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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 464 OF 2008
THE STATE
V
STEVEN MALKEN
(NO 2)
Kimbe: Cannings J
2009: 7 August & 9 September
CRIMINAL LAW – sentence – pleaded not guilty to murder of a high school student – offender has no prior convictions – mitigating and aggravating factors considered – presentence report considered and is favourable to prisoner - mitigating factors outweigh aggravating factors – prevalence of offence considered as significant factor to impose custodial sentence without suspension – prisoner sentenced to 20 years less time spent in pre-trial custody – s300 (1) Criminal Code Act
Counsel:
F Popeu, for the State
D Kari, for the offender
9th September, 2009
1. CANNINGS J: This is the decision on sentence for Steven Malken who was convicted, after a trial, of the murder of Steven Bori at Woo settlement, Bialla, on the night of Monday 28 January 2008. The deceased was an 18-year-old Duke of York Islands man, a student at Bialla High School who had lived at Woo for a long time.
2. On the night in question the offender was holding a birthday party at his residence for his grandson. It was a big occasion and in the course of the evening there were several disturbances caused by local youths. The offender became annoyed and frustrated by the disturbances and at about midnight, he emerged from the area of a pit toilet across the road from his house and attacked the deceased on the street at the front of his residence. He cut him on the head with a bushknife. Steven Bori was taken immediately afterwards to Bialla health centre and later to Kimbe General Hospital, where he died at 4.45 pm the next day. He died of a single, fatal knife wound to the head. Further details of the circumstances in which the offence was committed are in the written judgment on verdict, handed down on 7 Aug 09.
ANTECEDENTS
3. The offender has no prior convictions.
ALLOCUTUS
4. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:
I came here as a pioneer settler in 1968 with my father and I was brought up at Tamba. Been here for more than 40 years. Acquired a block at Tiaru near Bialla.
Have never been in trouble with the law before. Have served the provincial govt in various capacities for 30 years. Married with six children – my wife died.
I respect and honour the court and the laws of this country. I have been attending to this case since the incident happened – cooperated with the police and the courts. Thank the lawyers involved for the time and effort sent on my case.
After the incident my family contributed K5,000.00 to relatives of deceased.
With due respect, I ask for probation. I have a block to look after and two of my children are young and depend on me. I still have a K12,000.00 bank loan to repay for my house.
I will continue to cooperate with the justice system if the court gives me probation.
PRE-SENTENCE REPORT
5. A pre-sentence report prepared by the Kimbe branch of the Community Correction and Rehabilitation Service shows:
➢ 50 yo, married
➢ Had been living in a semi-permanent four bedroom house at Bialla, Woo settlement. Does not plan to go back there – intended to reside at Tamba upon release from custody
➢ From Waikamakau in Maprik District of ESP.
➢ Eldest in family of nine.
➢ Mother deceased – father very old – alive in Tamba.
➢ Raised at Tamba
➢ Family relationships very strong and stable.
➢ Wife, Veronica, died on 17 Sep 07, after happy marriage of 30 years
➢ His son, Kenneth Malken, spoke very highly of his father – good father and a highly respected community leader.
➢ Family very supportive. Concerned about the two youngest children as since their mother died Malken had been raising them as a single parent.
➢ Educated to G10 Kerevat HS 1973.
➢ Public service record: councillor for Tiaru oil palm division 1979-1981; member of the WNB Provincial Assembly for two terms in 1980s (holding several portfolios); Chairman of Bialla Catholic Parish; chairman of Bialla HS BOG for 12 years.
➢ Employed by Hargy Oil Palms 2003-2008: senior law and order mediator: glowing report by company management: honest, reliable, committed, cooperative, superb in community relations.
➢ Was in Reserve Police (Snr Const) while at Hargy.
➢ Finances and assets: still owes Ag Bank K4,000.00; owns one o/p block at Tiaru.
➢ Health OK
➢ Catholic: very active.
➢ Excellent community record, esp in Tamba and Bialla – no obj
➢ Deceased's relatives interviewed: acknowledge the receipt of K5,000.00; they asked for K9,500.00. They were saddened upon hearing of their son's death – bright future – they were prepared to forgive the offender but have been disappointed by his attitude and that of his relatives to their subsequent attempts to mediate – Malken has never apologised to them for what he did – they confirmed that ther was no ill-feeling between them and the offender before the incident – they had lived together peacefully before the incident – will leave it to the court to decide on his punishment.
SUBMISSIONS BY DEFENCE COUNSEL
6. Mr Kari submitted that this falls within category 3 of the Manu Kovi guidelines: 20 to 30 years – should be at the lower end of that range.
7. Drew the court's attention to following mitigating factors:
➢ only cut deceased once
➢ not a brutal killing
➢ compo paid
➢ good PSR
➢ out of character incident
➢ faithful in complying with bail conditions, showing he can be trusted if given a suspended sentence – some should be suspended.
SUBMISSIONS BY THE STATE
8. Mr Popeu agreed this is a category 3 case; acknowledged that the PSR portrays a person of good prior character – sources of information drawn from wide cross-section of community.
9. Nevertheless it was a serious offence and the following factors were considered:
➢ A trial was held to determine his guilt
➢ The prisoner cut the deceased from the back
➢ There were some elements of viciousness.
Therefore the state submitted a sentence range of between 20 to 25 years would be appropriate.
DECISION MAKING PROCESS
10. To determine the appropriate penalty I will adopt the following decision making process:
STEP 1: WHAT IS THE MAXIMUM PENALTY?
11. 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?
12. 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.
TABLE 1: SENTENCING GUIDELINES FOR MURDER
FROM 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-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 |
13. This is a category 3 case.
14. Although there was no pre-planning, the following factors were considered as going against the prisoner:
➢ It was a vicious attack
➢ There was a strong desire to do grievous bodily harm (GBH)
➢ An offensive weapon was used
Therefore the starting point range is 20 to 30 years.
STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?
15. 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, 2005-2008, 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.) | 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 |
| 13 | The State v Peter Tokau CR 947/1988, 25.04.08, Kimbe | Guilty plea – offender went to his father-in-law's house, angry and under the influence of alcohol, in the middle of the night,
looking for his wife and child – he assaulted his father-in-law, first punching him, then stabbing him and inflicting fatal
wounds. | 22 years |
| 14 | Semelkit * | | 22 years |
| 15 | John Dende, Casper Baki and Alex Ipa * | | 24, 22, 22 |
| 16 | Ephraim Ria Boa * | Altercation with 40 year old man following an ongoing conflict over land – trial | 22 years |
| 17 | Julius Kembu | | 18 years |
| 18 | Polikap Pake | | 10 years |
Those marked * have strongest similarity with this case: they were all trials – all involving crimes of passion.
STEP 4: WHAT IS THE HEAD SENTENCE?
16. 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 range. The more aggravating factors present, the more likely the head sentence will be above the starting point range. 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.
17. Mitigating factors are:
18. Aggravating factors are:
19. There are more and stronger mitigating factors than aggravating factors, so the sentence will be at the bottom of the 20-30 years range. Comparing this case with other murder sentences I have passed, and in particular considering the excellent PSR, the head sentence will, furthermore, be lower than in the other murder cases that I have used as precedents: 20 years imprisonment.
STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?
20. 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 conviction to the date of sentence, which is 2 months, 1 week, 3 days.
STEP 6: SHOULD ANY PART OF THE SENTENCE BE SUSPENDED?
21. The pre-sentence report, though excellent in most areas, does not warrant any suspension. The telling consideration is NACR.
22. I have already taken the PSR into account in arriving at the head sentence; particularly the effect of compo and good community record.
23. A long prison sentence will make life very difficult for the offender and his family. 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
24. Steven Malken, having been convicted of one count of murder under Section 300(1)(a) of the Criminal Code, is sentenced as follows:
| Length of sentence imposed | 20 years |
| Pre-sentence period to be deducted | 2 months, 1 week, 3 days |
| Resultant length of sentence to be served | 19 years, 9 months, 2 weeks, 4 days |
| Amount of sentence suspended | Nil |
| Time to be served in custody | 19 years, 9 months, 2 weeks, 4 days |
| Place of custody | Lakiemata Correctional Institution |
Sentenced accordingly.
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender
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