N3168

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 2025 of 2005

THE STATE

v

KIRI KIRIHAU HARISU

Kerema: Kandakasi, J.
2006: 5th and 24th October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Murder – Deceased killed prisoner’s father – Prisoner trying to shake hands with deceased – Deceased refusing and threatening to kill prisoner – Deceased had earlier killed prisoner’s father - Prisoner picking up axe that was there and cut the deceased twice with intend to stop deceased from attacking him – Deceased died from loss of blood - Guilty plea – First time offender – Expression of remorse without tangible evidence of - Sentence of 22 years imposed - Criminal Code Sections 300 and 19. 

Cases cited: 

Manu Kovi v. The State (31/05/05) SC789.
The State v. Vincent Simbago (26/09/05) N2954.
The State v. Laura (No. 2) [1988-89] PNGLR 98.
The State v. Raphael Kimba Aki (N0.2) (28/03/01) N2082.
Simon Kama v. The State (2004) SC740.
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741.
Kepa Wanege v. The State (01/04/04) SC742.
The State v. Charlie Langu (No 2) (26/08/04) N2652.
Lawrance Simbe v The State [1994] PNGLR 38.
Rudy Yekat v. The State (22/11/01) SC665.
Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
The State v. Lucas Yovura (29/04/03) N2366. 

Counsels:
Mr. D. Mark, for the State.
Mr. P. Kapi, for the Prisoner.

24 October, 2006

1.	KANDAKASI J:	On the 5th of this instant, this Court convicted you on your guilty plea to a charge of murder contrary to Section 300 of the Criminal Code. After receiving submissions from your lawyer and that of the State on the same day, the Court reserved its decision. Here now is the Court’s decision. 

The Facts

2.	On 1 January 2005, as you returned from what appears to be a new year’s party, you passed through a Lovakaea Harro’s (now deceased) house. This was in Pukari, in the Malalaua District of this Province. As you came close to the deceased’s house, you decided to approach the deceased with the intention to shake his hands. You offered to shake the deceased’s hands but he refused. The deceased then threatened to kill you saying "like I killed your father, I will do the same to you." You then saw an axe from the deceased’s house, which you took and started chasing him with it down to the beach and the deceased ran into a nearby house for protection. On seeing that, you threw the axe at the deceased but it failed to reach any part of the deceased and fell to the ground. Instead of remaining in the house, the deceased jumped down, picked up the axe and charged toward you. You grabbed him and both of you struggled to over power the other and fell down on the ground in the process. At that point you managed to get hold of the axe and cut him twice, the first one on his knee and the second from his face down to his jaw area. The deceased eventually died from the injuries you inflicted upon him. 

Allocutus and Submissions

3.	In your address on sentence, you said sorry for what you have done and added that this is your first ever offence. You also reiterated that the deceased caused you to do what you did by reminding you that he killed your father and threatened to kill you also. Your lawyer added a few more details about you. He said, you are 36 years old and come from Pukari village in Malalaua District of this Province. You are married with two children. Your mother is alive but your father is deceased, being killed by the deceased. You are the first born out of two brothers and three sisters. You have no formal education and no formal employment. You are a member of the United Church. Further, he pointed out that, you have been in custody for 1 year 10 months.

4.	Your lawyer proceeded to make submissions in relation to the kind of sentence you should receive for killing the deceased. He then highlighted the factors going in your favour, namely, your guilty plea, your expression of remorse, being a first time offender, no preplanning and arming yourself to kill the deceased and that you were provoked in the non legal sense. At the same time, your lawyer correctly pointed out that you committed a very serious offence which is prevalent and that you used a dangerous weapon, an axe, to prematurely bring to an end a human life. Finally, your lawyer referred the Court to the recent Supreme Court decision in Manu Kovi v. The State, which provided guidelines for sentencing in all homicide cases and submitted that your case falls in the third category under those guidelines for murder cases. That category attracts sentences between 20 and 30 years. 

5.	Counsel for the State Mr. Mark, apart from pointing out that you were not provoked in the legal sense; agreed essentially with your lawyer’s submissions. In taking that position, counsel for the State emphasised the fact that you committed a very serious and prevalent offence using a dangerous weapon, which was an axe.

6.	 The issue before me then is, what is the appropriate sentence for you? This issue can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines, trends and tariffs per the Supreme and National Court judgments and the particular circumstances, in terms of the factors in your aggravation as well as those in your mitigation. I will therefore, first turn to a consideration of the offence and its sentencing guidelines and trend. 

The Offence and Sentencing Trend

7.	Section 300 (1) of the Criminal Code prescribes the offence of murder and its penalty of life imprisonment, subject to s. 19 also of the Code. In the exercise of the discretion vested in the Courts by s. 19, the Courts have been imposing sentences lower than life imprisonment in most cases. As I noted elsewhere, the decision in The State v. Laura (No. 2), provide the following guidelines for sentencing in murder cases: 

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; and

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.

8.	As early as my decision in The State v. Raphael Kimba Aki (N0.2), I reviewed the above sentencing guidelines and observed and said as follows: 

"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."

9.	The Supreme Court in its recent judgment in Simon Kama v. The State (2004) SC740, made the point that, Parliament having considered all things provided for three categories of homicide cases under the Code. Wilful murder under s.299 for a person killing with an intention to kill the deceased or another person, murder under s. 300 for a person killing another person out of an intention to do grievous bodily harm and killings without either an intention to kill or an intention to do grievous bodily harm as manslaughter under s. 302. As such it was not right for the courts to further categorize homicide cases. At the same time, that decision endorsed the observations and suggestions in The State v. Raphael Kimba Aki (N0.2). It then proceeded to review the approach to sentencing and the suggested tariffs at page 22 and said: 

"… 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) and Simbe v The State 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 ranges 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."

10.	The Supreme Court endorsed these guidelines and views in its other decisions in Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State and Kepa Wanege v. The State. In the former, the appellant appealed against a sentence of 50 years for murder out of a failed armed robbery. The Supreme Court dismissed that appeal on the basis that the sentence was lenient. It said the appellant should have been given the maximum of life imprisonment. In the later case, the appellant appealed against a sentence of 20 years also for murder. The Supreme Court dismissed that appeal for the same reason. There, the Court noted that, the appellant had intended in association with his father to kill the deceased who was not armed in anyway over a pre-existing land dispute. The appellant used an axe to commit the offence.

11.	Since then the National Court has applied these guidelines to arrive at decisions on murder cases. The decision of Cannings J.’s, in The State v. Charlie Langu (No 2), is a good example of that. There, his Honour noted and I agree that:

 "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 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." 

12.	Applying the guidelines to the case before His Honour, His Honour imposed a sentence of 25 years on a charge of murder following a conviction after trial. The prisoner committed the offence in pursuit of an unlawful purpose, namely attacking another family from one village to the other.

13.	The decision in the Manu Kovi case is the latest decision of the Supreme Court on touching sentences in murder cases. That decision agreed with the decision in the Simon Kama case that the time has come for an increase in the penalties and recommended that sentences in murder cases be increased as follows:

1.	In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors. 

2.	In a contested or uncontested case, with mitigating factors and aggravating factors, a sentence of 16 – 20 years imprisonment.

3.	 In a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20 – 30 years. 

4.	In contested or uncontested cases, the maximum of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons substances; summary execution style killings; killings in full view of public without regard for the safety and lives of others, etc. These are cases where there are no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime." 

14.	It is obvious to me that unlike the last category, the decision in Manu Kovi case does not provide a clear guide as to the kind of ordinary or special aggravating and mitigating factors it is talking about in each of the other categories. The position was clear under the Laura (No. 2) and the Lawrance Simbe v The State case as modified by the Simon Kama decision. In the circumstances, I find that the Manu Kovi decision with respect fails to provide a clear guideline. I will therefore use both Manu Kovi and Simon Kama to try and identify the category under which your case falls and approach your sentence accordingly. 

Your Sentence

15.	As already noted, your lawyer with the endorsement of the State’s lawyer submitted that your case falls into the third category under the Manu Kovi guidelines which attracts a sentence in the range of 20 to 30 years imprisonment. Appreciating what I said about the guidelines under the Manu Kovi decision, I need to consider that submission in the light of the guidelines under Manu Kovi and Simon Kama cases. This Court needs to determine whether your case in fact falls under the category submitted and the appropriate sentence for you under the relevant category.
 
16.	In order to determine the issues just presented, I note and take into account your family background as outlined by your lawyer in his submission. I also need to take into account both the factors for and against you. I do that by first considering the factors in your favour. Accordingly, I first note in your mitigation that, you pleaded guilty to a serious offence which carries a maximum penalty of life imprisonment. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. Further, it avoided the need for the relatives of the deceased to come into Court and relive the grief and pain your actions have caused them.

17.	Secondly, I take into account the fact that you acted under some provocation or self defence but in the non legal sense. That is to say you appear to have had some good reason to act in the way you acted on that fateful day but are not sufficient to fully exonerate you from your criminal responsibility. I note that you approached the deceased to shake his hands which he refused and said something to you that was provocative. He reminded you of him killing your father and indicated that he would also kill you. That caused you to get yourself armed with an axe that was there and started chasing the deceased with it. He out ran you and went for cover or protection in someone else’s house. So you threw the axe at him. The axe missed him and fell to the ground. The deceased then picked up the axe and charged toward you. You had the option to run away but you did not. Instead, you stood and grabbed hold of the deceased and both of you struggled with one trying to over power the other. You succeeded and also successfully disarmed the deceased. For the second time, you had the opportunity to run away but you did not and cut the deceased twice. You had opportunity to cool off and appreciate that you did not have to kill the deceased but you did. In other words, you did not act in the heat of the moment or that you had no other choice but to kill the deceased in the way you did. Correctly therefore, you did not raise the legal defense of provocation or self defence. I do accept however that, unlike some other senseless killing cases, I have had to deal with in this circuit, you did have some reason to kill the deceased.

 18.	Thirdly, I note your saying sorry to the deceased relatives, this Court and the community. However, it is clear that you have not paid any compensation, although you did mention in your record of interview with the police that your people were going to pay some compensation. There is also no evidence of you trying to appease the wrong and loss you have brought upon the deceased’s relatives. As I said in a large number of cases already, a mere expression of remorse means nothing unless it is accompanied by something tangible like the payment of compensation personally by the offender.

19.	Fourthly, I note that you cooperated with the authorities since the commission of the offence and ultimately concluded with your guilty plea. Unlike some other offenders I had to deal with in this and other circuits, you freely admitted to committing the offence in your record of interview with the police. That made police work much easier. Then you faithfully remained in custody awaiting your trial for the period you have been in custody. I contrast your case with the case of Elias Peter Wano Miva who escaped from lawful custody. Finally, you came to Court and freely admitted to committing the offence. To my mind this shows preparedness on your part to accept responsibility for your own actions. 

20.	Finally, I note that, this is your first ever offence. That is to say for the 36 years you have lived on this earth, you have not committed any criminal offence. Usually, the law says that, first time offenders like you should receive a sentence lower than those imposed against repeat offenders. This is necessary to demonstrate that, the more a person gets into trouble with the law, the more punishment he or she will receive on the premise that the past punishments have failed to serve their intended purpose of deterring an offender from getting into trouble with the law again.

21.	Against the above mitigating factors there are number of factors in aggravation. First, the offence you committed is a prevalent offence. The ready taking away of human life is on the increase throughout the country and there are calls by the community for strong and deterrent sentences with a view to stopping you as the offender and others from committing these kinds of offences. The foregoing discussion of the relevant sentencing trend and tariffs testify of this. I sincerely hope that the kind of sentences the Supreme Court has suggested and are being imposed by the courts now will go toward a deterrence of you and other like minded persons from taking away the lives of other people regardless of reasons for killings. As I just said in the other cases a while ago, calling ourselves a Christian nation is hypocritical. We are doing the very things true Christians are not supposed to do. Jesus Christ the head of all Christians set the best example for us all. Instead of following his example, we our doing our own things as if we came into being and exist on our own might and strength and a readily killing others as if we have the right to give and take away their lives and or otherwise doing physical and other harm to others. There has got to be a repentance resulting in a stop to all these unchristian attitudes and behaviours for the betterment of our nation.
 
22.	Secondly, you used a dangerous weapon an axe to cut, injure and cause the death of the deceased. At the same time, however, I note that you did not pre-plan and arm yourself with the axe. Rather, what the deceased said to you on that fateful day caused you to arm yourself with the weapon which was there. It is clear to me that if the axe was not there, you could not have used it. Nevertheless, I note that you used a dangerous weapon. You had time and opportunity as earlier noted to walk away from attacking and thereby avoid directly causing the deceased death, but you did not do that.

23.	Weighing the factors for and against you, I note that they seem to even out. Noting what I have already said about the lack of clarity in the Manu Kovi decision, I am of the view that, in the particular circumstances of your case, your case falls under category (b) of Simon Kama and the third category under the Manu Kovi. In both cases the maximum of the suggested sentences is 30 years. Given my finding that factors in your aggravation and those in your mitigation appear to even out, I do not consider a sentence up to 30 years is appropriate. I consider a sentence of 22 years is appropriate and I impose that sentence against you.

24.	Of the head sentence of 22 years I order a deduction of the period of 1 year, 9 months, 3 weeks and 2 days you have already spent in custody whilst awaiting your trial and sentence. That will leave you with the balance of 20 years, 2 months and 1 day, yet to serve. I order that you serve that sentence in hard labour at the Bomana Correction Services. A warrant of commitment in those terms shall issue forthwith.

___________________________

Public Prosecutor: Lawyers for the State 
Public Solicitor: Lawyers for the Prisoner