N5465
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1365 OF 2006

THE STATE

V

MOSES NASRES

Kimbe: Cannings J
2008: 25 March, 4, 24 April

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – sentence after trial – killing of man by pushing an iron rod though his head – unprovoked attack – sentencing guidelines for wilful murder

A man was convicted after trial of the wilful murder of another man. The offender lay in waiting for the deceased as he walked along a track. As the deceased walked past, the offender emerged from behind some flowers and pushed an iron rod though the deceased's head, killing him instantly.

Held:

(1)	The starting point for sentencing for this sort of killing, in cold blood, involving an offensive weapon is life imprisonment. The vicious and callous circumstances of the killing and the planning involved almost put the case into the worst case category, warranting the death penalty.

(2)	However, the absence of any prior conviction and the fact that the case did not fit into any of the categories identified by the Supreme Court in Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 as warranting the death penalty, meant that this is not an appropriate case in which to impose the maximum sentence.

(3)	There were, on the other hand, insufficient mitigating factors to warrant a sentence less than life imprisonment, which was the sentence imposed.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Profitt v Florida 428 US 249
R v Peter Ivoro [1971-72] PNGLR 374
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Moses Nasres (2008) N3302

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel

C Sambua, for the State
B Tanewan & R Awalua, for the offender

24th April, 2008 

1. CANNINGS J: This is a decision on sentence for a man, Moses Nasres, convicted after trial of the wilful murder of another man, Sain Balos, at the squatter settlement called Wabag City, in Kimbe, in the early hours of Thursday 15 June 2006. 

2. Both the offender and the deceased are from Enga Province and Wabag City is home to people mainly from Enga. The night before, the offender was amongst a crowd that gathered at Wabag City to watch live television coverage of the second match of the annual State of Origin series between the Queensland Maroons and the New South Wales Blues. A fight broke out at Wabag City soon after the match ended and the offender's cousin, Paul Mark, who runs a trade store there, complained that there were too many drunkards around and that his light had been broken. He held the deceased and another man responsible for the property damage and told those present to go and kill one of them and that he would pay the compensation. The offender was living with Mr Mark at the time, having arrived in Kimbe only a matter of weeks or months beforehand. 

3. About three hours later, at 1.00 am, the deceased was walking with a young male friend and his sister along a track in Wabag City. They were heading to his sister's house, when the offender came out from where he had been hiding amongst some flowers. The offender stood up and attacked the deceased with an iron rod. He lifted the rod and stabbed the deceased on the right side of his head behind his eye. He pushed the iron rod hard with both hands and it penetrated the deceased's head and came out the other side. It was stuck in his head. The deceased died almost instantly. The court found that the offender intended to kill the deceased and that he had a motive to kill him in view of the remarks made by his cousin-brother shortly before the attack. Further details of the circumstances in which the offence was committed are set out in the written judgment on verdict (The State v Moses Nasres (2008) N3302).

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

Everything I need to say, I have said. The only other thing I have to say is that if I am sent to prison, I wish to be transferred to my home province.

PRE-SENTENCE REPORT

6. The report by the Community Corrections and Rehabilitation Service is not a favourable one. The offender is 26 years old, from Leilam village in the Kompiam area of Enga Province. He was a newcomer to Kimbe at the time he committed the offence and there is no family or community support for him in Kimbe. His cousin, Paul Mark, the person the offender was living with and whose remarks incited the killing, is reported to have left Kimbe. The deceased's relatives are not interested in receiving compensation or reconciling with the offender and just want to see him punished.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Awalua submitted that this was not a 'worst case' of wilful murder and did not warrant the death penalty. There are a number of mitigating factors, he submitted, that bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, so the head sentence should be in the range of 20 to 30 years imprisonment. He submitted that the offender inflicted only a single blow to the deceased, the offender was the sole attacker, there was an element of de facto provocation, it was not a vicious attack, the offender surrendered to the police and co-operated with them, the offender's relatives had contributed to the funeral expenses, he is a first-time and youthful offender and there was not a high degree of pre-meditation involved.

SUBMISSIONS BY THE STATE

8. Mr Sambua submitted that this case fell within the worst case category of wilful murder. It was a cold blooded and vicious killing. The offender simply did what his cousin, who was angered over his light being broken, told him to do. The offender seemed to regard the broken light as more important than a human life. He has shown no remorse, so the death penalty should apply.

DECISION MAKING PROCESS

9. 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 should the head sentence be?
•	step 4: should the pre-sentence period in custody be deducted?
•	step 5: should any part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. The maximum penalty for wilful murder, under Section 299 of the Criminal Code, is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided … a person liable to death may be sentenced to imprisonment for life or for any shorter term.

11. Wilful murder is one of only four crimes that attract the death penalty. The others are treason (Section 37), piracy (Section 81) and attempted piracy (Section 82). For other homicide offences (murder, manslaughter and infanticide) the maximum penalty is life imprisonment. The history of the death penalty in PNG was set out by the Supreme Court in Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836. Before 1907 the death sentence was mandatory for wilful murder. From 1907 to 1974 it was discretionary. In 1974 the death sentence was repealed. In 1991 the Parliament reinstated it and made it again discretionary. There is a common misconception in the community that the law does not provide for the manner in which the death sentence is to be carried out. However the Criminal Code prescribes in Sections 597 and 614 that the offender is to be hanged by the neck until he or she is dead. Section 598 allows the court in limited circumstances to abstain from pronouncing a death sentence. If the offender is a pregnant woman she has the right under Section 599 to a stay of execution until after she gives birth. The Correctional Service Regulation, Sections 105 and 106, confers special rights on prisoners condemned to death.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J and Lay J) and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J and Davani J).

The Kovi guidelines

13. In Kovi a man who stabbed his wife to death on a PMV in Port Moresby had his appeal against a sentence of life imprisonment dismissed. The Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in table 1.

TABLE 1: SENTENCING GUIDELINES FOR WILFUL MURDER DERIVED FROM THE SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-mediation or pre-planning – minimum force used – absence of strong intent to kill	15-20 years	
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill	20-30 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill	Life imprisonment	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	[No details provided]	Death 	

The Ume guidelines 

14. In Ume three men were convicted of the payback killing in 1995 of an innocent, harmless woman at Pangalu village in the Talasea area of West New Britain. She was tortured and made to die a slow and painful death. The offenders were sentenced to death by the National Court but their appeal to the Supreme Court was upheld and their sentences reduced to life imprisonment. While agreeing that it was a horrendous crime, the Supreme Court held that the trial judge committed a number of sentencing errors, eg suggesting that the death penalty was mandatory, shutting his mind to the existence of mitigating factors (the offenders were ordinary villagers of previous good character and good family and church backgrounds), failing to ascertain each offender's degree of involvement, failing to consider circumstances personal to each offender, failing to consider whether any customary considerations influenced the killing and regarding the rape of the victim as an aggravating factor without making a specific finding of fact that she was raped. The Supreme Court suggested that the death penalty may be considered appropriate if the case matched one of these descriptions:

•	A pre-meditated, vicious and brutal killing in cold blood of an innocent and defenceless or harmless person, or a person in authority or position of responsibility in the community, with complete and blatant disregard for the sanctity of human life and for which there is no motive or lawful motive for taking away the life of another person.

•	The killing is unthinkable, conscious-less, senseless, pitiless and unnecessarily torturous (see Profitt v Florida 428 US 249).

•	The crime was committed by a persistent, violent, wicked-tempered person with the utmost ferocity and with cunning (see R v Peter Ivoro [1971-72] PNGLR 374).

•	The offender's culpability is so grave as to deserve execution.

•	Whatever the extenuating and mitigating circumstances may be, the degree of moral and criminal culpability and the degree of cruelty exhibited by the offender are so grave and reprehensible that the offender is undeserving of a chance to live their own life, and instead, it is only just and fair that they pay for the crime with their own life.

•	The offender's banishment from the community is the only just and appropriate punishment for the crime in all the circumstances.

15. As to the facts that would warrant the death penalty and without being exhaustive the Supreme Court suggested:

1	The killing of a child, a young or old person, or a person under some disability needing protection.

2	The killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for a fee, killed in the course of carrying out their duties or for reasons to do with the performance of their duties eg a police officer, correctional officer, government officer, schoolteacher, church worker, company director or manager.

3	Killing of a leader in government or the community, for political reasons.

4	Killing of a person in the course of committing other crimes perpetrated on the victim or other persons such as rape or robbery.

5	Killing for hire.

6	Killing of two or more persons, in a single act or series of acts.

7	Killing by a prisoner in detention or custody serving a sentence for another serious offence of violence.

8	The offender has prior conviction(s) for murder.

Applying guidelines

16. I will apply the guidelines from those two cases to arrive at a starting point. I do not accept Mr Awalua's submission that, under the Kovi guidelines, this is a category 2 wilful murder. I agree with Mr Sambua's description that it was a brutal killing, a killing in cold blood. The starting point should be at least life imprisonment. The offender has no prior convictions, so there is at least one mitigating factor and therefore it is not for the purposes of identifying a starting point a category 4 case. It falls within category 3 (life imprisonment) under the Kovi guidelines.

17. As for the Ume guidelines the case is not any of the eight types that the Supreme Court suggested would warrant the death penalty. On the other hand the killing can justifiably be labelled as 'pre-meditated, vicious and brutal killing in cold blood of an innocent and defenceless person' so it is conceivable that the death penalty would be appropriate. I will, however, use life imprisonment as a starting point.

STEP 3: WHAT IS THE HEAD SENTENCE?

18. I will now assess the mitigating and aggravating features of the case in detail. The more mitigating factors there are, the more likely the head sentence will be below the starting point, ie a sentence fixed by a number of years. On the other hand, if the mitigating factors are rendered completely insignificant by the gravity of the offence and the aggravating factors, the sentence will be above the starting point, which means passing a sentence of death.

19. I accept Mr Awalua's submission that there are some mitigating factors:

•	The offender inflicted only a single blow to the deceased; this is not a case in which the deceased was subject to a slow and agonising death.
•	The offender acted alone, not in a group.
•	The offender has no prior convictions.
•	He surrendered to the police.

20. I do not, however, accept that there was any element of provocation. Mr Awalua submitted that the offender was provoked by his cousin, whose light had been damaged, to kill the deceased. That is only evidence of a motive for the killing. It helps explain why the offender did what he did. But it is not provocation that can mitigate the seriousness of the killing. I also reject the submission that this was not a vicious killing. It was a barbaric act. It was also pre-meditated in that the offender lay in waiting for the deceased and ambushed him as he walked past. The offender is 26 years old. He was aged about 24 at the time of the incident and that does not make him a youthful offender.

21. The aggravating factors are:

•	This was a vicious and barbaric killing.
•	The offender directly killed the deceased.
•	The offender has not shown any remorse.
•	The circumstances of the incident show that there was a strong desire to kill.
•	There has been no peace or reconciliation with the deceased's relatives and no payment of compensation. There is no evidence before the court to back up the claim that the offender's relatives contributed to funeral expenses.

22. The mitigating factors are not strong enough to warrant a sentence below the starting point of life imprisonment. They are, however, sufficiently weighty to prevent the case moving into category 4 of the Manu Kovi guidelines. That is, they are not rendered completely insignificant by the gravity of the offence and the aggravating factors. The vicious and callous circumstances of the killing almost put this case into the worst case category, warranting the death penalty. However, the fact that the case does not fit into any of the eight categories identified by the Supreme Court in Ume's case as warranting the death penalty, means that, after considering all the circumstances of the case, this is not an appropriate case in which to impose the maximum sentence. The appropriate sentence is life imprisonment.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

23. As the offender is sentenced to life imprisonment, it is not appropriate to deduct the pre-sentence period that he has spent in custody (one year, ten months, one week, one day).

STEP 5: SHOULD ANY PART OF THE HEAD SENTENCE BE SUSPENDED?

24. No. The pre-sentence report is not favourable and the offence is too serious to warrant any suspension. It would also not be proper to suspend any part of the head sentence as the offender has been sentenced to life imprisonment.

SENTENCE

25. Moses Nasres, having been convicted of one count of wilful murder, is sentenced as follows:

Length of sentence imposed	Life imprisonment 	
Pre-sentence period to be deducted	Nil	
Resultant length of sentence to be served	Life imprisonment	
Amount of sentence suspended	Nil	
Time to be served in custody	Life imprisonment	
Place of custody	Enga, to where the offender is to be transferred within three months after date of sentence	

Sentenced accordingly.
__________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender