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State v Kaka (No.02) [2013] PGNC 310; N5083 (11 February 2013)

N5083

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1028 OF 2011

THE STATE

V

SAMUEL KAKA
(N0.2)

Kokopo: Lenalia, J
2012: 2nd & 4th October, 4th & 13th & 24th December
2013: 4th, 7th, & 11th February.

CRIMINAL LAW – Charge – Murder – Sentence after a finding of guilty – Criminal Code s.300(1)(2)

CRIMINAL LAW – Principles of sentencing in murder cases – Factors for consideration – Appropriate sentence

Cases cited.

Avia Aihi (N0.3)-v-The State [1982] PNGLR 92
The State-v-Aiaka Karavea & Anor (1983) N452 (M)
Ure Hane-v-The State [1984] PNGLR 105
The State-v-Kwayawako [1988] PNGLR 174
The State-v-Laura (No.2) [1988-89] PNGLR 98
Lawrence Simbe-v-The State [1994] PNGLR 38
Aloises Peter Iboro Kovei-v-The State (2001) SC676
The State-v-Joseph Ulakua (22.5.02) N2240
Anna Max Marangi-v-The State (2002) SC702
The State-v-Jonathan Sokai (2002) N2334
Simon Kama-v-The State (1.4.04) SC740
Kepa Wanege-v-The State (2004) SC 742
The State-v-Angavi (No.2) (2004) N2590
Manu Kovi-v-The State (2005) SC 789
Max Java-v-The State (20.12.02) SC 701
The State-v-Kaul Niruk & Kubak Nurvue (14.10.07) Cr. No. 801 of 2001

Counsel

Mr. L. Rangan, for State
Ms. J. M. Ainui, for Accused

11th February, 2013

1. LENALIA, J: Samuel Kaka of Ulagunan village, Kokopo was found guilty of one count of murder contrary to Section 300(1)(2) of the Criminal Code. On 4th of this month the court found you guilty of being a principle offender of the murder of Mr. Brian Lee as the State invoked s.7 and 8 of the Criminal Code.

2. The evidence on which the prisoner was found guilty on came from two witnesses and statements of ten witnesses plus the record of interview in Pidgin and English. In case of witness Henry Lote, his evidence relates to him hearing the prisoner telling the boys who were sitting outside his house while he was inside his bed that, he (accused) and other boys had assaulted and killed the victim.

3. In case of Josepha Joshua, she was an eye witness who saw the accused and other boys brutally assault the victim at Ralum Club around the steps to Queen Emma Lodge near the club. She identified and recognized the prisoner and referred to him as 'Sense". In fact both witnesses know the prisoner well and even witness Henry referred to the prisoner as 'Sense'. On the basis of the evidence, the court found the accused guilty. (For detailed discussion of the evidence refer to judgment on ruling on verdict dated 4th February 2013).

Addresses on Sentence

Samuel Kaka

4. In allocutus, the prisoner said, he has been found guilty and he respects the court's finding. He asked for leniency.

Defence Submission on sentence.

5. Ms. Ainui addressed the court on a number of things. First on the prisoner's antecedence, he is:

➢ 23 years old now.
➢ He comes from Ulagunan village, Kokopo, E.N.B.P .
➢ His parents are both alive.
➢ He is the fourth born in the family of eight siblings with four brothers.
➢ He was married when he was arrested, but his wife had left. They have one child.
➢ He completed his Grade 8 at Ulagunan Primary School and he did not go further.

6. On what should be an appropriate sentence to be imposed, counsel submitted that, this case does not warrant the maximum penalty of life imprisonment. On mitigations counsel asked the court to consider the following factors:

➢ The prisoner is a youthful offender,
➢ He was 21 years at the time he was arrested,
➢ No weapons were used,
➢ The prisoner's expression of remorse and call for leniency.

7. She asked the court to consider the fact that there are other offenders who were together with the accused on the night the offence was committed. They have not been arrested and the court should sentence the prisoner to a term suggested in category 2 in the Supreme Court case of Manu Kovi-v-The State (2005) SC 789.

Prosecution address on Sentence.

8. Mr. Rangan's submission addresses the serious nature of the offence of murder. Counsel cited the case of Aloises Peter Iboro Kovei-v-The State (2001) SC676 where the National Court sentenced the offender to life imprisonment. That was a case where the appellant appealed inter-alia on the excessiveness of a life imprisonment sentence imposed by the National Court for the brutal killing of a female following her abduction and rape. The Supreme Court dismissed the appeal.

9. Counsels argued that, this was the killing of an innocent person and because the prisoner and those others had robbed him of his mobiles and may be some money, makes this case a serious case. He asked the court to consider an imprisonment term in category 3 suggested in the Manu Kovi (supra) case.

Victim Impact Statements.

10. I have read the four Victim Impact Statements. The loss of loved ones is always a time of grief and sorrow. Words cannot express this kind of experience.

11. In the case of Mr. Simon Foo, the elder brother of late Brian Lee, the killing of his brother haunts him. He asked the Court to consider the fact that the deceased left behind young children and he himself and his family have been left in a situation where they will have to cater for the children of the victim which is an extra burden for him and his wife.

12. The victim's only sister, Angie Lee, expressed shock on the death of her brother. She asked a question as to why would the gang brutally kill a simple man like her late brother as the late Lee was a friend to all and an enemy to none. She is of the view that, she had been sentenced to life haunting loss and experience of the loss of her brother will haunt her forever and ever.

13. Evelyn, the wife of Mr. Foo expresses similar concern about the death of her tambu (brother in-law) that has devastated her own family and the children of the late Brian Lee and all their family members.

14. Nicole Lee is the daughter of late Brian Lee who said the victim played the part of a mother because, their mother left them when they were small and the victim looked after them and he was a bread winner for them. According to Nicole, the death of her father is a great loss to her and her sister and had caused emotional hurts to her and her sister. The victim's only sister

Application of law

15. The prisoner was found guilty on the charge of murder under s.300 (1) and (2) of the Criminal Code. I quote the above Section in the following terms:

"(1). Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating—

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i); or

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c); or

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1)(b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1)(c), (d) or (e) applies, it is immaterial that the offender—

(a) did not intend to cause death; or

(b) did not know that death was likely to result."

16. The maximum penalty provided under the section is life imprisonment. What the court will now decide is what should be the appropriate penalty for the prisoner. The court has taken time to do that.

17. It is established law that the maximum penalty should be reserved for the worst type case: Avia Aihi (N0.3) v The State [1982] PNGLR 92 and Ure Hane-v-The State [1984] PNGLR 105. It is also established law too that, each case of murder or any homicide cases for that matter ought to be considered on its own factual circumstances: Lawrence Simbe-v-The State [1994] PNGLR 38.

18. On a number of cases, the Supreme Court authorities have suggested increases in the trend of sentencing for the crime of murder and other homicide cases. An example of such proposition can be found in Anna Max Marangi-v-The State (2002) SC702. In that case the Supreme Court called for a review of sentences for murder with the view of increasing it to render consistency with sentences for the offence of manslaughter.

19. In Simon Kama-v-The State (1.4.04) SC740, the Supreme Court sitting in Mount Hagen comprising of Sevua; J, Kandakasi; J & Lenalia; J reviewed the guidelines set in The State-v-Laura (No.2) [1988-89] PNGLR 98 and suggested six categories. In reviewing the tariffs of sentences for the offence of murder the Court said that where an accused pleads guilty or is found guilty on charge of murder, the court should approach sentence with serious consideration of the maximum penalty fixed by legislature first. The offender then bares the onus of establishing why the maximum penalty should not be imposed.

20. In Alois Peter Iboro Kovei-v-The State (14.12.01) SC 678 an unreported judgment, the appellant appealed against a sentence of life imprisonment. The murder in that case was committed in pursuance of abduction and rape. The trial judge considered that that was a worse type offence. On appeal the Supreme Court dismissed his appeal although he appeared to be a young offender but had a criminal record against him.

