National Court of Papua New Guinea

JUDGMENT ON SENTENCE

13 Novembevember, 2014

1. GEITA J: The accused was arraigned on indictment charging him with the murder of his friend Changol Molean during a church gathering in Lorengau town on 30 October 1995, pursuant to Section 300 (1) (a) Criminal Code, Chapter 262. On arraignment he pleaded guilty.

Background

2. This truly is a sad state of affairs. Soon after the prisoner was committed to stand trial in 1996 he was ordered by the Court to undergo psychiatric examination at Laloki Mental Hospital on 13 May 1997. Over a period of 17 years he has been in and out of Laloki Mental Hospital, Correctional Service Institutions, Bomana, Lorengau and Lorengau National Court due to his claim of insanity hence incapacity to plead. Over the same period of time a myriad of psychiatric reports have been submitted to court either certifying his fitness to plead or otherwise. On one or two occasions his fitness to plead in fixtures of set trial dates have gone begging due to his claims of relapse into his former mental state of mind.

3. On 9 February 2010 the prisoner was diagnosed for schizophrenia by a team of psychiatric doctors at Laloki Hospital who certified that all his psychiatric symptoms resolved and his fitness to live a normal life again. He was formally discharged from Laloki on 19 November 2013 and transferred to Bomana to await his repatriation to Lorengau. Prior to his repatriation Dr. Losa Vati Wilbur Daugunu, the senior Psychiatric medical officer examined the prisoner again on 4 March 2014 and certified that there were no signs of psychosis and he had fully recovered. He further certified that the prisoner was fit to plead. His understanding of words guilty and not guilty, the nature of the charge, and his ability to instruct his lawyers formed part of the psychiatric assessment. On the strength of those professional opinions the accused was arraigned to which he pleaded guilty to the indictment.

4. The often quoted maxim of justice delayed is justice denied in my view is not applicable in this case and fingers must not be pointed at our criminal justice system save the prisoner himself despite having waited for 17 years to have his day in court today.

Brief Facts

5. The State's allegation is that during a church function at Ward 6 Lorengau town the prisoner armed with a kitchen stabbed his friend Changol Molean as he attempted to stop him from harming other persons nearby. The deceased was stabbed in the stomach and chest causing his intestines to be exposed. He died soon after the attack. The State alleged that he caused the death of the deceased and his actions were also intentional.

6. Section 300 (1) (a) Criminal Code Act creates the offence of murder and it is 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;

Penalty: Subject to Section 19, imprisonment for life.

ANTECEDENTS

7. No prior convictions are recorded.

ALLOCUTUS

8. Upon administering the allocutus pursuant to section 593 of the Criminal Code, the prisoners said: He was sorry for what had happened and apologised to the victims family members, to the court and to God. He said he committed the crime during one of those times he was under mental distress.

AGGRAVATING FACTORS

9. The circumstances of aggravation in relation to this offence are as follows:

1. A life has been lost
2. Nature of injury on vital parts of body: head/stomach
3. No amount of compensation will bring back the lost life
4. A dangerous weapon was used, a kitchen knife
   

MITIGATING FACTORS

10. In mitigation, the following factors are present:

1. There was no element of pre-planning

2. The prisoner entered a guilty plea

3. The prisoner is a first time offender according to his antecedent report

4. Co-operated with the police

5. The prisoner acted alone and not in a group

6. Held in pre trial custody for 19 years at Laloki Mental Hospital

PRE- SENTENCE REPORT

11. Upon application by your Lawyer for a pre-sentence report one was ordered. I have gone through the report and must commend the Probation Officer Mr Wep Ninau for a fairly balanced and honest report on your behalf from all interested parties including the victim's relatives. Your relatives and family members stand ready to assist you in any way they can but appear apprehensive due to your medical condition. The victim's relatives on the other hand are very accommodating despite the loss of their loved one. They have not retaliated, a credit to their wisdom and understandings in this whole sad affair. Their main concern now is on the long term welfare of the deceased's wife and his children who have since relocated to their village in Rambutso Island. Indirectly suggesting that some form of compensation be considered in addition to other punishments given to you.

12. You are a single man, unemployed and come from a well to do family with most of your family members working. Obviously with no independent financial mean and rely on your family for support. Some amount of K4, 500.00 was paid as compensation or "belkol" to the relatives of the deceased at the time. Your pre sentence report also states that you committed the crime under unstable mental conditions at the time and only learnt about what you had done the next day, in the police cells. You are member of the Roman Catholic Church.

13. As to your suitability for probation the Probation Office is not prepared to offer their services to you this time around as they feel very strongly that proper rehabilitation is best given to you by doctors trained in helping people like you and not others. The bottom line consideration is the occurrences of relapse which may again pose real danger to the general public. The Probation Officer has also pointed out to court that you have been in involuntary detention since the crime was committed in October 1995, a total of 19 years.

SUBMISSIONS FOR AND ON BEHALF OF THE PRISONER

14. In his brief submissions Defence Lawyer Mr.Tom Kaleh conceded that the crime was serious and warranted a custodial sentence, however he invited the court to also look into other sentencing options available to it. He submitted that despite insanity being a complete defence the prisoner has elected to plead guilty and advanced that at the time of the crime the prisoner was mentally ill. Defence Counsel submitted that the prisoner's mental condition also be considered during sentence and urged that the prisoner be subjected to further medical scrutiny and examination.

SUBMISSIONS FOR AND ON BEHALF OF THE STATE

15. The State Prosecutor Mr Francis Popeu however submitted at the outset that all homicide cases were serious in nature and should warrant custodial sentences as a starting point. He advanced that the mid range of category 2 sentencing tariff in Manu Kovi v The State [2005] PGSC 34; SC789 of between 18 to 20 years should be considered in light of the seriousness and gravity of the murder. Mr Popeu cod that the prisoners has been in pre trial custody for the last 19 years, a mitigating fact factor in his favour however given the seriousness of this crime of violence a head sentence of between 18 – 20 years was considered appropriate under the circumstances.

APPLICATION TO THIS CASE

Sentencing

16. I agree with State Prosecutor that the lead authority in homicide case is the famed case of Manu Kovi. Mr Kaleh for the prisoner steered clear of the Manu Kovi case. I set out here the relevant sentencing tariff for ease of reference.

SENTENCING TARIFF FOR MURDER OFFENCES

17. I am satisfied that the offence committed by the prisoner could easily fall within the worst category and possibly attract the maximum prescribed sentence i.e. life imprisonment. However the circumstances under which it was committed in my view for the moment does not warrant that sentence. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases (Goli Golu v The State [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193). I will refrain from imposing the maximum sentence.

18. Moving on to deciding on an appropriate sentence, I have had the benefit of submissions, though brief, but to the point from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner, I need not restate them here again. Notwithstanding this death being obviously tragic and not warranted, the prisoner's 19 years of self imposed incarceration on medical grounds appears to be a uniquely strong mitigating factor favourable to him. I am of the view that any further punishments over and above what the prisoner has gone through would cause grave injustice to him. Put differently his involuntary pre trail custody although self inflicted is sufficient punishment under the circumstances.

19. To their credit the deceased's family members and relatives did not retaliate when you committed this violent crime 19 years ago. In your pre sentence report given to me they have attributed the crime you committed to your mental condition at the time. Inferentially therefore supporting your plea that you were of unsound mind at the time. Your community likewise was abhorred with the crime you committed however acknowledges your mental sickness at the time. I have taken all that into account.

20. The principles of sentencing are engrained in four main pillars: deterrence, rehabilitation, restitution, and retribution. The more serious the offence or crime, deterrence and rehabilitation are often employed by trial Judges (John Elipa Kalabus v The State [1988] PNGLR 193). I take judicial notice of the above principles and pronouncements however the uniqueness of this case in my view does not warrant their application this time around.

21. Having had the benefit of the helpful arguments for and against the prisoner and all other considerations canvassed above, I have arrived at a conclusion that your case is considered exceptional and very unique. Therefore not withstanding the aggravating circumstances which in my view have been cancelled out by your mitigating circumstances I will impose a head sentence of 19 years on you. In the exercise of my discretion under section 19 of the Criminal Code there will be a deduction of the same number of years for your pre trial custody period. I refrain from making any probation orders nor any orders for your further detention on medical grounds as those responsibilities in my view should now be the concern of your immediate family members and not the State. I will however make orders for a reasonable compensation of K2500 specifically for the use of the deceased's wife and surviving children. Such compensation to be paid within 3 months from today upon your release. I note there is willingness on the part of your family members to receive you back into the family. Furthermore any prolonged detention in my view from here on would be harsh and oppressive.

SENTENCE.

The prisoner shall be released from Lorengau Correctional Service Goal after all necessary papers have been prepared, completed and signed off by all authorities concerned.

Sentence accordingly

__________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner