N4435

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO 306 OF 2011

THE STATE

V

JAMES TADE TORAI

Kokopo: Maliku AJ
2011: 7th, 10th November

CRIMINAL LAW – Murder - s 300 Criminal Code Act.

CRIMINAL LAW - Sentencing – plea of guilty – use of offensive weapon – Accused first offender- appropriate sentence to be imposed on the accused.

Cases Cited: 

State-v- Laura (NO.2) [1988-89] PNGLR 98
Simon Kama-v- The State (2004) SC740
Manu Kovi-v- The State [2005] PGSC; 34 SC 789(31 May 2005)
The State-v- Tobut Ingson Marum and Others CR. 1533 of 2005
The State-v- Issac Nickson and 2others (14.09.07) CR.1076 of 2005
The State-v- Kevin Wakore (2007) N3222
The State-v- Norman Walando – CR NO.911 of 2005-2008

Counsel: 

Mr A. Bray, for the State
Mr G. Kerker, for the Accused 

10th November, 2011

1.	MALIKU AJ: The accused pleaded guilty and was convicted for that he did on the 4th of January 2011 at Kebereka Block, Sinivit, East New Britain Province murdered Sairu ToKulau, thereby contravening Section 300 (1) (a) of the Criminal Code Act. 

The Issue

2.	Although the defence counsel had submitted a number of questions/issues for the Court to consider in consideration of the appropriate sentence for the accused before me these nevertheless can be reduced to two issues.

(i)	Issue 1: 

Does this matter fall in the "worst type" or "worst category" of cases?

(ii)	Issue 2: 

What is the appropriate sentence to be imposed on the accused?

Fact

3.	The accused and the deceased were at Kebereka Block on the 4th of January. Sometimes prior to this incident the deceased and some other boys stole some taro-(Singapore- taro) from the accused garden. 

4.	During the initial enquiries the deceased and the boys denied stealing from the accused garden but later admitted when a wife of one of them asked them in her bid to pay K6.00 for the stolen taros. 

5.	The accused was frustrated because the deceased and his boys denied stealing taro from his garden. He confronted the deceased and the boys. A fight broke out between the deceased and his boys and the accused and his boys. 

6.	During the course of the fight the deceased fought with the accused. The deceased picked up a mumu stone and threw it at the accused hitting him on the chest. The accused at that particular time was armed with a long bush knife. The deceased then went to pick up the mumu stone again. As he was picking it up and was about to stand up the accused swung his bush knife at the deceased. 

7.	The tip of the knife (the front part of the knife) struck the deceased on his forehead. The deceased was rushed to the hospital but died on arrival. 

8.	The State alleges that the accused intended to cause grievous bodily harm on the deceased and as a result the decease died. The accused contravened Section 300 (1) (a) of the Criminal Code Act.

Allocutus 

9.	When I administered the allocutus to the accused he said:

i.	I say sorry to God.

ii.	I say sorry to the clansmen of the victim.

iii.	I say sorry to my clansmen

iv.	I say sorry to this Court.

Mitigating factors

10.	Mr Kerker for the accused had submitted the following as mitigating factors for the accused in addition to that which he told the Court on his allocutus.

i.	The prisoner is a first offender.

ii.	The prisoner pleaded guilty to the charge of murder which had save time and resources for this Court.

iii.	The prisoner during his allocutus had expressed remorse and have apologized to God Almighty, to this honourable Court, to the immediate relatives of the decease and the general community of Kebereka.

iv.	The Court should take into account his previous good character in that he had no prior criminal records and comes from a simple village background.

v.	The prisoner had corpora ted well with the Police by surrendering to them.

vi.	The prisoner is very young and would want to look after his two young children.

vii.	The prisoner had forgone his defence of provocation as well as self defence and opted to plead guilty.

viii.	The prisoner had with his relatives and in-laws had met up all the funeral expenses, including coffin, transportation, tolai shell money of 150 tabu (shell money) at the monetary value of K750.00.

ix.	This is a matter that was not pre planned by the accused.

Aggravating factors

11.	In response to the mitigating factors that were submitted by Mr Kerker for the accused Miss Kleinig for the State highlighted the following:

i.	The use of a lethal weapon – a bush knife which was used to cause a fractured skull on the deceased.

ii.	There was some degree of planning on the part of the accused in that the accused had armed him with a bush knife and took with him two male companions and went to where the deceased was. The State relies on the Question and Answer on page 13 and 19 of the Record of Interview of the accused.

iii.	The State acknowledged several mitigating factors put forward by counsel for the accused in particular the youthfulness of the prisoner, his prior good character and his reputation as presented in the Pre Sentence Report. 

iv.	The State also acknowledged the accused cooperation with the police, and his timely plea o f guilty before this Court. 

v.	The State also acknowledges the compensation paid that is stated in the Pre Sentence Report. 

vi.	The State acknowledges the payment of Bel Kol money according to the Pre Sentence Report to ensure that the families were safe.
 
vii.	The State also acknowledges the family involvement on the matter in providing for the coffin, transportation to repatriate the body to Watom Island.

viii.	A life was lost forever.

ix.	The deceased was a young male person. 

What is the appropriate penalty?

12.	Mr Kerker cited a number of cases in which the issue of appropriate penalty on murder charges were dealt with. Mr Kerker submitted that the case of State-v- Laura (No2) [1988-99] would be the basis of the defence submission. In this case the guideline for sentencing was set in respect to persons convicted of murder. However in the case of Simon Kama –v- State (2004) SC 740 the guideline set in the case of Laura was reviewed with the following:

i.	Where there is a guilty plea with no factors in aggravating, a sentence of twelve (12) to sixteen (16) year.

ii.	Where there is a guilty plea with aggravating factors other than the use of firearm and the commission of another serious offence, a sentence between the ranges of seventeen (17) to thirty (30) years.

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

iv.	On a plea of not guilty with no aggravating factors a range of sentence from seventeen (17) to twenty (20) years.

v.	On a plea of not guilty, with aggravating factors other than the use of firearm and in the course of committing or attempting to commit another serious offence, a range of sentence from twenty two (22) to forty (40) years.

vi.	Where there is a not guilty plea with aggravating factors where there is a use of firearm and or such 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.

13.	The other case which Mr Kerker cited is the case of Manu Kovi-v- The State in which he submitted adopted part of the guideline set in the case of Simon Kama -v- The State (supra). 

14.	Their honours in the case of Manu Kovi said: "Since Laura (No2) the Courts have repeatedly warned that sentences for murder will increase and imposed sentences beyond the tariffs suggested in that case. In our view the tariff for murder after the Laura (No2) should no doubt be adjusted upwards to reflect the increase in murder sentences and manslaughter sentences as noted in Anna Max Marangi."

15.	Mr Kerker submitted that using the categories set out in Laura (No2) as a guide he suggested as a guide the following tariff:

i.	In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12years up to 15 or 16 years. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

ii.	In a contested case or uncontested case with mitigating factors and aggravating factors, a sentence of 16-20 imprisonment 18

iii.	In a contested or uncontested case with special mitigating factors and special aggravating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20-30 years 19.

iv.	In contested or uncontested cases the maximum of life imprisonment should be reserved for the worst of its kind such as the unexplained, pre planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons, substance, summary execution style killings, killing in full view of public without regard for the safety and lives of others, etc... These are cases where there are no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime.

16.	Mr Kerker in the end of his submission submitted that subject to the discretion of the Court under Section 19 of the Code the circumstance of this case does not warrant a life sentence or the maximum penalty.

17.	It is not a case where the prisoner was committing an armed robbery when he murdered the victim, or was involved in an unprovoked assault which led him to swing the bush knife at the deceased.

18.	He further submitted that following the sentencing tariff set out in the case of Manu Kovi this case falls under tariff one (1) of the murder cases.

19.	He submitted to this Court that the starting point of 13 years would be appropriate for this matter. He further submitted that 4years should be suspended with strict conditions and the prisoner is to serve the remaining balance after pre trial custody period is deducted.

20.	Ms Kleinig for the State first of all expressed gratitude to defence counsel for setting out the matters to be set out in his present submission to the Court significantly as far as low maximum penalty and the applicable cases of laws to assist the Court. The State agrees that it does not press for the imposition of the maximum penalty in this matter.

Response by the State

21.	Ms Kleinig submitted that the State wishes to highlight the aggravating features of this offence and then to acknowledge the features of mitigation which relates to the prisoner.

22.	First of all in so far as the aggravating features is concerned the State points to the use of a knife, a deadly weapon which was employed with significant force to fracture a skull, the skull of the deceased.

23.	Secondly, the State respectfully points to the fact that there was some degree of planning involved in this offence, in that the prisoner armed himself with a bush knife and with him two male companions went over to where the deceased was with intent to fight. Ms Kleinig submitted that the State relies on questions and answers 13 and 19 in the Record of Interview to support this submission.

24.	 Thirdly, Ms Kleinig submitted there was some desire to cause grievous bodily harm to the deceased given the location of the blow that was struck by the bush knife and the position.

25.	Ms Kleinig submitted that the State respectfully acknowledges several mitigating features of this matter in particular the use of the prisoner's relatives, the young age of the accused, his good reputation as evidenced by the Pre Sentence report, his co operation with the Police, his timely plea of guilty.

26.	Ms Kleinig submitted the State acknowledges the considerable compensation that was paid in this matter. The amount evidenced by the pre sentence report is even higher than that spelled out in Mr Kerker's submission and that the State take note of the Bel Kol money that was referred to in the pre sentence report which was paid to restore the good name of the family and to ensure the family was safe.

27.	Ms Kleinig then addressed the Court on the two Supreme Court decisions that provides some assistance in sentencing cases. First Ms Kleinig referred to the case of Manu Kovi –v- The State (supra) which was cited by defence. Ms Kleinig submitted that their honours regarded category 1 and not 2 as appropriate in cases where no weapon was used. In this case a weapon namely a knife was used.

28.	Ms Kleinig further submitted that this amounts to an aggravating feature taking the prisoner's case into the second category of matters considered by their honours in that Supreme Court Appeal. Ms Kleinig submits that the prisoner's case falls under category 2 and the State specifies a range of term as being appropriate for category 2 offences that range of terms being from 16 to 20 years.

29.	In the case of Simon Kama -v-The State (supra) which was cited by the defence counsel Ms Kleinig submits where circumstances such as a guilty plea and a use of a knife might lead to a range of sentencing from 17 to 30 years as being regarded as appropriate.

Suspension of sentence

30.	In respect to this issue the State submits that the prisoner had committed a serious offence and the Court should be reluctant to suspend any part of the sentence for murder hence the defence had not put forward a clear case why there should be partial suspension of any term of imprisonment.

Principle on sentencing

31.	The principle or guide line on sentencing is well settled in our jurisdiction in the case of Rex Lialu - v - The State [1990] PNGLR and is: 

"Sentence in any given case will depend on its own peculiar facts.... the Court ought to have regard to all aggravated effects of all relevant considerations on matters which aggravate or mitigate the serious nature of the offence and then to decide an appropriate penalty". 

32.	I agree that maximum prescribed penalties are reserved for the "worst type" or "worst category" of cases. This was settled in the case of Goli Golu-v- The State [1979] PNGLR at page 653 and re stated in the case of Avia Aihi-v-The State (NO3 [1982] PNGLR 92 at page 96. 

33.	I agree that this matter is a serious matter but falls short of worse type or worst category. There was some degree of planning. A weapon was used. There was a desire to cause grievous bodily harm and there was some element of viciousness by the accused when he attacked the deceased. 

34.	The crime of murder has been on the rise and in a case like this the most prominent reason of sentencing is a punitive one with a view to deter the public from committing the same offence.

35.	In my view killings which arise from unprovoked circumstances or minor provocation circumstances or controllable provocation had become prevalent and are on the rise. They too call for harsher penalty.

Address to the accused before sentence
 
36.	You were provoked by your taro stolen from your garden however such provocation was controllable and other avenues could have been embarked on such as the offer to pay for the stolen taro by a wife of one of the persons believed to have stolen taro with the deceased from the accused garden to prevent loss of life. You refused that offer and chose to fight which resulted in a loss of life from a very simple stealing of your taro from your garden.

37.	In sentencing I consider the murder you committed falls within a serious offence warranting the maximum prescribed sentence, life imprisonment. But I am not going to impose life imprisonment on you. I find that there existed extenuating circumstances such that it would not be just to inflict the punishment of life imprisonment. I have also taken into account the mitigating factors which your counsel submitted for me to consider and take into account when considering the appropriate sentence for you. 

38.	Having considered your counsel's submission on the appropriate sentence and the submission from the lawyer representing the State I conclude that your case falls in the category 2 of Sentencing Guidelines in the case of Manu Kovi-v- The State [2005] PGSC 34; SC 789 (31 May 2005) which is a sentence range from 16- 20 years imprisonment.
 
Conclusion 

39.	The accused is sentenced to twenty (20) years imprisonment. I do not intent to deduct any part of the sentence; however the accused is to serve the balance after the pre trial period in custody is deducted. 

___________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused