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State v Pake [2007] PGNC 228; N5051 (24 August 2007)

N5051

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 315 0F 2007

THE STATE

V

CHARLES RAVA PAKE

Kimbe: Cannings J
2007: 10 July, 7, 16, 24 August

CRIMINAL LAW – sentence – murder – offender killed victim by suddenly slashing him with bushknife – vicious, surprise attack on innocent, unarmed man – guilty plea.

A man pleaded guilty to murder. The offender approached a group of friends who were sitting down telling stories in a village setting. He suddenly attacked one of his friends with a bushknife, inflicting a fatal wound to his neck.

Held:

(1) The starting point for sentencing for this sort of murder (a vicious attack, with strong desire to do grievous bodily harm) is 20 to 30 years imprisonment.

(2) Mitigating factors are: only one attacker; co-operated with police; compensation, peace and reconciliation; pleaded guilty; first-time offender.

(3) A sentence of 20 years was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
Simon Kama v The State (2004) SC740
The State v David Yakuye Daniel (2005) N2890
The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868
The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06
The State v Kevin Wakore CR 378/2003, 16.08.07
The State v Sebastian Justin Kelly CR 75/2001, 20.05.05

SENTENCE

This was a judgment on sentence for murder.

Counsel

F Popeu, for the State
O Oiveka, for the offender

24th August, 2007

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of murder arising from the following facts. On 18 December 2006 the offender, Charles Rava Pake, a 25-year-old man from Buluwara village in the Talasea area of West New Britain Province, left his village and went to Volopai village, where the deceased, Henry Gambu, lived. Henry was a young man aged in his early 20s. Henry was sitting near the main road with two of his friends, telling stories. Charles approached them and asked for lime. They told him they had none and pointed him in the direction of someone's house where he could buy lime. Charles left that group, walked in the direction of the house the group had indicated, then returned five minutes later with a bushknife. He walked to where Henry was sitting. Charles was smiling and the young men sitting with Henry thought that Charles wanted to sit with them, so they shifted slightly to give him space to sit down. When Charles came near Henry, he suddenly lifted his bushknife, cut Henry once on the neck and ran off. The others rushed to Henry's aid and took him to Kimbe General Hospital but he died on the way. The post-mortem report shows that Henry died of cardio-respiratory arrest and cervical spine fracture. He had a deep lacerated knife wound to the back of the neck. Charles did not intend to kill Henry but intended to do him grievous bodily harm.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

This is my first time to be in court. Henry is my cousin-brother. We have paid compensation. Henry had done some bad things to my sister. He also said some bad things about me. I did not mean to kill him and when he died I was sorry. On the same day, Henry's relatives chopped my father and he is still injured from that attack. We have agreed that there will be a reconciliation ceremony in September. Please have mercy on me.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). He co-operated with the police and made admissions in his police interview. He said that the reason he attacked Henry was that he was doing bad things to his sisters.

PRE-SENTENCE REPORT

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

CHARLES RAVA PAKE: male, aged 25.

Residence: Buluwara.
Family background: mother and father from Buluwara – Charles is the fourth-born in a family of six.
Marital status: single.
Education: Grade 3, Walupai Primary School.
Employment: no formal employment.
Health: OK – no clearly apparent mental illness.
Financial status: earns income from sale of cocoa.
Plans: run a mini-trade store – look after his younger brothers and sisters who are still at school – change his life and avoid all trouble.
Offender's family's attitude: father and mother supportive – Charles had problems as a child, eg could not talk until five years old – slow learner at school – the family has already suffered due to reprisals by deceased's relatives, eg Charles' father was chopped and family properties destroyed.
Victim's family's attitude: they acknowledge receipt of compensation of K7,792.00 – there is still tension – they do not want more compensation; just want to see the offender given a long prison term.
Attitude of community: prior to the offence his behavioural record in the local community was not good – suggestions that his behavioural disorder is due to marijuana consumption – a lot or problems have developed between the two villages involved but this is settling down.
Assessment: could be a threat to the community.
Recommendation: not suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Oiveka highlighted the guilty plea, that the offender has no criminal record, first offender and that some compensation has been paid. Twenty years would be an appropriate sentence, he submitted.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that though it was only one swing of the bushknife, it was a lethal weapon and the attack was on a vulnerable part of the body, just as deadly as a frenzied attack. The sentence should be 25 to 30 years, he submitted.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. The Supreme Court has in recent times laid down sentencing guidelines for murder in two cases, Simon Kama v The State (2004) SC740 and Manu Kovi v The State (2005) SC789. As Manu Kovi's case is the more recent decision, I will follow it. Its starting point ranges are summarised in the table below.

