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State v Young [2008] PGNC 212; N3548 (10 September 2008)

N3548

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1253 OF 2006
(NO. 2)

THE STATE

V

AMOS YOUNG of
KEWANSASAP, TUFI, ORO PROVINCE
Prisoner

Alotau: Davani .J
2008: 9th, 10th September

SENTENCE – Murder – trial - mob fight - death by stabbing - s.300 (1) (a) of Criminal Code Act

SENTENCE – Prisoner a bystander - stabbing not planned - attack, swift thrust of a knife

Facts
Prisoner was a bystander, watching a group of men shouting obscenities. However, he soon got involved. At that time, he was armed with a double edged knife. The prisoner assaulted one of the men. The deceased chased the prisoner, who then used the knife to stab the deceased and one other. The deceased died from the stab wound.

Issue

What is an appropriate sentence for an offence of this nature?

Held

1. The prisoner was at the scene of a mob fight involving his friends who were all under the influence of liquor.
   
2. Although there was no viciousness in the attack and that it was not pre-planned, that the prisoner should not have used the knife he had to attack and stab the deceased.
   
3. The aggravating factors far outweigh the mitigating factors.
   

Cases

Allan Peter Utieng v The State (2000) SCR 15 of 2000
Manu Koivi v The State (2005) SC789

Counsel:

P. Kaluwin, for the State
R. Yayabu, for the Accused

SENTENCE

10 September, 2008

1. DAVANI .J: On 9th September, 2008, after a trial, I found the prisoner guilty of one count of murder, charge laid under s.300 (1) (a) of the Criminal Code Act (‘CCA’).

Evidence

2. The evidence revealed that on 10th March, 2006 at Boda, Waema, in Alotau, the prisoner stabbed Simon Charlie, who died as a result of the injuries received from the stab wound.

3. The evidence is that the prisoner had come out of his house after hearing young men screaming obscenities at no one in particular. They were drunk. A woman called Anne Nedi stopped them, however, the deceased broke free from her grip and ran. He ran to the prisoner who then stabbed the deceased. The evidence is that the deceased went to hit the prisoner because the prisoner had hit one Philip Clement. However, that did not happen because the prisoner stabbed the deceased.

Allocatus

4. On allocatus, the prisoner said thank you to the ‘team’ who heard his case, that it was finally heard. However, he continued to maintain that he did not do the killing. In the same breath, he apologized to the deceased and his family, then asked the Court for a term that could see him find his old widowed mother still alive when he had fully served his term.

Aggravating factors

5. This matter proceeded to trial which meant the Court spent time shifting through the evidence to finally determine the verdict.

Mitigating factors

6. Although not a mitigating factor, the fact that the prisoner does not have any prior convictions, goes towards mitigation.

Analysis of evidence and the law

7. The death occurred after a mob fight. The evidence is the participants of this fight were all under the influence of liquor. The prisoner was an observer, but some how found himself caught up in the melee.

8. Those involved in the mob fight were known to the prisoner and were his good friends. The evidence is that the deceased was unarmed. For whatever reason, the prisoner had with him the knife that he used to attack the deceased and also one Philip Clement. A medical report tendered into Court by consent prepared by a Dr Westin Seta of the Alotau General Hospital and dated 15th June, 2006, describes the wound as being 1cm in length in the right chest and that death was "...caused by a knife wound." Both counsel referred me to Manu Koivi v The State (2005) SC 789 where the Supreme Court placed tariffs for murder cases into 4 categories. Ms Yayabu asked the court to sentence her client to a term with the second category of Manu Koivi (supra) which is that on a trial or plea, where there are mitigating and aggravating factors, that where there was no strong intent to do grievous bodily harm, where a weapon was used, where there was some pre-planning and some element of viciousness, then a sentence of 16 to 20 years should be imposed.

9. This case was a trial, there are mitigating and aggravating factors, there was no strong intent to do grievous bodily harm, a knife was used, there was no pre-planning, and certainly, no element of viciousness. The attack was a swift thrust of a knife but obviously with no thought of the consequences.

10. I note the prisoner’s concern about the welfare of his family. The Supreme Court has said that this is now of no consequence. That the prisoner’s concerns have little or no effect on a sentence that befits a crime. In other words, the prisoner must be sentenced accordingly (see Allan Peter Utieng v The State (2000) SCR 15 of 2000 23.11.00)

11. I found that a sentence of 17 years is appropriate under the circumstances.

12. This will be reduced by the time spent in custody on remand. Both Defence Counsel and CS could not give me that information in Court. In any event, time spent in custody on remand will be applied towards reduction of the head sentence of 17 years. The prisoner shall serve the reduced period in hard labour.

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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused