N3492

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 907 OF 2007

THE STATE

V

JESSIE BALU

Mendi: Makail, AJ
2008: 25 August
: 8 & 15 May

CRIMINAL LAW - wilful murder - plea - sentence - Criminal Code - section 229 - deceased youthful offender - meaning of juvenile - Juvenile Act 1991 - section 1 - age of offender disputed and uncertain - whether offender is juvenile - determination of age of offender - absence of birth certificate - determination of age based on physical appearance and maturity of offender - jurisdiction of National Court - Juvenile Act 1991 - sections 1, 3, 4 & 18 - pay killing - deceased killed father of prisoner.

CRIMINAL LAW - wilful murder - sentence - principles of - mitigating and aggravating circumstances - mitigating factors - guilty plea - first offender - remorseful - special circumstances - whether prisoner a youthful offender - aggravating factors - use of homemade shotgun - intention to kill deceased - pay back killing - premeditated - shot at close range - maximum penalty - death - penalty ought not to be imposed - sentence of 25 years imposed - Criminal Code - section 229.

Cases Cited:

Goli Golu -v- The State [1979] PNGLR 653
Avia Aihi - v - The State (No.3) [1982] PNGLR 92
Ure Hane -v- The State [1984] PNGLR 105
The State -v- Charles Ombusu (Unnumbered & Unreported Judgment of 17th February 1995)
Charles Ombusu -v- The State [1996] PNGLR 335
The State -v- Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (Unnumbered & Unreported Judgment of 7th February 1997)
The State -v- Yapoko Imbuni & Ors (1998) N1558
State: SCRA 10 of 1997 (Unnumbered & Unreported Judgment of 04 May 2000)
Anna Max Maringi -v- The State (2002) SC702
The State -v- Arua Maraga Hariki (2003) N2332
The State -v- Kepak Langa (2003) N2462
The State -v- Ben Simakot Simbu (No.2) (2004) N2546
The State -v- Hungi Koeskapi (2004) N2654
Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa -v- The 
The State -v- Tomkuku Herman Itagau: CR No 1522 of 2005
Manu Kovi -v- The State (2005) SC789
(Unnumbered & Unreported Judgment of 24 October 2006)

Counsel:

Mr J. Kesan, for the State
Mr M.Mumure, for the Prisoner

SENTENCE

25 August, 2008

1. MAKAIL AJ: On 8 May 2008, I convicted you on one count of wilful murder of one Tamina Kupaloma under section 299 of the Criminal Code after you pleaded guilty to the crime and also after having satisfied me from the deposition presented by the State that the charge has been sufficiently made out against you.

2. Your lawyer, Mr Mumure requested for a Pre Sentence Report to be furnished to me for consideration before I pass sentence on you. Upon that request, I ordered the Probation Officer, Mr Jopok Akepalua to provide one by 14 May 2008. That Report was not provided by that date due to the absence of the Probation Officer and I further extended the order to 30 May 2008. That Report has now been provided and I have considered it. 

BRIEF FACTS

3. The facts put to you on arraignment were that on the morning of 30 May 2006 between the hours of 6 o’clock and 7 o’clock you were in your village at Rora in Kagua of the Southern Highlands Province. You were in the company of two other persons and you were armed with a homemade gun. The three of you proceeded in search of the deceased Tamina Kupaloma because it is alleged that he killed your father.

4. You laid in the nearly bushes waiting for him and when he came out of the house to go to the river to wash, you shot the deceased with the home made gun on his left chest at close range. The deceased fell down and died instantly. The State alleged that when you discharged the homemade gun in the way you did, you intended to cause death to the deceased contrary to section 299 of the Criminal Code.
 
ALLOCUTUS

5. On your allocutus, you told the Court the following:

1.	You are very sorry for committing the crime.

2.	You said sorry to God and sincerely apologized to the relatives of the deceased for killing the deceased.

3.	You also said sorry to the people of your community for committing the crime.

4.	You have never appeared before the Court and this is the first time and you ask the Court to be merciful to you and impose a lesser sentence on you.

5.	You have killed the deceased because he had previously killed your father. You killed him as an act of revenge or pay back.

THE LAW

6. Section 299 of the Criminal Code provides as follows: 

"299.		Wilful murder

(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2)	A person who commits wilful murder shall be liable to be sentenced to death".

7. The prescribed penalty for the crime of wilful murder pursuant to section 299 of the Criminal Code is death. Depending on the factual circumstances of a case under consideration, the Court can either impose the prescribed maximum of "death" or a life imprisonment. This Court is vested with such sentencing discretion under section 19 of the Criminal Code.

PARTIES’ SUBMISSIONS

8. Your lawyer, Mr Mumure gave the following as your personal details and asked me to take them into account in my determination of an appropriate sentence for you. First, you are a youthful offender because at the time you committed the crime, you were only 8 years old. At the time of hearing your plea, you are 10 years old. On that basis, he asked me to treat you as a juvenile and give you a lesser sentence.
Secondly, you come from Katiloma village in Kagua of the Southern Highlands Province. Your father is dead because he was killed by the deceased but your mother is still alive. 

9. In mitigation, Mr Mumure submits that first, you pleaded guilty to committing the crime, thus saving the Court’s time and resources to conduct a full blown trial to determine your guilt. Secondly, he submits that you are a first offender, having no prior convictions. Thirdly, you have expressed remorse and apologised to the Court and your whole community for committing this crime. You have also apologised to the relatives of the deceased for committing this crime.

10. Fourthly, there was de facto provocation. You shot the deceased because he shot and killed your father. It was an act of revenge based on a belief that it was justified rather than a deliberate one.

11. Finally you have been in custody awaiting your trial since you were apprehended and detained on 30 June 2006 which was a month after you committed the crime.

12. Mr Kesan of counsel for the State first opposes the submissions made on your behalf by Mr Mumure that you should be treated as a juvenile on that basis that there is no evidence before the Court to show that you are 10 years old. He submits that there is evidence before the Court through your own answer in the Record of Interview with the police on 28 July 2006 that you are 17 years old. Based on that age at that time, he submits that you would be 19 years old by this time.

13. Next, he submits that your case falls under the third category of wilful murder cases set out in the case of Manu Kovi -v- The State (2005) SC 789 on the basis that there are special aggravating factors present in your case. First, you used a home made shot gun to kill the deceased. Secondly, it was premeditated and there was preplanning before you killed the deceased in that you and your two friends set out early in the morning to ambush the deceased at his house which was the least expected time of the day to an unsuspecting victim like the deceased.

14. Thirdly, he argues that this is a clear case of pay back killing where you had a strong desire to kill the deceased because the deceased had previously killed your father.

15. Finally, he submits that the crime of wilful murder is prevalent in the country and of course in the Southern Highlands Province where you hail from. In almost all of wilful murder cases, bush knives, kitchen knives and shot guns have been the medium for the crime of wilful murder.

16. In the circumstances, he submits that the aggravating factors far outweigh the mitigating factors in your favour and the penalty of life imprisonment is called for.

Age of Prisoner

17. The issue of your age is very important and must be settled first because it will decide how I should deal with your case. If I find that you are 10 years old, I must treat you as a juvenile and determine your sentence according to the National Court’s power under section 1 of the Juvenile Act 1991. Section 1 of the Juvenile Act 1991 defines a "Court" to also include the National Court and gives jurisdiction to the National Court to deal with juvenile cases as follows:

"Court" mean -

(a)	a Juvenile Court; or

(b)	a court of summary jurisdiction or the National Court, exercising the jurisdiction of a Juvenile Court under this Act". (Underlining is mine).

18. Also, section 1 of the Juvenile Act 1991 defines a juvenile as "a person aged not less than seven years and less than 18 years". I interpret this to mean that if you are between the ages of 7 and 18, by law, you are a juvenile.

19. And so, in your case, there is no Birth Certificate to assist me to determine precisely your age. From the information I have thus far I am unable to precisely determine your age and also the State disputes your claim that you are 10 years old. 

20. Your claim that you are 10 years old seems consistent with the Pre Sentence Report where the Probation Officer has reported that you are 15 years old and doing Grade 3 whilst on the other hand, your own answer in the Record of Interview with the police on 28 July 2006 you told them that you are 17 years old. You would by now be 19 years old.

21. Whilst there are two different age being proposed for you, I have had the benefit of closely observing your physical appearance during the hearing and I am satisfied that you do not look like a 10 year old boy. On the contrary, you look like you are around 19 years old. You are physically matured although you are short in height. 

22. This, notwithstanding the absence of any evidence of the precise date of birth such as a Birth Certificate, I am entitled to determine your age based on your physical appearance pursuant to section 3(2)&(3)of the Juvenile Act 1991. It states:

"3.	Determination of age.

(1)	Where a person apparently under the age of 18 years is arrested or detained and there is doubt or dispute as to the age of the person, the age shall, subject to Subsection (2) and in the absence of evidence to the contrary be as determined by a Juvenile Court Officer.

(2)	Where in any proceedings under this Act, there is doubt or dispute as to the age of the defendant, the age shall, in the absence of evidence to the contrary, be as determined by the Court.

(3)	In making a determination of age under this section, regard shall be had to -

(a)	the development, maturity and conduct of the juvenile; and

(b)	any other information that may be available".

23. Therefore, I will not treat you as a juvenile and it follows that the provisions of sections 4 and 18 of the Juvenile Act 1991 will not apply to your case. Section 4 states:

"4.	Interests of Juvenile paramount.

In the proceedings and actions under this Act, the interests of a juvenile shall be the paramount consideration".

24. And section 18 of the Juvenile Act states as follows:

"18.	Exercise of jurisdiction by National Court.

(1)	Where a juvenile is charged with homicide, rape or other offence punishable by death or imprisonment for life—

(a)	the committal proceedings shall be dealt with by a Juvenile Court; and

(b)	subject to Subsection (2), the trial shall be heard and determined by the National Court.

(2)	For the purposes of Subsection (1)(b) -

(a)	the provisions of this Act with respect to procedure shall have effect; and

(b)	the National Court may exercise the sentencing powers conferred by this Act on a Juvenile Court".

25. Proceeding on the premise that you are not a juvenile, I now consider an appropriate sentence for you. First, I note that the National Court has in a good number of wilful murder cases imposed the ultimate penalty, death. And so I must remind you that there is nothing stopping me from imposing a death sentence on you. 
 
26. Some of these past cases are The State -v- Charles Ombusu (Unnumbered & Unreported Judgment of 17th February 1995) but on appeal by the prisoner, the Supreme Court comprising of five men bench upheld the appeal in both conviction and sentence for rape and wilful murder were quashed on technical grounds only. See Charles Ombusu -v- The State [1996] PNGLR 335.

27. The next case is that of The State -v- Steven Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa (Unnumbered & Unreported Judgment of 7th February 1997). In that case, His Honour Woods J sentenced the three accused to death for what His Honour there considered to be one of those worst type cases. When the three appellants appealed, against both conviction and their sentences of death, after grant of legal aid by the Public Solicitor a Supplementary Notice of Appeal was filed on 23rd of July 1997 in which they appealed against conviction only. The Supreme Court consisting of Amet CJ, Kapi DCJ (as they were then) and Sevua J dismissed the appeal against conviction, (see Loke Ume, Charles Patrick Kaona & Greg Wawa Kavoa -v- The State: SCRA 10 of 1997 (Unnumbered & Unreported Judgment of 4 May 2000).

28. Very recently, a number of cases have been considered to be amongst the "worst type" of cases. Since the sentence of death in The State- v - Steven Loke Ume & 2 Ors’ case (supra) no death sentences were imposed until 2003 when two death sentences were imposed. In The State -v- Arua Maraga Hariki (2003) N 2332, His Honour Salika J imposed the death penalty on the accused who killed two young men whom he had been drinking alcohol with on the evening of the date of the crime. For one of the victims in that case, there was clear evidence that the accused strangled him until he died. On the other victim, the accused was found guilty on circumstantial evidence. That was a trial and the Court there found that case to be amongst one of the worst type category.

29. Still in 2003, the late His Honour Jalina J imposed the death penalty in The State -v- Kepak Lanaga (2003) N2462. In that case, the prisoner was charged with the wilful murder of one John Daniel at Imi village in Wabag, Enga Province. The deceased there was chopped several times on the head by the prisoner and other clansmen in an ambush on a group of people who were with the victim. In consideration of whether or not the death penalty should be imposed, His Honour made the following observations at page 13 of his unreported judgment:

"So in the present case, considering the circumstances of the killing which was an ambush killing carried out in cold blooded, I am of the view that ambush killings such as the present one must be categorized as among the "worst type" cases. Just recently in Goroka in The State -v- Alois Erebebe and anor Batari, J imposed life sentences instead of death sentences on the prisoners who ambushed and killed nine (9) people the majority of whom were members of a single family. I do not have the benefit of His Honour’s judgment to determine why the court’s sentencing discretion exercised against imposition of the death penalty but to my mind, with respect, if ambush killing in a situation where the victims were unaware and therefore unable to defend themselves cannot be categorized amongst the "worst type" cases, then what kind of killing would warrant the death penalty"

30. In The State -v- Ben Simakot Simbu (No.2) (2004) N2546, the accused was charged for wilful murder. He was tried and convicted then was sentenced to death. The accused in that case wilfully murdered the mother and her child by using a piece of iron to strike the mother’s head several times causing instant death. The helpless 2 year old child was also hit after the mother had been killed. They both died instantly. In the case above, the accused went to where the victims were and asked the mother to borrow a life chicken. She refused and the accused asked yet the second and third time. When the victim refused, the accused then administered fatal blows first on the mother followed by the child. The accused in that case was sentenced to death by His Honour Kandakasi J. The case above was considered to be one of those worst cases.

31. A case which is directly on point is The State -v- Yapoko Imbuni & Ors (1998) N1558, a case of payback multiple killing in ambush attack, killing three (3) members of the same family, a father, mother and son after blocking the road along Wabag section of the Highlands highway. A trial was held to determine their guilt and after finding four of the five accused guilty, His Honour Akuram J sentenced them to life imprisonment.

32. In all of these cases, the Courts have been guided by the principles of sentencing for wilful murder cases which have been enunciated by the Supreme Court in three earlier cases at the time when life imprisonment was the maximum penalty for the offence of wilful murder are stated in Goli Golu -v- The State [1979] PNGLR 653:

"In sentencing for wilful murder, the maximum penalty of life imprisonment should be reserved for the most serious instances of the offence". See also Avia Aihi - v - The State (No.3) [1982] PNGLR 92 and Ure Hane -v- The State [1984] PNGLR 105 on the foot-note the Supreme Court said:

"When considering whether or not the maximum penalty of life imprisonment should be imposed for wilful murder, the court should, in so far as the law allows, categorize those "worst type" cases for which the penalty of life imprisonment should be reserved and then determine whether the particular offender comes within that category: the crime must warrant the penalty not the offenders."

33. In the same case above His Honour Bredmeyer J without exhausting the list of what His Honour categorized to be the worst type of cases he set out a list of cases he considered to be serious kinds of wilful murder from pages 107 - 109 of the judgment as follows:

"1.	Wilful murder committed in the cause of committing a theft, robbery, a break and enter or a rape.

2.	Wilful murder of a policeman or a prison officer acting in the execution of his duty.

3.	Wilful murder committed in the cause of or for the purposes of resisting, voiding or preventing lawful arrest or assisting in an escape from a lawful custody.

4.	Wilful murder of a person in police or court custody.

5.	Wilful murder in a payback killing situation of a completely innocent man.

6.	Wilful murder in a second or third murder.

7.	Any murder where the offender has a long record of violence such that he is likely to commit such offences in the future.

8.	Wilful murder of the Governor General, the Prime Minister, the Leader of the Opposition, the Speaker of the National Parliament, the Chief Justice, a Bishop, a Visiting Prime Minister, the Pope, or other V.I.P’s".

34. At page 109 of the above case, His Honour said:

"I consider that if a wilful murder falls into any of the above categories, a Judge should seriously consider life imprisonment as the appropriate punishment. He should not automatically impose a life sentence but must seriously consider it. Having categorised the crime as one in which life imprisonment should be seriously considered, the judge then must consider the seriousness of the particular murder in the case of seriousness of the murders in that category."

YOUR CASE

35. I have considered the evidence and the submissions of both counsel and generally agree with their submissions that whilst section 299 of the Criminal Code gives the Court the power to impose a sentence of up to death for the crime of wilful murder, there is a discretion given to the Court under section 19 of the Criminal Code to impose a lesser sentence.

36. To begin the exercise to determine what would be the appropriate sentence to impose on you, I must repeat here for the record that crimes of wilful murder have been a common occurrence and which this Court has been inundated with from time to time.

37. Thus I consider your case is not an isolated case of pay back killing. On the contrary, it is another example of one of the so many cases of pay back killing. In the recent Supreme Court Judgment in the case of Manu Kovi (supra), the Supreme Court in using the range of sentences noted in Anna Max Maringi -v- The State (2002) SC702 as a guide, suggested the following tariff:

"1.	In an uncontested case, with ordinary mitigating factors and no aggravating factors, a starting point of 7 years up to 12 years. A sentence below 7 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 starting point of 13 - 16 years.

3.	In a contested or uncontested case, with special aggravating factors and mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 17 - 25 years.

4.	In contested and uncontested case with special aggravating factors - Life imprisonment for the worst cases. The presence of mitigating factors is rendered insignificant by the gravity of the offence. These are cases which involve viciousness, some pre-planning, use of a weapon and complete disregard for human life". 

