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State v Laiam [2010] PGNC 61; N3995 (22 April 2010)

N3995

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR.443 OF 2006

THE STATE

V

JOHN LAIAM

Kokopo: Sawong, J.
2010: 8, 16 & 22nd April

SENTENCE

CRIMINAL LAW – Sentence – Murder, Criminal Code, Section 300 (1) (a),
Plea- Male Offender – used knife to fatally stab victim – victim bled to death – 15 years imprisonment.

Facts:

The Offender pleaded guilty to murder. He used a knife to stab the victim, a young 20 years old man, once on the chest. This was a culmination of an ongoing uneasy relationship between the offender and the deceased.

Cases Cited

Goli Golu v The State [1979] PNGLR 65
Avia Aihi v The State (No.3) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
State v Laura (No.2) [1988-89] PNG
Lawrence Simbe v The State [1994] PNGLR 38
State v John Elipas Kalabus [1977] PNGLR
Simon Kama v The State (2004) SC740,
Manu Kovi v The State (2005) SC789
State v Kiri Kirihau Harisu [2006] N3168
State v Jimmy Ketu (No.2) (2007) N3394
State v Gein Man (2008) N3516
State v Amos Young (2008) N3548
State v Steven Tabogani (No.2) (2008) N3559
State v Issac Parao (2009) N3625

Counsel

N. Miviri, for the State
P. Kaluwin, for the Accused

22nd April, 2010

1. SAWONG, J.: Introduction. The accused pleaded guilty to a charge of murder, an offence contrary to s.300(1)(a) of the Criminal Code Act, as amended to date.

Facts

2. The brief facts of the case are as follows. The accused and the deceased, late Stanilaus Beate were both students at the Kabaleo Teachers College. They have been students at that College since 2005. It appears from the deposition that there had been an ongoing uneasy relationship between them, which culminated in the accused using a knife to stab the deceased fatally on the date of the incident.

Prisoner

3. The prisoner has no prior convictions.

4. I administered the allocutus and the prisoner was given an opportunity to say what matters the Court should take into account in deciding the appropriate sentence to impose upon him.

5. In your allocutus, you told me that this was your first time to appearbefore any Court and that you had no intention to commit the offence. You told me that you stabbed the deceased because of his continuous insulting behavior towards you which affected you. You also apologized to the Court for what you had done. You also apologised to the deceased’s relatives for what you had done. Further, you apologised to the members of the public and your sponsors. You also asked the Court to make an Order to transfer you to serve your sentence at Buimo Jail in Lae as your mother is from Garaina. This is so that your relatives could visit you. You also asked the Court to impose a short sentence on you and asked if you could be placed on Probation.

6. Consequently, your lawyer applied for a Pre Sentence Report. That Report has now been prepared and is now before me. Your lawyer has made submission on that report. I have also read and considered carefully the contents of that Report.

Pre-Sentence Report

7. I thank Mr. David Paul, the Senior Community Based Correction Officer for preparing and submitting that Report. Whilst the Report is not comprehensive, nevertheless it does contain some useful information which I have taken note of.

8. It reveals that at the time of committing the offence, you were a second year trainee teacher at the Kabaleo Teachers College and the deceased was also a student at the same college.

9. You come from a mix parentage of Central and Morobe Provinces. You are 30 years old, single and a mature man. You come from a family of three children, of which you are the eldest.

10. You completed Grade 10 at Tapini High School in 2000. You didn’t continue your education and was living in the village, until your local priest selected you to attend Kabaleo Teachers College. It is obvious then that, your local priest thought highly of you and your future contribution to the future development of your people.

11. You expressed your desire to continue your education to be a teacher after you serve whatever sentence the Court imposes on you. To my mind this is an admirable quality on your part.

12. I have also taken note of the comments by your two former colleagues,
Henry Kenny and Alphonse Mark Hegan of what you did that day.

13. Finally, I have considered the recommendation of the Community Based Corrections Officer.

Submissions

14. Mr. Kaluwin highlighted the following mitigating factors on behalf of the Prisoner:-

1. The case arose out of a built up of anger over a period of time, which was caused by the deceased towards the prisoner.
   
2. There was no planning, this was a spur of the moment attack.
   

100. There was no viciousness in the attack, in that it was a one fatal stab.
     

4. The prisoner has expressed genuine remorseness to both the deceased and his relatives and also the general public.
   
5. He was badly assaulted by the members of the public immediately after the stabbing.
   
6. He is a first offender.
   
7. He readily admitted guilt upon his apprehension, see the John Elipas Kalabus v The State, [1977] PNGLR, 87.
   
8. He has pleaded guilty before the Court, which is consistent with his earlier admission and was therefore a genuine plea.
   

15. Mr. Kaluwin submitted that this was not a worst type of murder case and therefore, it doesn’t warrant imposition of the maximum sentence.

16. He submitted that a sentence of between the sentencing ranges of the first category and the second category as set out in Manu Kovi v The State (2005) SC 789.

17. He further submitted that whilst the Pre-Sentence Report contains a recommendation for a suspended sentence, as murder case is a serious case, it would be inappropriate to suspend either all or any part of the sentence that may be imposed.

18. Mr. Kaluwin referred me to two cases, dealt with by my brother Judge Kandakasi, J, in support of his submission that the sentence should be between 12 – 15 years imprisonment. These cases were: State v Jimmy Ketu (No.2) (2007) N 3394 and State v Kiri Kirihau Harisu (2006) N 3168.

19. He submitted that a head sentence of between 15 to 16 years would be appropriate. He submitted that the mitigating factors far out weigh the aggravating factors in the present case.

20. Mr. Miviri, submits that you used a knife, a dangerous weapon with deadly effect. Further, he submitted that during your struggle with the deceased and after you stabbed him, you persisted and attempted to stab other fellow students. This demonstrates that you are a violent person. He further submitted that the young man has died prematurely. A life has been lost forever, whilst you still have your life to live after you serve your sentence. He submitted further that you used a dangerous weapon to fatally attack an unarmed man.

21. The issue to be decided is what is the appropriate sentence that should be imposed upon you, given the facts and circumstances of your case.

The Crime and Sentencing Trend

22. I have given much thought to your case since I convicted you. In particular, I have considered carefully what you said and what Mr. Kaluwin submitted on your behalf. I have also considered carefully the submissions advanced by Mr. Miviri on behalf of the State. I have carefully weighed both the mitigating factors in your favour and those factors which are against you. I have tried to balance these competing interests in arriving at the appropriate sentence that should be imposed upon you.

23. The starting point to consider, in my opinion, is the sentence prescribed
by law. Section 300(1) of the Criminal Code prescribes the crime of murder and states that the maximum penalty is life imprisonment. However, this is subject to Section 19 of the Criminal Code Act. By operation of s.19, the Court can impose a lesser sentence, such as, for example;

• a shorter term of imprisonment could be imposed under s.19(1)(a), or
  
• the prisoner could be given a suspended sentence under s.19(1)(d), or
  
• the prisoner could be given a good behavior bond under S.19(1)(d).
  

24. In my view, the sentencing discretion given by Section 19 of the Criminal Code, is consistent with well established and accepted sentencing principles, for instance, that each case must be determined on its own facts and circumstances. See Lawrence Simbe v The State [1994] PNGLR 38. The discretion is also consistent with another well accepted and established sentencing principle that the maximum sentence must be reserved for the worst type of a case for a particular offence. See Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] PNGLR 92, and Ure Hane v The State [1984] PNGLR 105.

25. In State v Laura (No.2) [1988-89], PNGLR 98, the late Chief Justice Kidu, introduced the concept of range of sentencing tariffs for murder cases. From there onwards, the National Court Judges have imposed sentences on that basis. Some have of course imposed higher sentences than the suggested ranges.

26. More recently, the Supreme Court has reviewed the range of sentencing tariffs for murder and other homicide cases and has suggested that the sentences be increased. In Simon Kama v The State (2004) SC 740, the Court after discussing other matters said:-

".....we suggest that following the establishment of the guilt of an accused, either as a plea or after a trial, the Court should approach sentence with a serious consideration of the maximum penalty first, then allow the offender to make out a case for lesser sentence. An offender could easily do that by pointing out factors in his mitigation with appropriate evidence where evidence is required. Once the offender is able to do that, only than (then) should the Court carefully consider the factors both for and against of the maximum penalty. At that stage, the categorization of the kind of offence when consideration could become relevant and useful. With these qualifications in mind, we are of the view that the guidelines set by State v Lawrence Simbe (supra)for murder cases is relevant............"

27. Then at page 23, the Court suggested some sentencing tariffs for murder cases and said:

"(a) where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) where there is a guilty plea with aggravating factors other than use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) where there is a guilty plea with the aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment.

(d) on a plea of not guilty, aggravating factors, a range of sentences from seventeen (17) to twenty-one (21) years.

(e) On a plea of not guilty, with aggravating factors other than the use of firearms, and in the course of committing or attempting to commit another offence a range of sentences from twenty two (22) to Forty (40) years.

(f) where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty one (41) years to life imprisonment."

28. Subsequently in Manu Kovi v The State (2005) SC 789, the Supreme Court, said, inter alia, that due to the prevalence of homicide cases, the Courts should impose higher sentences. The Court then suggested the following sentencing tariffs for murder cases:-

"1. In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence below 12 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 sentence of 16-20 years imprisonment.

3. In a contested or uncontested case, with mitigating factors and aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20-30 years.

4. In a contested or uncontested cases, the maximum of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutual killing of an innocent and unarmed person using dangerous or lethal weapons, substances, rendered execution style killings, killings in full view of the public in that for the safety and lifes of others etc, These cases where there are no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime".
   

29. Your case would appear to fall under the second category under Simon Kama v The State (supra), which would attract a sentence between 17 to 30 years imprisonment.

30. In my view, given the facts and circumstances of your case and the fact that there are mitigating factors and aggravating factors present, your case would fall into the second category under Manu Kovi v The State (supra). Thus your case would attract a sentence of 16-20 years imprisonment.

31. Whilst I am guided by and have taken note of the suggested range of sentences, I am of the view that the Court should be careful in the way it approach a sentence, because it is trite law that each case must be determined on its own facts and circumstances. It would be quite wrong in principle to merely apply or pick a figure and impose it upon a prisoner.

32. Since these Supreme Court decisions, there have been many National Court sentencing decisions on murder case, where the Court has imposed determinate terms of imprisonment. Thus in the exercise of the Courts sentencing discretion, the Courts have imposed sentences lower than life imprisonment in many murder cases. I set out below some examples. These cases demonstrate that each case would be determined on its own facts and circumstances.

33. In State v Jimmy Keu (No.2) (2007) N 3394, after a trial the accused was found guilty and sentenced to 22 years. The accused used a bush knife to attack and inflict wounds on head and hands of deceased resulting in his death. Accused was a first offender.

34. In State v Kiri Kirihan Harisu (2006) N 3968, (from the head notes), the deceased killed the accused’s father. The accused tried to shake hand with the deceased. The deceased refuse to shake hands and threatened to kill the accused. The accused picked up an axe and used it to cut the deceased twice with the intention to stopping the deceased from attacking him. The deceased died from loss of blood. He pleaded guilty and was a first offender. He was sentenced to twenty-two years imprisonment.

35. In State v Gein Mau (2008) N 3516, the prisoner pleaded guilty to a charge of murder. He assaulted the deceased who was his wife by kicking her on her abdominal areas which resulted in her spleen being ruptured. He was a first offender. He was sentenced to 9 years imprisonment.

36. In State v Amos Young (2008) N 3548, the prisoner who was initially a bystander watching a group of men shouting at each other. However, he got involved and using a knife he was armed with, stabbed the deceased and one other. The deceased died directly from the stab wound. A trial was conducted. He was found guilty, convicted and sentenced to 17 years imprisonment.

37. In State v Steven Tabogani (No.2) (2008) N 3559, after a trial, the accused was found guilty and convicted for murder. The deceased and two friends were walking down a street. His friends went ahead of him. When the deceased approached him, the prisoner accosted him and stabbed him causing the deceased to bleed to death. The accused was drunk at that time. He was a first offender. He was sentenced to a head sentence of 17 years imprisonment.

38. In State v Issac Parao (2009) N 3625, the prisoner pleaded guilty to a charge of murder. He and others put up a road block and when the deceased arrived at the scene, the prisoner and his accomplies, carrying bushknives and other dangerous weapons, threaten the deceased and others. The deceased was stabbed on the back with a knife. Prisoner was a first offender. His relatives paid K80,000.00 in cash and kind as compensation. He was convicted and sentenced to 15 years imprisonment.

39. In the present case, I accept in your favour the following mitigating factors:

1. First, is that you have pleaded guilty. Your plea of guilty is consistent with your early admissions to the police as indicated in your Record of Interview. In the circumstances, I find and accept your plea of guilty as a genuine one.
   
2. Secondly, you are a first offender. You are a mature man and the fact that you are a first offender, demonstrates to me that you have been a law abiding citizen up until this tragic incident.
   
3. Thirdly, you have expressed remorse to the relatives of the deceased and others. Coupled with your plea of guilty, I accept that this expression of remorse is a genuine one.
   
4. Furthermore, I accept that you were badly assaulted by the public at the scene of the offence. However, I do understand why this was done. In saying that, I do not for a moment suggest that it is acceptable for members of the public to take the law into their own hands, but it seems to me that this kind of reaction demonstrates the public opinion or expression that they have had enough of violent offences being committed.
   
5. Fifthly, I have also taken into your favour the prevailing background that existed between you and the deceased which ultimately culminated in this fatality on that particular date. In other words, these was in existence some form of provocation in the non legal sense, in that the evidence shows that the deceased’s behavior towards you since 2005 and even on the day of the incident, was unacceptable.
   

40. On the other hand, there are a number of aggravating factors of your case, which I have taken into account. First is that whilst it was a single stab, nevertheless there is evidence that you attacked the deceased and tried to stab him but he managed to avoid it. In other words, you tried to stab the deceased the first time, but he managed to avoid it. You then tried the second time and you succeeded in stabbing him.

41. Further, there is also evidence that some other students tried to stop you, But you chased them and attempted to stab them also. Fortunately for you, you didn’t succeeded, for if you had stabbed any other person, I would have had no hesitation in imposing a higher sentences. Your actions or behavior indicates to me that you are a man of violence.

42. Your actions ha caused the premature death of a young man. The deceased was a young 20 year old man. He had his life and future ahead of him, but you decided to be God and took his life away. He is now gone forever. His loved ones, have now lost him forever. In my view, I am sure his family and relatives were looking forward to the day he graduated as a teacher and looking forward to him contributing to their well being. That of course, will not happen now because of your actions. No amount of compensation or expression of remorse can replace a lost life in such a tragic and fatal circumstance. Further, you attacked an unarmed person and you killed him over a very silly act on his part.

43. In my opinion, the crime of murder is a serious and prevalent crime of violence and like all serious and prevalent crimes of violence calls for an immediate punitive and deterrent custodial sentence.

44. For the reasons I have given, you are convicted and sentenced to fifteen (15) years imprisonment in hard labour.

45. From that, I deduct the remand period of 4 years, two months and six days and leaving a balance of ten (10) years, nine (9) months and twenty-four (24) days imprisonment to serve.

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