21. In Max Java-v-The State (20.12.02) SC 701, the appellant pleaded guilty to one count of murder and was sentenced to 20 years imprisonment. He appealed on the grounds of severity of sentence. The appeal was dismissed by the Supreme Court because the sentence was appropriate to the degree of violence taken by the appellant. In The State-v-Joseph Ulakua (22.5.02) N2240, a case in the National Court, the prisoner was sentence to 20 years imprisonment for the murder of his wife.

22. In Simon Kam-v-The State (supra), the National Court sentenced the appellant to 25 years imprisonment following a murder committed in the course of committing an armed robbery during which the victim was shot. He appealed on the basis that the sentence was excessive. The Supreme Court dismissed the appeal as it found that there was no error on the part of the sentencing discretion of the primary court.

23. In Kepa Wanege-v-The State (2004) SC 742, the appellant was sentenced to 20 years for the similar offence as the one before me. He pleaded guilty and was sentenced accordingly. His grounds of appeal were that the sentence was too excessive, that he had paid full compensation to the relatives of the deceased and that he had surrendered to the State authorities. His appeal was dismissed on the basis that the three grounds of appeal were unmeritorious.

24. One thing is clear from the sentencing trends by the National Court and Supreme Court on appeals about the seriousness of homicide cases. This approach is a reflection that there is so much unwanted killings in all communities in the country and sentences for the offence of willful murder, murder or manslaughter should be raised high in the hope to deter this heinous crime.

25. The prisoner's case could fall under category 2 or 3 suggested by the Supreme Court in the case of Manu Kovi-v-The State (2005) SC 789. That is because I find from the evidence and facts presented to the Court, that the prisoner did not have any strong intention to cause grievous bodily harm to the victim. He did not use any weapons. However there might have been elements of pre-planning since the victim was robbed of his mobiles and other valuable items. Such elements must be balanced against the mitigating factors when one is asked for the reasons why the prisoner committed the offence.

26. The maximum penalty for murder under s.300 of the Criminal Code is life imprisonment. This maximum sentence is not mandatory because under s.19 of the Code there is always the discretion in the Court to impose a term of years. However, the exercise of discretionary power of the Court under that provision must be based on the sentencing policy and principles applicable to sentencing options given to the Courts by legislation in any given circumstances.

27. The task of the sentencing authority is to attempt to strike the balance between the seriousness of the offence and the compelling interests of the people through the State to see that those who are convicted of offences must be punished on the one hand and the personal interests of the accused on the other.

28. Whatever determination on sentence is arrived at is entirely within the domain of the sentencing authority exercising proper restraints in imposing punishment that is not inordinately low or excessive and having proper regard to the relativity of the offence with the other degrees of that particular offence. His Honour Kandakasi J applied this sentencing principle in the case of, The State-v-Angavi (No.2) (2004) N2590 when his Honour said:

"In arriving at that sentence, I noted that the sentences in the past-decided cases are only guides. This is so because; usually the question of what is an appropriate sentence in any case is dependant on the particular circumstances or facts of each case. Hence, in the exercise of the discretion vested in him or her under s. 19 of the Criminal Code, a sentencing judge always has to take into account the prevalence of the offence and the interest of the society to have itself protected from offenders on the one hand and on the other hand, the need to rehabilitate offenders."

29. Another elaborate statement of the principles of sentencing in murder cases was made by His Honour, Injia J (as he then was) in The State-v-Jonathan Sokai (2002) N2334 stated with clarity, the principle that is well settled on the proper exercise of discretionary power of sentencing on murder cases where the court said:

"The maximum punishment for the crime of murder is life imprisonment. By virtue of s.19 of the Criminal Code, the Court has discretion to impose a term of years in appropriate cases. The maximum punishment is reserved for the worst case of its kind. The question whether the circumstances of a particular case constitute the worst case of its kind is a question of fact. In considering the appropriate punishment in a particular case, the Court must have proper regard to the seriousness of the offence, the community interest intended to be protected by the offence, the purposes of sentencing to be emphasized, the personal circumstances of the offender and extenuating circumstances which mitigate punishment and the aggravating circumstances of the offence. Other related relevant factors include the effect of voluntary intoxication, prospect for rehabilitation of the offender and any likelihood that the offender will re-offend in the future and thereby pose a danger to the community: John Elipa Kalabus v. The State [1988] PNGLR 193. The Court must then balance all these relevant factors and impose a sentence which fits the crime."

30. What particular sentence 'fits the crime' has no precise meaning and any attempt to define it with precision by mathematical or scientific formula will be impossible, unless Parliament prescribes one sentence only for a particular offence.

31. In Aloises Peter Iboro Kovei-v-The State (2001) SC676, a case where the appellant appealed against life imprisonment on the grounds of severity of sentence, where a life imprisonment sentence was imposed by the National Court for the brutal killing of a female following her abduction, rape and murder. In considering inter-alia whether the sentence was severe, the Supreme Court comprising of Amet CJ, Gavara Nanu & Kandakasi JJ, observed that:

"It is a well accepted principle in our criminal jurisdiction now that, the maximum penalty prescribe by the legislature should be reserved and imposed only for the "worst type" or "worst category" of the offence under consideration. This has been made abundantly clear in the context of willful murder cases. For example, the Supreme Court in Avia Aihi v.The State (N0.3) [1982] PNGLR 92 at page 96 referred to its earlier decision in Goli Golu v. The State [1979] PNGLR 653 and said:

"In fact this Court has said that the maximum sentence for any offence (including wilful murder) should be reserved for the most serious instance of a particular offence."

32. This principle of law emerges from the sentencing discretion vested in the Court by virtue of s.19 of the Criminal Code. This provision essentially gives the Court discretion to impose a lesser penalty upon an offender if the factual circumstances do not establish a "worst case". How the discretion is exercised depends on the factual circumstances of the case under consideration. Most importantly, the Court looks at the factual circumstances of how the offence was committed, the mitigating factors and the aggravating factors.

33. I distinguish this case from the case of The State-v-Kaul Niruk & Kubak Nurvue (14.10.07) Cr. No. 801 of 2001 which is the case cited by Ms. Ainui, where the prisoners were sentenced to 15 years on a sorcery related case. Five years were suspended. In sorcery cases, special consideration may be given to offenders due to the wide spread belief of sorcery in the country. (See case of The State-v-Aiaka Karavea & Anor. (1983) N452 (M) or that of The State-v-Kwayawako [1988] PNGLR 174. In the instant case, the victim was attacked badly resulting in him sustaining cerebral hemorrhage and he eventually died as a result.

34. I have considered all mitigations submitted on behalf of the prisoner. I consider the fact that he is a young offender. He has a previous conviction in the District Court for escaping lawful custody. He was sentenced to two months imprisonment. However, on the other hand, I take into account the serious nature of this kind of killing.

35. I take into account the fact that, the victim was an innocent person. He was brutally attacked and he died almost instantly. The injuries inflicted on the victim's body as shown on the medical report was administered with determinate blows and he must have been repeatedly hit on his head as the doctor found that late Brian Chimang Tomong Lee sustained significant head trauma. This culminated into the development of "skull base fracture" which led to his ultimate death.

36. I considered the prosecution submission of the aggravations on the nature of this crime and I have also considered the terms of all victim impact statements. The issue is what should be the appropriate penalty that can be imposed on the prisoner.

37. On the instant case, my assessment of the evidence is that it would fall into the second or third category suggested in the case of Manu Kovi-v-The State (supra). The Supreme Court suggested that, in a case where it is contested or uncontested with mitigations and aggravations, sentences for this type of offence should range from 16 to 20 years or 20 to 30 years.

38. In this case, the prisoner was found guilty after a trial. I consider that a sentence that would fit the crime committed by the prisoner is 25 years imprisonment. He is sentence to 25 years imprisonment. The court deducts the custody period from this head sentence and he shall serve the balance in hard labour.
____________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner