N5462
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 947 0F 1998

THE STATE

V

PETER TOKAU

Kimbe: Cannings J
2008: 18 March, 4, 25 April

CRIMINAL LAW – sentence – murder – Criminal Code, Section 300(1)(a) – guilty plea – family dispute – offender killed his father-in-law. 

A man pleaded guilty to the murder of his father-in-law. He went to the deceased's house, angry and under the influence of alcohol, in the middle of the night, looking for his wife and child. He then assaulted the deceased, first punching him, then stabbing him and inflicting fatal wounds.

Held:

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

(2)	Mitigating factors are: sole offender; pleaded guilty; remorse; first offence.

(3)	Aggravating factors are: repeated attack; vicious attack; directly killed the deceased; intended to harm his wife; no provocation; offender's role not minor; no reconciliation.

(4)	A sentence of 22 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 Augustine Tup CR 1075/2004, 29.09.06
The State v Charles Rava Pake CR 315/2007, 24.08.07
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 Jona Poro CR 1023/2007, 16.10.07
The State v Jonathan Joseph CR 866/2007, 18.09.07
The State v Kevin Jeffo CR 1303/2006, 24.08.07
The State v Kevin Wakore CR 378/2003, 16.08.07
The State v Rudolf Reme Koki CR 1967/2005, 24.08.07
The State v Sebastian Justin Kelly CR 75/2001, 20.05.05
The State v Simon Levin CR 177/2005, 26.10.07

SENTENCE

This is a judgment on sentence for murder.

Counsel

F Popeu, for the State
T Gene, for the offender

25th April, 2008

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to murdering his father-in-law. The incident happened in the early hours of 7 May 1998 at Tamba oil palm settlement near Kimbe, where the offender, Peter Tokau, and the deceased, Alois Lapupu, were living on separate blocks. Peter was under the influence of alcohol, angry and frustrated as his wife, Maria, had gone to her parents' block and taken their child with her to stay with them. Peter walked to his in-laws' block, looking for his wife and child, and he had a knife with him. He shouted and made a lot of noise outside the in-laws' house, causing Alois and his wife, Elizabeth, and Maria, to come outside to see what was happening. Peter insulted Maria and when she sought protection at the back of her father, Peter punched Alois to the ground. While Alois was on the ground, Peter took out his knife and stabbed him around his right collar bone, from the front. He stabbed Alois a second time around his abdomen and as Alois turned over, in pain, Peter stabbed him a third time, in his back. Alois started to walk to the nearby police station, but collapsed. He was rushed to Kimbe General Hospital but died on the way of a massive internal haemorrhage caused by the stabbing. The case has taken a long time to come to court as Peter absconded to Lae for a number of years and has only recently been re-arrested.

ANTECEDENTS

2. The offender has no prior criminal convictions but spent three months in prison in 1997 for failing to comply with a District Court order for payment of compensation to a man he had assaulted.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I was a PNGDF soldier in the Bougainville Crisis and when I came back to the block at Tamba I expected to see my wife (for whom I had paid bride price) there with my child. But they were not there and I found out that they had gone to her parents' block and I was not happy about that. I went to get them back to sort out the problem, which was a problem between my wife and I. The trouble was that her father [the deceased, Alois] would always interfere. I really wanted to get back my child so on the night in question I went to the deceased's block. My wife hid behind her father. I tried to stab her but I missed and got her father. I know I am guilty and I say sorry to God for the sin that I have committed. I apologise to this court for breaking one of the laws of our country. I apologise to the family of the deceased. My soul will face God's judgment so I ask this court to have mercy on me and consider me for probation. I am the only child in my family and I want to live on the family block and look after my mother and my two wives and six children.

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 cooperated with the police and made some admissions in his police interview. He was frank with the police about the family problems he had been experiencing. He explained that he and his wife, Maria, had a second child who passed away in 1998 and this caused an argument between his mother and Maria. He was the middle man in the argument and that was the problem that led Maria to go and stay with her parents. He was upset and angry as he really wanted Maria and their child to come back and live with him.

