Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Aki (No 2) [2001] PGNC 128; N2082 (28 March 2001)

N2082

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 497 of 1999

THE STATE

-V-

RAPHAEL KIMBA AKI (No. 2)

LAE: KANDAKASI, J.
2001: 26 JANUARY
28 MARCH

CRIMINAL LAW - Particular offences - Murder – Death caused by one knife incision Offence committed early hours of the morning after intruding into a dwelling house – Conviction after trial – Prisoner adult male married with children and with no prior convictions – Sentencing tariffs considered –Sentence of 12 years in hard labour - Criminal Code (Ch No 262), ss. 300(1)(a) and 19

Cases cited:

The State v. Laura (No. 2) [1988-89] PNGLR 98
Simbe v. The State [1994] PNGLR 38
The State v. Gori Bonu Ganitau & Another [1996] PNGLR 48

The State v. Maria Er N1749
Jack Tanga v. The State (unreported and unnumbered judgement delivered on 6th of April 1999)
The State v. Steven Tlukean (13/04/00) N1953
Allan Peter Utieng v. The State (Unreported and unnumbered judgement delivered in Wewak on the 23rd of November 2000) SCR 15 of 2000

Counsel

J. Pambel for the State
A. Raymond (Mrs.) for the Accused

28th March, 2001

DECISION ON SENTENCE

KANDAKASI, J: On the 26th of January 2001, this Court found you guilty on one count of murder under s. 300(1)(a) of the Criminal Code (Chp. 262) (hereinafter "the Code") in a written judgement delivered on that date. That followed a trial on the 22nd and 23rd of January 2001. You were then convicted, your allocutus administered and your address on sentence heard with a decision on sentence being reserved. This is the decision on sentence.

The Relevant Facts

The relevant facts are set out in the decision delivered on the 26th of January 2001. In summary, this was a case of you intruding into the deceased’s dwelling house at night about 3:00am. That woke up first a female in the house who screamed, which in turn woke other also sleeping occupants of the house including, the deceased. You than ran out of the house. By that time, the deceased went out of the house to investigate and you stabbed him once with a knife. You then fled from the scene and the deceased subsequently bled to death. Prior to the commission of the offence, you had argued with the deceased over the deceased’s sister whom you wanted. At that time, you were already married with children.

The Offence and Sentencing Trend

Section 300 (1)(a) prescribes the offence of murder in these terms:

(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.

The case of The State v. Laura (No. 2) [1988-89] PNGLR 98 sets out the appropriate guidelines to be followed for sentencing in murder cases and they are:

1. On a plea of guilty where there are no special aggravating factors, a sentence of six years;
   
2. Sentences of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;
   
3. On a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.
   

In that case, the Defendant pleaded not guilty to a charge of murder under s.300 (1)(a) and was found guilty after a trial. He received a sentence of eight years where there were neither special factors in aggravation nor special factors in mitigation.

The Supreme Court in Simbe v. The State [1994] PNGLR 38, adopted the guidelines set by the Laura No. 2 case and applied them in the context of an appeal against a sentence of 14 years on a guilty plea to a charge of murder.

In that case, the appellant attacked the deceased with a bush knife cutting him at his chest area sectioning most of the ribs and causing the victim’s immediate death. That was over a believe or suspicion that the deceased was trying to entice the appellant’s wife into having sexual liaison. The appellant committed the murder after following the deceased to the garden where his wife was and after what he believed to be acts of enticement and he had chased the deceased into the bush. The Supreme Court found no error in the reasoning and sentence and affirmed the sentence of 14 years.

The guidelines were also applied in The State v. Gori Bonu Ganitau & Another [1996] PNGLR 48. That was a case in which, the Defendant’s pleaded not guilty and after a trial they were both found guilty of murder. The murder was found to have been committed out of an argument between the Defendants (husband and wife) with their brother-in-law and brother respectively, which resulted in the deceased being stabbed by a kitchen knife. The wound led to heavy bleeding and eventually the death of the deceased. The Defendants were given 7 years in hard labour subject to deductions for time spent in custody.

His Honour Injia J reviewed the sentencing trend in murder cases and imposed a term of 7 years in light labour in the case of The State v. Maria Er N1749. In that case, the defendant stabbed and hence caused the death of a woman whom she believed was seeing her husband. Before she did that, the deceased spit on her, which made her angry and do what she did.

One thing that is apparent from these cases is the principle that, the guidelines are only guidelines. Each case as to be determine on its own facts. In the Simbe case, the Supreme Court said at page 39:

The records show that terms of years imposed in 1991 and 1992 for murder range from four years of imprisonment to life imprisonment. This indicates quite clearly that each case has been determined on its own facts and thus, there maybe a very wide variation in the circumstances that lead to a person killing in s.300 situation.

The Court than quoted with approval a passage on point from the Laura No. 2 case at page 99 and said on its part at page 40 of the judgment:

That is the principle. Each case of murder must be decided on a case by case basis, but always remembering that the sentence laid down by s.300 is life imprisonment and the terms of years is by virtue of s.19.

It is now well settled law and your lawyer did correctly concede that, sentence for murder cases have to be higher than manslaughter cases because a charge of murder is more serious than manslaughter. Very recently, the Supreme Court in Jack Tanga v. The State (unreported and unnumbered judgement delivered on 6th of April 1999) held that the manslaughter cases involving vicious force should now attracted sentences between 10 years and above. The following passage from page 3 of the judgement is worthy of quotation:

The sentence in any given case will of course depend on its own peculiar facts. We are unable to prescribe any particular range of sentences for this offence as it is all too difficult to fix any range of sentences with some degree of precision. However, we should suggest that in an unintentional killing case which is uncontested, whatever the extenuating and mitigating circumstances may be, the application of vicious force, with or without the use of a weapon, causing serious bodily injury resulting in death may attract sentences between 10 years and above and in some cases, even life imprisonment. Such stern punishment should reflect the seriousness and prevalence of this offence throughout the country which this Court and the National Court has emphasised time and time again.

The National Court in The State v. Steven Tlukean (13/04/00) N1953, imposed a sentence of 12 years on a charge of manslaughter. In that case, the Defendant unlawfully killed his wife during a domestic argument. He inflicted a 7cm by 10cm knife wound to his wife on the left side of her vagina. That led to heavy loss of blood and eventually her death. There was evidence of past and almost continuous domestic argument and wife beating by the defendant. The Court referred to the above Supreme Court decision and imposed the sentence of 12 years.

Clearly, the guidelines set in the Laura No. 2 case, has to be reviewed in the light of the sentencing trends in manslaughter cases as well as the increase in murder cases since those guidelines were set. The guidelines were given on the 3rd of April 1989. That was more than 11 years ago and may now be out dated especially in the number of years to be imposed for each of the categories. Going by the sentences currently being imposed in manslaughter cases, the starting period for murder cases should now be increased to 10 years or more. Thus the guidelines in the Laura No. 2 case should be varied in the following way:

1. On a plea of guilty where there are no special aggravating factors, a sentence of ten years;
   
2. Sentences of less than ten years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;
   
3. On a plea of not guilty, a range of sentences from twelve years to fourteen years and more in a case where aggravating factors are evidenced would be appropriate.
   

Present Case

In the present case, I take into account both the factors that go in your and those, which go against you. I first consider the factors going against you. These are as follows:

1. You pleaded not guilty to the charge. That necessitate a trial, thereby causing the State and the Court to spend more time and costs and more so when you had no evidence to call in rebuttal of the case against you.
   
2. You intruded into a dwelling house at night at a time when sleep would have been sweeter. You not only committed the offence of murder but also disturbed the peace and sleep of the deceased, his family and his neighbours.
   
3. You were married with children and was persisting on entering into a second relation with the deceased sister, which I believe was met with much objections from the deceased by reason of the arguments spreading over a period of two months.
   
4. Rather than only running away, you chose to inflict a serious harm to the deceased with a dangerous weapon, a knife and took the life of an innocent man, causing substantial loss and suffering to his family and relatives and the community as a whole unnecessarily.
   
5. By virtue of your denial, you did not cooperate with the police.
   

In your favour are only two factors. First, you have no prior conviction and secondly, you inflicted only one blow or incision by knife to the deceased, which did not result in instant death but did lead to loss of blood and the deceased eventual death. Mrs. Raymond your lawyer urged the court to take into account these factors as well has your personal and family background including your medical condition.

You are aged about 34 years and educated up to Grade 6. You come from Okenel in the Simbu Province. You are married with two children. Your children are now attending school and they need your support in terms of school fees and fatherly care. You have an eye problem that may be aggravate by being incarcerated. I consider those factors relevant and I do take them into account. However, I quickly note and point out that, there is no evidence to support the submissions on the medical condition and the children going to school and needing your support. Besides, no authority has been drawn to the Court's attention, which say medical conditions and needs of a prisoner and his or her family are factors that should be taken into account in the prisoner’s mitigation.

A more recent Supreme Court decision in the matter of Allan Peter Utieng v. The State (Unreported and unnumbered judgement delivered in Wewak on the 23rd of November 2000) SCR 15 of 2000, observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little to late to talk about an offenders personal background and concerns once he is proven guilty according to law. His background and concerns should have little or no weigh against the need to impose a sentence or punishment that best be fits an offence and the particular circumstances in which the offence was committed.

I am of the view that intruding into a dwelling house at night time when sleep was at its sweetest and causing uncalled for disturbances was in itself wrong and serious to start with. It was also wrong for you to persist on having a relationship with a second woman when you were already married with children to another. When you caused the uncalled for disturbance and woke up a sleeping family and community you had the option of running away peacefully but you did not. Instead, you chose to stab the deceased with a knife, which eventually led to his death. Although there is no evidence, there is at least an appearance of you attacking the deceased for stepping in the way of your persistent attempts to get to the deceased sister. That appearance is supported by the State witnesses’ evidence of you writing a threatening letter to them and the evidence of you arguing with the deceased and his family over a two months period. I am of the view that, all of these factors amount to a case of aggravated murder as opposed to one without any aggravating factors.

I have also considered the issue of compensation for the purposes of the Criminal Law (Compensation) Act 1991. In view of your submission that you have no means to pay compensation, I consider it inappropriate to order compensation. Likewise you did not ask for a non-custodial sentence and asked for a pre-sentencing report. I therefore decided against calling for and considering a pre-sentencing report.

Having regard to the relevant law and sentencing trends as discussed above and the particular circumstances of this case this Court is of the view that a sentence of 12 years in hard labour appropriate and it accordingly imposes a term of 12 years in hard labour against you. Of that, the period of 2 years 5 months and 28 days already spend in custody is deducted. That leaves you with 9 years 6 months and 2 days to serve. The Court thus orders that, that period be served in hard labour. In line with your preference, the court recommends that you serve your term at the Barawagi Corrective Institution Service in the Simbu Province.
________________________________________________________________________
Lawyers for the State: The Public Prosecutor
Lawyers for the Prisoner: The Public Solicitor