State v Lohia [2011] PGNC 354; N4431 (26 September 2011)

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CIMINAL LAW – Sentence – Trial – Criminal Code Act, Chapter No. 262; s. 300(1)(a) – Murder – one count of - multiple stabbing – use of dangerous weapon - attack without warning on a defenseless victim –provocation in a non legal sense – first time offender - expressed genuine remorse - favourable pre-sentence report – victim impact statement considered – offence very serious and prevalent - delay in sentencing – principles discussed – sentence of 18 years imprisonment imposed – partial suspension of sentence in mitigation of the delay and positive pre-sentence report.

1. YAGI J: This matter came before me for sentence on 7th September 2011 with a history. On 19th July 2004 the offender was found guilty and convicted of murder under s. 300(1)(a) of the Criminal Code Act (the Code) by the National Court in Waigani. He was waiting to be sentenced when the trial Judge became incapacitated on medical grounds and consequently the sentence was delayed. In the end the trial Judge was unable to legally discharge his judicial function. There is therefore a delay of over 7 years.

2. The circumstances of the delay has given rise to an important issue in respect to the case, and that is, the question of whether another trial Judge is competent in assuming jurisdiction for the purposes of sentencing an offender in circumstances where the trial Judge’s function is by law rendered functus officio. This situation is akin or similar to the circumstances found in s. 3(1) of the Supreme Court Act particularly where one of the panel Judges of the Supreme Court is unable to perform or exercise his or her judicial function.

(1) Where in the course of an appeal before the Supreme Court and at any time before the delivery of the judgement, a Judge hearing the appeal is unable, through illness or any other cause, to attend the proceedings or otherwise to exercise his functions as a Judge—

(a) either party does not agree to the remaining Judges continuing to hear the appeal; or

4. In this case the trial Judge was on extended leave on medical grounds and eventually retired from office and therefore was unable to sentence the offender.

5. The State and the defence have agreed that in the circumstances I hear submissions on sentence and determine an appropriate sentence. I heard submissions and reserved the ruling on sentence. This is my decision on sentence.

6. The facts are not in dispute. The trial Judge made finding of facts as follows; the deceased was a teacher at Badihagwa High School in the National Capital District. The School staged its 10th grade graduation ceremony during the day on 4th December 2003 within the school premises. In the evening at about 7.30 pm the deceased and another colleague teacher namely, Franklyn Dudley, left the school premises and went to a beer outlet known as Asmarah in Hanuabada village. They wanted to have beer, it seems, to celebrate the occasion. At the beer outlet they met another person known as Joel Rohu. Together the three men had some beer. They stayed there until about 10.30 pm when they decided to call it quits and return to their houses at the school premises.

7. As the deceased and his two companions were walking back to their houses, they met a group of young boys. The offender was amongst the group. An argument developed between the offender and the deceased which resulted in a physical fight. The argument was over attempts by the deceased to have intimate relationship with two of the offender’s sisters. The deceased’s friend, Dudley, also became involved in supporting the deceased in the fight. In the course of the fight, the deceased threw a bottle of beer at the offender and smashed him on the face which drew blood. The fight was then stopped by another person.

8. The offender went to his house and washed the blood from his face. Meanwhile the deceased and his friend Dudley went to a house that belonged to Dudley’s brother in law.

9. After cleaning the blood from his face, the offender picked up a kitchen knife and returned in search of the deceased. He followed the deceased and Dudley to the house where both were heading.

10. As the deceased and Dudley were getting up the door step of the house, the offender caught up with them from behind. He stabbed the deceased with the knife a number of times. The medical report confirmed three stab wounds inflicted to the body of the deceased. The first wound is about 40 mm deep and is located around the rib area; the second wound is about 300 mm deep and is around the spinal area; and the third wound is 100 mm deep and is located around the chest area.

11. The deceased was admitted to the hospital but died from the injuries a day later. The cause of death was due to massive blood loss.

12. The offender is from Hanuabada village, National Capital District. There is no evidence as to his date of birth and so I am unable to determine his exact age. According to written submission on sentence filed by the offender’s lawyer on 25th March 2009, the age of the offender was put at 35 years. Therefore he would now be aged 37 years. In applying the same analogy, at the time of the offence the offender would have been aged about 29 years.

13. The offender is unmarried and resides with his father at his village. His father is still alive and is aged about 60 years whilst his mother passed on in 1989. He is the second born in a family of 4 siblings.

14. It is not clear whether the offender has any formal education. In the written submissions I referred to earlier, it is stated that the offender was educated up to high school and was employed prior to the offence. However, counsel for the offender Mr. Ninkama in his oral submission stated that the offender had neither a formal education nor employment prior to the offence. The pre-sentence report stated that the offender had primary level education. Nevertheless I accept that the offender has some basic education.

15. At the time of the offence he was unemployed. In 2007 he undertook a six months carpentry trade skills training course at the Koki Vocational Training School. After successfully completing the course, he took up employment with his current employer, HG Construction Ltd in Port Moresby, National Capital District.

16. Since being involved in this trouble, the offender has undergone a dramatic change in his personal life. A number of documents tendered by consent are testimony to this fact. For example, Exhibit “D2” is a letter from Rev. Dago Morea, a Senior Pastor with Good News Ministry Inc. where the good Pastor says that the offender had confessed to his past life and seeks to surrender himself “to God and accept Jesus Christ as his Lord and Savior.” Exhibit “D5” is a statement by Ray Lohia, the father of the offender. He states that the offender has realized his past misdeeds and has changed. I note, however, that both statements were made by close relatives of the offender and therefore I am mindful that these statements must be treated with caution as they are susceptible of being bias.

17. The offender has no prior record and is a member of the United Church faith.

18. A pre-sentence report dated 6th July 2009 was prepared by the Community Corrections & Rehabilitation Services of the Department of Justice & Attorney General. This report is favourable to the offender. It tends to support the view that the offender had realized his mistake and regrets the deep pain and suffering caused to the deceased family. He expressed his preparedness to make amends for the interest of his family, community and more importantly his personal life. He attends church services and activities regularly. The report also shows that the offender resides with his father in a 2 bedroom family house at Hanuabada village. The rest of his siblings have moved out of the house due to marriage. However, the family is a stable unit. He is in good health and has plans to continue to work with his current employer and is apologetic to the relatives of the deceased. The report also assessed the attitude of the offender to the offence as remorseful. In terms of potential danger to the community he is considered a low risk person. The report ultimately recommends for long term sentence on probation supervision with conditions. The recommendation is made on the basis that the offender is a first time offender, has shown remorse and there was contribution by the offender’s family towards the funeral expenses. I note, the report did not include any views expressed by the family and relatives of the deceased, however, I note too that an opportunity was accorded to the widow of the deceased but she failed to express any view.

19. Mr. Ninkama, counsel for the defence, relied on a written submission filed on 25th March 2009. He also made oral submission. The essence of the submissions by the defence may be summarized as follows. Firstly, it is submitted that this case is not a pre-mediated killing and therefore should not be categorized as a killing of the worst type. Secondly, there was provocation in the non legal sense involved. Third, compensation of K2,500.00 plus food stuff presented to the family and relatives of the deceased. Fourthly, the history of case presents a unique dimension in terms of the delay by the Court in sentencing the offender and therefore it ought to be given a special consideration. Finally, the mitigating factors outweigh the aggravating factors.

20. Counsel also submitted that this case falls under category 2 of the sentencing guideline suggested by the Supreme Court in Manu Kovi v The State (2005) SC 789 and therefore a sentence of 16 years imprisonment is appropriate with a partial suspension taking into account all the circumstances including the mitigation and aggravating factors.

21. The State also filed a written submission. Counsel for the State. Mrs. Ganaii, also made oral submissions; however, she merely reiterated what was already in writing. The submissions by the State can be summarized as follows. Firstly, homicide cases are prevalent and the Courts are increasingly concerned about this trend. This is reflected in the sentences imposed by the Courts and therefore it is important that the principles of deterrence, in terms of both personal and general, should be adequately reflected in the sentence. Secondly, the sentence in this case should be within the upper range of category 2 and not beyond category 3 of the Manu Kovi guideline and hence the appropriate sentence should be between 18 – 25 years. Thirdly, the offender should or ought to be sentenced consistent with the applicable sentencing trend or tariff at the time when he was entitled to punishment in 2004 but for the delay due to the incapacity of the trial Judge. Finally, there is no basis for sentence to be suspended either in whole or in part.

22. I think it is always useful at the outset to start by reflecting briefly on what the legal prescription is in terms of penalty for an offence. Under s. 300(1) of the Criminal Code Act, the penalty for committing murder is life imprisonment. This is the maximum penalty prescribed by law and is subject to the discretionary sentencing powers vested in the Court under s. 19 of the Criminal Code.

23. I start by acknowledging the assistance of counsel in this matter. This case is unique in itself because there has been a prolonged delay in delivering justice in terms of sentence or punishment for a serious crime. I have found the submissions to be helpful.

24. It is my task now to decide what is the appropriate penalty that should be imposed on the offender for committing the crime of murder for which he was found guilty and convicted by this Court on 19th July 2004.

25. I consider that an important issue was raised by the State in respect to the question whether the penalty to be imposed now should be the penalty that ought to apply in 2004. The issue is a novel one as there is hardly any precedent or case law concerning this issue in our jurisdiction. My research on this point had not proved successful.

26. Mrs. Ganaii has referred to two foreign cases; Nalawa v State [2008] FJCA 16, a decision of the Fiji High Court of Appeal and a decision of the Pitcairn Island Supreme Court, which citation has not been supplied. However, with some initiative, I was able to locate the case citation. The full citation is R v Christian & Others (No. 2) [2005] PNSC 1; [2005] LRC 745 (24 May 2005)

27. In Nalawa (supra) case, the appellant was found guilty and convicted of sex offences. He appealed against the conviction and sentence. He was granted leave to appeal on the issue of delay in the prosecution of his case. He claimed that he was not prosecuted within a reasonable period of time. The Court found that there was a breach of his constitutional right to a fair trial. The Court also found that the delay was caused by the criminal justice system including the Courts. In considering the question of delay the Court said that the relevant factors that need to be taken into account include matters such as the gravity of the case and the nature of the charge and ultimately, the Court, reached the conclusion that the appropriate remedy for delay is a proportionate reduction in sentence.

28. In Christian (supra) the Supreme Court discussed the issue of delay in delivering justice within a reasonable time in the context of the guaranteed right of a person charged with an offence under the convention and human rights legislation. That case was primarily dealing with breaches of human rights under the Humans Rights Act 1998 of the United Kingdom and the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The case involves prosecution of a number of defendants on Pitcairn Island on various sexual offences. Some of the offences were alleged to have been committed many years ago, in at least one case, about twenty years, but the charges were not laid and brought to trial within a reasonable time. The principal issues in the case were generally in relation to the administration of justice and the existence and enforcement of rule of law on Pitcairn Island. One of the key issues that arose in the case was the question of the delay in the prosecution of the offences. The appellants argued that there was considerable delay due to systemic failure in having judicial processes in place and therefore the delay amounted to a violation of the right to a fair trial within a reasonable time under Article 6 of the European Convention on Human Rights. The Court in that case reviewed a number of European including English authorities and came to the conclusion that there is divergence in the law particularly as regards to the remedy for the breach. One view was that where there is unreasonable delay in breach of the guaranteed right to trial within reasonable time the criminal proceedings should not continue. The other view, which is based on public policy considerations, is that criminal proceedings should not be stopped unless it would be unfair to and would prejudice the defence case. The latter principle was decided by the majority in the Privy Council in R v HM Advocate [2003] 2 LRC 51 and subsequently applied in A-G's Reference (No 2 of 2001) [2004] 5 LRC 88.

29. Both these cases are of course not binding on this Court; however, they have persuasive value. These two foreign cases can be distinguished to the present case on one primary fact. Those two cases were dealing with a defendant being charged and awaiting trial. In the present case, the offender had already been tried and convicted. This is the fundamental difference.

30. The equivalent right of an accused person in our jurisdiction is found in s. 37(3) of the Constitution. This provision states:

(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.

31. In my view, the constitutional imperative in s. 37(3) is clear. A person charged with an offence is entitled to a fair and expeditious trial. In this case, the offender has already been tried and found guilty by the Court. Consequently the constitutional imperative under s. 37(3) is inapplicable to this case.

32. Nevertheless, it is incumbent of the Court to ensure that it delivers justice in a timely manner. This is one of the fundamental tenets of the judicial system we have adopted. It goes without saying that justice delayed is justice denied, although the gravity of its effect would, I would suggest, generally be less serious as if it was an actual breach of s. 37(3) of the Constitution. In my opinion, where there is unreasonable delay in sentencing an offender and the fault cannot be blamed on an offender, the Court, in all fairness to the offender, may consider appropriate remedies including suspending a part of the sentence.

33. In considering sentence, I take into account the following mitigating factors in favour of the offender:

34. At the same time I must also take into account the aggravating factors that operate against the offender. There are a number of factors and they are:

35. I have also taken into account the personal circumstances of the offender as submitted by the defence counsel. I have also considered the comparative cases on sentences which both counsel have referred me to. I bear in mind the relevant sentencing principles that each case must be decided on its own facts; the penalty must not be too crushing and must fit the crime. The Courts sentencing power always remain a discretionary matter.

36. The trial judges have over the years exercised their discretion in sentencing offenders and imposed a range of sentences in homicide cases. The sentences have been decided taking into account a number of factors and considerations. In an effort to bring about uniformity in sentencing in homicide cases the Supreme Court has therefore decided that guidelines be introduced. The Supreme Court in Simon Kama v The State (2004) SC 740 and Manu Kovi v The State (2005) SC 789 did that in respect to murder and other homicide offences. The Manu Kovi case is the most recent guideline and therefore I will apply that guideline in this case.

37. It is helpful to first consider the guideline in Manu Kovi case. I set out the guideline for murder as decided by the Supreme Court in the Manu Kovi 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-planning – 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 offence.	Pre-meditated 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 Imprison- ment

38. The defence counsel submits that this case falls into category 2 of the guideline whilst the State submits that at worst this is a category 3 killing. I consider that this case fits into both categories because in my view a number of the factors in both categories are clearly present. In so far as category 2 is concerned, a weapon was used, there was intention to cause bodily harm and there was some element of viciousness. As regards category 3, the factors present are that it was a vicious attack and a dangerous weapon was used. I note there is no evidence of pre-planning and no other offence of violence occurred.

39. I therefore consider that this case falls somewhere at the lower end of category 2 and the lower end of category 3. Under the Manu Kovi guideline, in my view, this would translate to a sentence range of 16 - 21 years.

40. In this case, the offender had acted under provocation. A bottle of beer was smashed on his face. His face was bleeding. He was angry and therefore took reprisal action as revenge. Unfortunately, the degree of force used in revenge was totally disproportionate and unwarranted. The deceased was unarmed and defenseless. The attack was without warning. The offender said he only wanted to injure the deceased. However, the nature and extent of the injury suggest that the attack was vicious. The offender was under the influence of liquor and perhaps this may have some bearing on his action, but this is not a lawful excuse. I also note his change in life in terms of general rehabilitation and the fact that he is currently on steady employment. It seems to me that the offender has come of age in terms of maturity and responsibility. I note that since his conviction over 7 years ago, he has not been in trouble. This shows that he is now a reformed and rehabilitated person with a genuine desire to live a normal life as a peace loving person. A token amount of compensation has been made to the family of the deceased and in some respect it is a symbol of reconciliation and restoration of peace and harmony.

41. A life has been lost for completely unjustified reason. The sanctity of life has been time and again stressed by the Courts in homicide offences. No amount of grief, sorrow and compensation can restore a life. It is sacred and there is only one life. It is irreplaceable. A victim impact statement tendered by the State (exhibit "P2") showed that the family of the deceased has suffered considerable loss. The deceased is not an ordinary man. He is an educated person and an experienced teacher. He is the bread winner and head of the family. His death not only means a loss of a loved one but more significantly future loss of support to the family. They also have a legitimate expectation that justice will be delivered in this case. It should be borne in mind that justice is a two way sword.

42. The offence of murder is a very serious crime and this is reflected in the penalty prescribed by law. There are too many killings that come before the Courts. The offence is prevalent. This shows that people continue to disrespect the law. Those who kill other people also have no respect for the principle in the sanctity of human life. People who disrespect the law and have no regard for nor respect for a human life deserve to be severely punished. This is the legitimate expectation of the contemporary civil society. The punishment must be commensurate with the gravity of the crime and must reflect the society's abhorrence to such crimes including the need for personal and general deterrence on would be murderers.

43. In weighing all the matters I have alluded to in this case, I consider that the appropriate sentence is a term of imprisonment. I therefore sentence the offender to 18 years imprisonment in hard labour to be served at Bomana Correctional Institution. However, I suspend half of the term for two reasons, Firstly, there had been unreasonable delay in having his case dealt, and secondly, I am reasonably satisfied that the offender is a changed person as evidenced by the various reports including the positive pre-sentence report. For the avoidance of doubt, the offender shall only serve a sentence of 9 years imprisonment.

_____________________________________________________________
Acting Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Offender

National Court of Papua New Guinea

State v Lohia [2011] PGNC 354; N4431 (26 September 2011)