] PNGLR 38.
Simon Kama v The State (2004) SC740.
The State v Charlie Langu (No 1) (2004) N2651.
The State v Eddy Kava Laura (No 2) [1988-89] PNGLR 98.
The State v Raphael Kimba Aki (No 2) (2001) N2082.

Counsel

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

24 August 2004

Cannings j. This is a decision on sentence. The prisoner, Charlie Langu, was earlier today convicted under Section 300(1)(b) of the Criminal Code of the murder on 6 November 2002 of Rita Sora at Samgit in the East Sepik Province. (The State v Charlie Langu (No 1) N2651.)

Penalty regime

The maximum penalty for murder is imprisonment for life. Murder is distinguished from the crime of wilful murder. Wilful murder is an offence under Section 299 of the Criminal Code. It is committed when a person unlawfully kills another person, intending to cause his death or that of some other person. A person who commits wilful murder is liable to be sentenced to death.

In the present case the prisoner is liable to imprisonment for life. That maximum penalty is, however, subject to Sections 19(1)(a), 19(1)(d) and 19(6). Those provisions confer discretion on the Court to sentence the prisoner to a lesser term or to suspend part or all of the sentence.

Decision-making process

In making a decision on sentence I adopted the following decision-making process:

1 the prisoner's antecedents are considered;

2 the prisoner's statement on allocutus is considered;

3 the submissions of counsel for the prisoner are considered;

4 the submissions of counsel for the State are considered;

5 the sentencing guidelines for murder cases are identified;

6 those guidelines are applied to this case and a head sentence indicated;

7 consideration is given to whether part or all of the sentence should be suspended; and

8 the formal decision on sentence is summarised.

Antecedents

Mr Wala, for the State, suggested that the prisoner had two prior convictions for relatively minor offences. But that was not conceded by Mr Siminji, for the prisoner. Mr Wala could not present satisfactory proof of prior convictions. I therefore dealt with the prisoner as if he were a first time offender.

Allocutus

The prisoner apologised to the Court for the death of Rita Sora. He said it was the first time for him to stand in the eyes of the Court. He asked the Court to consider imposing some sentence other than imprisonment so he could go back home and sort things out.

Submissions for the prisoner

Mr Siminji pointed out that the prisoner is aged 28. He is married. Two of his three children have died. His wife still lives in the village, in Samgit. He attends the Assemblies of God Church. Prior to his incarceration over the death of Rita Sora, he had been living an ordinary village life, with no formal employment. He has been in custody awaiting trial for a substantial period, more than one year and nine months.

The maximum penalty of life imprisonment should be reserved for the worst kind of murder. This case does not fall into that category. Each case must be considered on its merits, as highlighted in Lawrence Simbe v The State ([1994] PNGLR 38, Supreme Court, Woods J, Konilio J, Sevua J). But it is useful to have regard to sentencing guidelines initially laid down in The State v Eddy Kava Laura (No 2) ([1988-89] PNGLR 98, National Court, Kidu CJ) and modified by cases such as The State v Raphael Kimba Aki (No 2) ((2001) N2082, National Court, Kandakasi J).

In Aki's case Kandakasi J suggested that the guidelines should be as follows:

(a) on a guilty plea, with no special aggravating factors: 10 years;

(b) on a guilty plea, with mitigating factors such as the youthfulness or advanced age of the accused: less than 10 years;

(c) on a not guilty plea, with aggravating factors: 12 to 14 years or more.

In Aki the murder was committed during the course of a break-in of the victim's house. The penalty was 12 years. Mr Siminji submitted that in the present case, the facts were different but the seriousness of the offence was similar. The victim was not involved in the first fight at the mediation session at Nindiko. She was unarmed when she was speared. A term of imprisonment in the order of 12 years is appropriate.

Submissions for The State

In response, Mr Wala, for the State, asserted that the guidelines in the above cases have been overtaken by the recent decision of the Supreme Court in Simon Kama v The State ((2004) SC740, Sevua J, Kandakasi J, Lenalia J.)