38. The question is; which category does your case fall under? To my mind, your case fits into the third category in the Anna Max Marangi’s case (supra) and accordingly, the penalty should be between 17 and twenty-five (25) years imprisonment. However, as noted earlier, in the most recent case of Manu Kovi (supra), the Supreme Court reviewed and increased the sentence in the third category in Anna Max Maringi’s case (supra) to between 20 and 30 years imprisonment.

39. Thus, I consider your case falls into the third category in the Anna Max Maringi’s case (supra) which would be 17 to 25 years imprisonment but increased to 20 to 30 years imprisonment if we apply Manu Kovi’s case (supra) latest sentencing tariffs.

40. And so I will start with between 20 to 30 years imprisonment and increase or decrease the term depending when I consider each of the mitigating and aggravating factors in your case.

41. That is the crime committed by the prisoner was done as an act of revenge or pay back for the killing of his late father by the deceased. I find the circumstances of the present case to be so highly aggravating. Here is the case where you had laid in waiting with your accomplices for the deceased to appear and when he did, you shot him with a home made gun. Such life is now gone forever, never to be recovered.

42. To my mind, I note that the kind of crime you have committed is a common occurrence and prevalent in our society. I consider that it is a serious crime you have committed. You have killed another person. It is aggravated by a number of factors. First, there was use of an offensive weapon, namely a homemade shot gun. Secondly, you had the intention to kill the deceased. This is because the deceased was alleged to have killed you father. What you did was a pay back killing. Thirdly, it was premeditated. You planned to kill the deceased and it was executed as planned by searching for the deceased and shooting him at close range. 
43. The recent Supreme Court case of Manu Kovi (supra) set out the guidelines for wilful murder cases as follows:

"Wilful Murder

1.	Term of Years: 15 - 20 years

In an uncontested case, in a case with ordinary case with mitigating factors and no aggravating factors, we suggest a starting point of 15 years up to 20 years. 

Sentences below 15 years should be rarely imposed except in exceptional cases with special extenuating circumstances and special mitigating factors.

2. 	Terms Years: 20 - 30 years.

In a contested or uncontested case, with mitigating factors and with aggravating factors a sentences in the range of 20 - 30 years is appropriate. Examples include the following types of cases:

1.	No motive for killing.

2.	Multiple wounds resulting in instant death.

3.	Vicious attack on innocent person resulting in fatal wounds inflicted on vulnerable parts of the body. 

4.	Deliberate shooting with gun following argument.

5.	Life Imprisonment -

If the Court considers that the case falls into the worst category then the Court should consider if there are "circumstances which operate so as to diminish the culpability of the prisoner, not in the strict sense, but broadly.

44. I note your background as submitted by your lawyer and that you are a first time offender. The State does not dispute this. I accept you have pleaded guilty to the charge and this is a sign of you accepting criminal responsibility; a sign of you accepting that what you did was wrong. You had co-operated with the police by also admitting to committing the crime. This has saved the Court time and the need to go through a full trial to determine your guilt.

45. I am satisfied that you are remorseful of the crime you have committed. You are sorry for the wrong you have committed and you have also apologized to the relatives of the deceased and also to your own community. I also take into account that you are a first time offender. You have not broken any law before and that you are a young man.

46. The Pre Sentence Report shows that you come from a religious background because your family attends PNG Bible Church where your mother is an elder in the church. Thus, I am satisfied that what you did was something that your family would not have advocated nor encouraged within the family circle and certainly would not have condoned. For you personally, it was something that just happened.

47. I also note from the Pre Sentence Report that you and your relatives paid compensation to the deceased’s relatives of 12 pigs and K300.00 cash to make peace with the relatives of the deceased. This peace ceremony was organized by the Village Peace and Good Order Committee. The deceased’s relatives were to also pay compensation to you and your relatives for the death of your late father but they did not. I take that into account in my assessment of an appropriate sentence for you.

48. In addition to the Court’s power to impose penalties under sections 299 and 19 of the Criminal Code, the Court also has power under section 2 of the Criminal Law (Compensation) Act 1991 to order you to pay compensation to the victim. However, I will not order you to pay compensation to the relatives of the deceased because in my view, first, you and your relatives have already paid compensation to the relatives of the deceased. Secondly, according to the Pre Sentence Report, the Probation Officer has also given a short report of your financial situation. You and your family have lost everything when the relatives of the deceased destroyed food gardens and killed domesticated animals like pigs and chickens and stole cash. Thus, you and your relatives are placed in a handicap position to raise money and pigs to give as compensation to the relatives of the deceased. 

49. But I note that you have used a homemade shot gun to shoot the deceased. The fact that you have used a homemade shotgun to shoot the deceased aggravates the seriousness of the crime because it was a shot gun manufactured outside a licensed gun dealer or manufacturer. I also note that there is no evidence before me to show that you were licensed to manufacture it and to carry it.

50. The Court must not be seen to condone people using home made fire arms to kill other people by imposing lesser sentence and I echo the same views as was expressed by His Honour Kandakasi J in The State -v- Tomkuku Herman Itagau: CR No 1522 of 2005 (Unnumbered & Unreported Judgment of 24 October 2006), a case of armed robbery where His Honour said: 

"Thirdly, your accomplice and you were armed with two weapons, a homemade pistol and a long barrel gun. The use of firearms in the commission of any offence is always a serious aggravating factor either on its own or in association with other aggravating factors. The actual firing of live ammunition as you did out of such weapons make the case even worse. Further, there is no evidence that neither you nor your accomplice has a license to carry either of the guns you had. Also there is no evidence that neither of you were authorized to manufacture homemade guns. In fact it is illegal to make guns and carry guns without a license. The use of such dangerous weapons to commit serious crimes like armed robbery and rape and such other serious offences are on the increase. Accordingly, it behooves the courts to impose sentences that have an element of deterring the use of such dangerous weapons". (Underlining is mine).

51. In your case there was a single shot from the homemade shot gun. It hit the deceased on the chest. I note the Post Mortem Report of Mt Hagen General Hospital dated 06 June 2006 by Dr Peter Bamne revealed that the following external findings:

1.	Chest:

•	Wound measuring 4cm x 4cm over the (L) clavicular line 5 cm below the nipple,

•	Multiple burn marks around the wound,

•	Plastic object at the entry site of the wound.

52. The internal findings of the injuries were more graphic in the following terms: 

1.	Chest:

•	Blood within the pleural cavity - 100 mls,

•	4th and 5th ribs smashed - anterior aspect mid clavicular line,

•	(L) lung parenchyma of the lower section smashed,

•	Multiple pellets within the pleural cavity, and

•	Ruptured diaphragm.

2.	Abdomen :

•	Blood within the pleural cavity - 100 mls,

•	Ruptured stomach,

•	Left lobe of the liver smashed,

•	Mesentery and soft tissue, and

•	Multiple pellets within the abdomen cavity.

53. There is also a photograph of the deceased which I have looked at and I can clearly see a wound and lots of blood at the deceased’s left side chest. 

54. From all these evidence, there is no doubt in my mind that the external and internal findings of the wound are consistent with the kind of wound that may be inflicted by shot fired from a shot gun, especially when it is fired from a close range.

55. Taking all these mitigating factors into account and weighing them against the aggravating factors present in your case, I consider that first it’s a little too late for you to say sorry now. The fact of the matter is that a life of another fellow human being has been prematurely terminated. 

56. But I consider your case is not one of those that would fall under the "worst" category of cases and I will spare your life. Having said that, I find that whilst your case is a pay back killing one and is similar to the case of The State -v- Hungi Koeskapi (2004) N2654, which was also a payback killing case, there is one factual difference and that is the deceased in the Hungi Koeskapi’s case (supra) was a completely innocent man and His Honour Lenalia J had no hesitation to sentence the prisoner to life imprisonment.

57. In your case, I find that there was de facto provocation in that the deceased killed your late father. No doubt he killed a blood relative of yours and that prompted you to kill him in return. Your father is not a complete stranger to you unlike the prisoner in Hungi Koeskapi’s case (supra) where he murdered a completely innocent man. 

58. And so under section 19 of the Criminal Code, the Court has discretion to impose a lesser sentence for this crime including suspending a sentence. I have ruled out a non custodial sentence as the crime you have committed is aggravated by the factors I have mentioned above.

59. In all the circumstances of the case I consider that a custodial sentence is appropriate and I will sentence you to 25 years imprisonment in hard labour. In that way, it is one of those cases where the Court is giving some assurance to the community that the Courts will protect the community against violent behaviour.

60. In the end, you are sentenced to 25 years imprisonment in hard labour at Buihebi Corrective Institution less 2 years and 2 months of pre-trial custody thereby giving you 22 years and 10 months to serve in hard labour. A Warrant of Commitment will be issued in due course.

Sentence accordingly.

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