SENTENCING GUIDELINES FOR MURDER: KOVI'S CASE

11. I agree with Mr Popeu's submission that as this was a vicious attack, exhibiting a strong desire to do grievous bodily harm, the case falls within category 3. The starting point is 20 to 30 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. Before I fix a sentence, I will consider other murder sentences I have handed down recently in West New Britain. These cases are shown in table 2 below.

SENTENCES FOR MURDER, WEST NEW BRITAIN, 2005-2007

STEP 4: WHAT IS THE HEAD SENTENCE?

13. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

1. Did the offender not directly kill the deceased? No, he killed him directly and almost instantly.
   
2. Was just one person involved in the attack? Yes.
   
3. Was there some intervening cause of death? No.
   
4. Did the offender not set out to hurt anyone? No.
   
5. Did the deceased or any other person provoke the offender in 'the non-legal sense', eg did the deceased abuse or assault them? Neutral. The offender says the deceased was doing bad things to his sisters but this is a vague explanation for his actions. It is not a mitigating factor.
   
6. Did the deceased have a pre-existing condition making him susceptible to serious or fatal injury by a moderate blow? No.
   
7. Can the attack on the deceased be classed as 'not vicious'? No. It was extremely vicious. It was a surprise attack on a person who was at the relevant time innocent and unarmed.
   
8. Can the death of the deceased be regarded as an unforeseeable consequence of the activity that the offenders were involved in? No.
   
9. Did the offender play a relatively minor role in the activity that led to the death? No.
   
10. Did the offender give himself up after the incident? Neutral.
    
11. Did the offender cooperate with the police in their investigations? Yes. He made admissions.
    
12. Has the offender done anything tangible towards repairing his wrong? Yes. There has been a concerted attempt at peace and reconciliation, as explained in the pre-sentence report.
    
13. Did the offender plead guilty? Yes.
    
14. Has the offender genuinely expressed remorse? Neutral. He did not actually say he was sorry in his allocutus but his remorse can be inferred from the payment of compensation.
    
15. Is this his first offence? Yes.
    
16. Can the offender be regarded as youthful or are his personal circumstances such that they should mitigate the sentence? Neutral.
    
17. Are there any other circumstances of the incident or the offender that warrant mitigation of the head sentence? Neutral.
    

14. After weighing all these factors and bearing in mind that there are five mitigating factors and seven aggravating factors, the head sentence should be within the starting point range. I impose a head sentence of 20 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

15. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is eight months, five days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

16. Because of the concerted efforts made by the offender's relatives towards peace and reconciliation and the reprisal attacks on the offender's relatives, particularly his father, I will suspend four years of the sentence on the following conditions:

(a) must reside at Buluwara and nowhere else except with the written approval of the National Court;

(b) must not leave WNB Province without the written approval of the National Court;

(c) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(d) must attend a church to be approved by the National Court every week for service and worship and assist the church in its community activities;

(e) must report to the senior Probation Officer at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;

(f) must not consume alcohol or drugs;

(g) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim's family;

(h) must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;

(i) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

17. Charles Rava Pake, having been convicted of one count of murder, is sentenced as follows:

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