The Court stated, at page 22:

On the court's part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) [1989] PGNC58; [1988-89] PNGLR 98; N693 and Simbe v The State [1994] PNGLR 38 for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d) On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence, [that] may warrant a sentence lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons.

Mr Wala submitted that the features of the present case were that the prisoner was part of a group that was armed with dangerous weapons; that the victim was unarmed; that the victim was killed in front of her own house; and that she had been pursued for 2 kilometres before being killed. The case should be brought within category (e).

Relevant guidelines

I accept Mr Wala's submission that the National Court must have very close regard to the sentiments expressed and the guidelines contained in the unanimous judgment of the Supreme Court in Kama's case.

There has been widespread concern about the prevalence of murders and other violent crimes, particularly murders committed in the course of armed robberies or other unlawful activities. The Court was critical of the length of terms of imprisonment that have been imposed in murder cases. They have been too lenient. The Court was critical of the propensity of the Public Prosecutor to indict for murder, when the seriousness of the charge warranted a wilful murder indictment; or to indict for manslaughter instead of murder. The Court also criticised the Public Prosecutor for not using his power to cross-appeal against apparently lenient sentences. Too much of the Court's valuable time and resources is being wasted on frivolous prisoner appeals.

The Supreme Court emphasised that life imprisonment for murder is the starting point when the Court has to work out what the appropriate sentence is. Only where a person has pleaded guilty and there are no factors in aggravation should a sentence of the magnitude suggested by Mr Siminji – around 12 years – be considered.

The Supreme Court is saying clearly that the National Court must impose longer sentences than it has in previous years. This will underline the gravity of the crime of murder and provide a deterrent to the commission of such serious crimes.

Schedule 2.9(1) of the Constitution states "all decisions of law by the Supreme Court are binding on all other courts, but not on itself". The sentencing guidelines pronounced in Kama's case are a decision of law. I am bound by them.

Application of guidelines

In the present case I have applied the guidelines in Kama's case as follows:

The plea was not guilty.

There were no firearms – if that term is limited to guns, pistols, rifles and the like.

But there were aggravating factors. The victim was entirely innocent. She was unarmed. It was a vicious and deliberate act. The prisoner showed no regard for human life. The murder was committed in the course of committing another offence.

I therefore accept Mr Wala's submission that the present case falls within category (e).

I have been unable to identify any mitigating factors that would take the case below the suggested range of 22 to 40 years. I have considered that the prisoner is a first offender and that he has a wife and child. He showed some remorse in allocutus. But this came after a trial, in which he was found to have lied. Weighed against what he did, they are not telling considerations.

I conclude that the appropriate head sentence is 25 years.

Whether sentence should be suspended

In recent years there has been a trend towards imposition of sentences other than terms of imprisonment. The reasons are explained by the Supreme Court in Doreen Liprin v The State (2001) SC673 and by Kandakasi J in the National Court in Eric Vele v The State (2002) N2252. But that trend has been mainly in non-violent crime cases. The present case was a very violent crime.

I have carefully considered the prisoner's plea that a non-custodial sentence be imposed. He wants to be allowed to go back to the village and sort things out. But nothing was presented to me to show that that was a real and meaningful gesture. There was some evidence in the trial, of an attempt at a customary resolution of the issue by the prisoner's relatives. But that evidence fell short of what was required to convince me that it was a genuine, tangible and effective remedy for what the prisoner did. To allow the sentence to be suspended on the basis of a hollowly expressed desire to sort out such a grave problem would, I consider, without justification, cheapen the life of a person that was extinguished in brutal circumstances. That would not be a just outcome.

This is not a case where it is appropriate to suspend any of the sentence.

Decision

The sentence is 25 years imprisonment, in hard labour, less the time that the prisoner has already spent in custody directly in relation to this matter.

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