PRE-SENTENCE REPORT

5. The report by the Community Corrections and Rehabilitation Service reveals that the offender, Peter Tokau, is now 38 years old. He says he has two wives: Maria (the daughter of the deceased) and a woman in Lae with whom he has had three children. He was raised on the family block at Tamba. His father, from East New Britain, died in 2001, while his mother, from Morobe, is alive and living on the family block at Tamba. The sale of oil palm from the block provides a regular source of income. He was educated to grade 10 at Hoskins Secondary School and was a member of the PNGDF from 1990 to 1995. He has strong family support, from his mother and an uncle at Tamba. He does not have a bad record in the local community. The sum of K3,000.00 bel kol was paid by his family to the deceased's relatives a week after the death but there has been no subsequent reconciliation or compensation. The offender's wife, Maria, did not make herself available for an interview. The deceased's widow says that she and the family do not want any compensation. They just want to see the offender in prison and they are fearful of what he might do to them if he is released from prison. The report concludes that the offender is not suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Gene submitted that this is a mid-range murder offence, falling within the second of the four categories set out by the Supreme Court in Manu Kovi v The State (2005) SC789, so the head sentence should be in the range of 16 to 20 years. He submitted that there was de facto provocation and the offender had recently returned from the Bougainville Crisis and was facing a difficult and frustrating personal problem at the time. These are mitigating factors that should result in a lesser sentence, Mr Gene submitted.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that the case was much more serious than it was made out to be by the offender's counsel. The deceased was punched, then stabbed three times. It was a vicious attack. There is no evidence before the court that the offender was suffering from the effects of the Bougainville Crisis and that claim, made by his counsel from the bar table, should be rejected. It was a very serious murder and should result in a sentence in the range of 20 to 28 years imprisonment.

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 

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years	
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life.	Life imprisonment	

11. I reject Mr Gene's submission that this was a category 2 offence. The vicious attack on the deceased showed a strong desire to do grievous bodily harm and an offensive weapon, the knife, was used. This is a category 3 offence and the starting point is 20 to 30 years imprisonment.

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. These cases are shown in table 2.

TABLE 2: SENTENCES FOR MURDER, 2005-2007, CANNINGS J

No	Case	Details	Sentence	
1	The State v Sebastian Justin Kelly CR 75/2001, 20.05.05, Kimbe	Guilty plea – vicious attack on a relative who was asleep and unarmed – Bialla – offender used a bushknife – suggestion that the offender was mentally unbalanced.	20 years
	
2	The State v David Yakuye Daniel (2005) N2890, Kimbe	Trial – husband attacked the deceased (his wife) over suspected infidelity on her part – Kandrian, WNBP – vicious attack, he stabbed her several times.	25 years
	
3	The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868, 
Kimbe	Trial (first offender) and guilty plea (second offender) – police officer shot dead in course of armed robbery committed by a gang of which the offenders were members – neither offender fired any shots – convicted under Criminal Code Section 8.	15 years,
9 years
	
4	The State v Augustine Tup CR 1075/2004, 29.09.06, Buka	Guilty plea – man murdered his wife by punching and kicking her, when he was drunk – offence committed late at night after offender came home from a party – offender a former Defence Force sergeant, involved in active duty during Bougainville Crisis.	20 years
	
5	The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06, Kimbe	Trial – two men murdered a man they suspected had killed a friend of theirs by sorcery – mob attack – the victim was bashed to death. [Conviction and sentence recently upheld by Supreme Court; offenders' appeal being dismissed.]	25 years
	
6	The State v Kevin Wakore CR 378/2003, 16.08.07, Kimbe	Guilty plea – dispute erupted between clans in a village after a man was alleged to have committed adultery with another man's wife – two clans had a confrontation and in the course of it the offender shot dead the victim – substantial reconciliation had occurred following the death.	12 years
	
7	The State v Rudolf Reme Koki CR 1967/2005, 24.08.07, Kimbe	Guilty plea – man came home drunk, argued with his wife, they fought and he beat her to death – no offensive weapons were used – beating continued over several hours, ample opportunity for the offender to stop and get medical assistance for the deceased – no remorse.	28 years
	
8	The State v Kevin Jeffo CR 1303/2006, 24.08.07, 
Kimbe	Guilty plea – offender was drunk and angered by stories that his brother-in-law had been assaulting his wife, the offender's sister – offender armed himself with a knife, went to brother-in-law's house, called for him from outside – when he came out, stabbed him with the knife, killing him.	18 years
	
9	The State v Charles Rava Pake CR 315/2007, 24.08.07, Kimbe	Guilty plea – offender approached a group of friends who were sitting down telling stories in a village setting – offender suddenly attacked one of his friends with a bushknife, inflicting a fatal wound to his neck – offender later claimed that the deceased had done bad things to his sister.	20 years
	
10	The State v Jonathan Joseph CR 866/2007, 18.09.07, 
Buka	Guilty plea – offender was frustrated by victim's sexual misconduct with the offender's sisters, and other matters – offender armed himself with a knife and stabbed the victim three times as he walked past.	17 years
	
11	The State v Jona Poro CR 1023/2007, 16.10.07, 
Madang 	Guilty plea – offender got angry with his wife, threw a stick at her, intending to do her grievous bodily harm – he missed his wife but the stick struck their baby daughter, killing her.	12 years
	
12	The State v Simon Levin CR 177/2005, 26.10.07, 
Buka 	Trial – offender, aged in his mid-50s, became angry with his 18-year-old daughter over a trivial family matter – assaulted her in the family home, breaking her jaw and skull and causing an intracranial haemorrhage, which led to her death.	12 years

STEP 4: WHAT IS THE HEAD SENTENCE?

13. To determine the head sentence I will focus on the starting point range of 20 to 30 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above the starting point. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

14. Mitigating factors are:

•	the offender acted alone;
•	he had an on-going family problem, which caused him to become frustrated and unbalanced;
•	he co-operated, to a limited extent, with the police;
•	his relatives paid K3,000.00 bel kol to the deceased's relatives;
•	guilty plea;
•	he expressed remorse;
•	apart from his short prison sentence in 1997 he had no previous problems with the law.

15. I agree with Mr Popeu that no account should be taken of the claim that the offender was suffering from the effects of his involvement in the Bougainville Crisis as there is no evidence of that.

16. Aggravating factors are:

•	it was a direct and vicious killing;
•	it was a repeated attack, involving a heavy punch, followed by three serious stab wounds;
•	it was an unprovoked attack on an unarmed man (I reject the argument that this was a case of de facto provocation as the deceased did nothing to provoke the offender except to protect his daughter);
•	no reconciliation with the deceased's relatives.

17. Though there appear to be more mitigating factors than aggravating factors and though the court can see how this offence came to be committed (the offender's frustration over the ongoing family problem) the mitigating factors are outweighed by the ferocity and viciousness of the killing. The offender showed no mercy towards his father-in-law, who he murdered in front of the victim's wife and daughter. He has inflicted on them the memory of this horrific event for the rest of their lives. This is a more serious case than the similar case of Kevin Jeffo decided last year in Kimbe, where the offender was angry and drunk and woke up the victim at night and inflicted one fatal bushknife wound on him; resulting in a sentence of 18 years. I impose a head sentence of 22 years imprisonment.

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

18. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the pre-sentence period in custody from the date of the offender's recent re-arrest, to the date of sentence, which is three months.

STEP 6: SHOULD ANY PART OF THE SENTENCE BE SUSPENDED?

19. The pre-sentence report does not warrant any suspension. A long prison sentence will make life very difficult for the offender's mother and it might be that the offender's children will grow up without a father. That is the inevitable collateral damage that is caused by this sort of tragedy. It is the offender who has created these problems and he must be left to solve them, as best he can, from inside prison. I will not suspend any part of the sentence.

SENTENCE

20. Peter Tokau, having been convicted of one count of murder, is sentenced as follows:

Length of sentence imposed	22 years	
Pre-sentence period to be deducted	3 months	
Resultant length of sentence to be served	21 years, 9 months	
Amount of sentence suspended	Nil	
Time to be served in custody	21 years, 9 months	

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