N5928

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 682 OF 2014

BETWEEN

THE STATE

V

ROBIN TARIA
Arawa: Kawi-iu, AJ
2014: 21, 24, 30 October

CRIMINAL LAW – Sentence – Murder – Prisoner stabbed deceased with kitchen knife – Fatal wound to the heart - Intention to cause grievous bodily harm - Criminal Code Act Ch. 262, s 300 (1)(a).

CRIMINAL LAW - Sentence – Mitigating factors – First time offender – De facto provocation – Expression of remorse – Minimal force used – No pre-planning – Aggravating factors – Use of offensive and dangerous weapon – Prevalence of offence

CRIMINAL LAW – Sentencing tariffs considered – Guideline sentences considered – Sentence of 13 years less period of pre-sentence custody – Partial suspension considered appropriate in the circumstances – Criminal Code Act Ch. 262, s 19.

Cases Cited

The State v Amos Young (2008) N3548
The State v Angeline Winara (No. 2) (2008) N335
Avia Aihi v The State (No 3) [1982] PNGLR 92.
State v Joe [2005] PGNC 127; N2832 (10 May 2005
Mangi v The State (2006) SC 880
 State v Mangi (No 1) [2005] PGNC 10; N2992 (11 October 2005) 	
Manu Kovi v. The State (2005) SC 789
The State v Nathan Bobi (No. 2) (2009) N3675 
State v Parao (2009) N3625
Simbe v The State [1994] PNGLR 38
Taiba Maima v Sma [1971-1972]PNGLR 49
State –v- Tupis Tom No: 2 (2009) N3675
State v Wakore (2007) N3222

Counsel:

J. Waine, for the State
F. Kirriwom, for the Accused

SENTENCE

30th October, 2014

1.	KAWI-IU, AJ: Robin Taria, you are charged that on the 04th day of October 2013 at Boria/Morgan Road junction, Arawa, AROB you murdered one Angelin Boran. 

2.	You pleaded guilty to the charge. I confirmed your plea after perusing the District Court committal depositions and finding that the evidence supported your plea. Your lawyer informs the court that the plea is consistent to his instruction.
 
BRIEF FACTS

3.	You pleaded guilty to the following facts: You have two wives; the deceased was your second wife, a school teacher at the time of her death. In the late night of 4th October 2013 somewhere about 11.00 pm you were dropped off by a friend on the road leading to your house at Boira/Morgan Road junction. You were drunk and unstable at the time. There the deceased met you, who had come to meet and take you home. However at that time an argument erupted leading into a fight. The fight got serious, and you beat your wife badly where she sustained fatal injuries to her body. She died as a result of her injuries. 
 
4.	State alleged that you intended to cause grievous bodily harm to the deceased. 

ISSUES

5.	The main issue for me to determine is what an appropriate sentence for you should be. This will depend on various factors such as the facts surrounding your case, your antecedents, mitigating and aggravating factors and the sentencing trend in this type of cases. These, I propose to discuss in this short judgment.
ANTECEDENTS
 
6.	You are 39 years old and come from Matana village, Boira. You have no prior convictions. 
 
 ALLOCUTUS

7.	In your address to the court on sentence, you told the court that you are sorry for what you have done and you know that was wrong. You say sorry to all the people, the family of the deceased and your own family. You also say sorry to the court, judge and heavenly father. You asked for the court to be merciful to you. You then asked the court to put you on probation.

SUBMISSIONS

Defence

8.	Your lawyer Mr. Kirriwom submits to the court that you pleaded guilty to the charge and thus have the overall effect of saving court's time and other resources which would have incurred had this case gone to trial. The offence is punishable by life imprisonment; however he has asked the court to exercise its discretion under section 19 of the Criminal Code to consider other forms of punishment. Your highest level of education is Grade 3. The deceased is your second wife and has no children from you. You have 3 children from your first wife whose ages are 15 years, 10 years and 6 years. You are a self-trained boiler maker and were employed by Dekenai at the time of this incident. Your lawyer told this court that you have been a good sportsman and have represented PNG on many occasions both locally and internationally in the sport of boxing. You were earning about K200.00 from your employment prior to this incident. Your family will suffer as a result, an event which no doubt you now regret. 

9.	Your lawyer submits to this court that you are appearing in court for the first time, and therefore a first time offender. You have expressed genuine remorse. You plead guilty to the charge.

10.	Your lawyer also submits certain matters that appear to be against you. These he told the court that the nature of the deceased death shows that you have a strong intent to cause bodily harm to the deceased. You were under the influence of intoxicating liquor as noted from your admission in the record of interview. Your lawyer conceded to the fact that offence of murder is prevalent in Papua New Guinea.

11.	Your lawyer Mr. Kirriwom referred the court to the case of Manu Kovi v. The State (2005) SC 789 where the Supreme Court had set sentencing guidelines and tariffs for homicide offences. He submitted that the circumstances of your case fall between Category 1 and 2 of the Manu Kovi tariffs which attract a sentence ranging between 16 - 20 years. He submits that the offence was committed in the spur of the moment, and no pre-planning was involved. The offence took place in a domestic setting. He therefore submits that taking aggravating and mitigating factors into account a sentence of between 12 -15 years would be appropriate in the circumstance, subject to section 19 of the Criminal Code.

State's Submission

12.	State after noting aggravating and mitigating factors, submits that the prisoner had a strong intention to cause grievous bodily harm to the deceased.

13.	Although no broken bones was caused to the deceased body, there were other serious injuries present, notably eight (8) deep wounds caused by sharp object on the facial area and scratches sustained to both cheeks.

14.	Swollen face due to multiple wounds on the face, scratches on both elbows and right knee showing that she had been dragged by someone. Apart from the kicks and punches on the deceased it was highly probable other instruments may have been used to wound the deceased resulting in her death as reported in the Medical Report. Prisoner was a professional boxer; however the nature of the injuries sustained is not consistent with punches. 
 
15.	The Court was referred to the case of State v Mangi (No 1) [2005] PGNC 10; N2992 (11 October 2005) and Manu Kovi v. The State (2005) SC 789. 

16.	Counsel submitted that the decision in Manu Kovi which was decided in 2005 be reviewed to reflect the circumstances of today. He submits that the present case would attract a sentence of 30 years subject to section 19 of the Criminal Code. 

THE LAW

17.	The crime of murder is created by Section 300 of the Criminal Code Act Ch. 262 which also prescribes those circumstances that constitute the crime and the penalty. You were charged under Section 300 (1) (a) which provides:

300.	Murder.

(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 
...
... 

Penalty:	Subject to Section 19, imprisonment for life.

18.	Murder is the second most serious category of homicide offences after wilful murder and thus appropriately attracts life imprisonment. This is a reflection of the value to which society through the State values the sanctity of life. 

SENTENCING TREND

19.	Some of the cases that this court has dealt with in order to gauze the attitude of the court and to assist me in determining what an appropriate sentence for you should be.

#	Case	Particulars	Sentence	
1	Mangi v. The State (2006) SC 880	Trial – Prisoner and deceased argued while drinking together – Prisoner stabbed deceased on chest with a knife – Found guilty 	Sentenced to 35 years - Sentence reduced to 16 years on appeal 	
2	Simbe v The State [1994] PNGLR 38	Plea – Prisoner believed that deceased was enticing his wife – Attacked him with a bush knife, inflicting a substantial chest wound causing death of deceased - Sentenced to 14 years – Appealed sentence	
Sentence of 14 years confirmed on appeal	
3 	State v Wakore (2007) N3222	Plea – Prisoner in the company of relative while armed with a home-made gun – Cut deceased twice with bush knife and shot him once on chest with gun – Vicious killing but no pre-planning. 	
12 years, 4 years suspended.	
4	State v Parao (2009) N3625	Plea – Court accepted prisoner's version of fact in absence of sworn evidence by State – Deceased, drunk, tripped over a tools where prisoner was helping to change truck tyre – Attacked prisoner by hitting him repeatedly – Prisoner took out knife and stabbed him, killing him – First time offender, remorseful, de factor provocation, substantial amount of compensation paid, no pre-planning, . 	
15 years. 	
5	The State v Tupis Tom; The State v Nathan Bobi (No. 2) (2009) N3675	Trial - Murder - Co prisoners - Death arising from night club drunken brawl - Mob attack - Powerful blow from fist - Left chest and abdomen - Respiratory failure and broken rib - First offenders - Prevalence of 	12 years	
6
	The State v Amos Young (2008) N3548
	Trial - Prisoner was a bystander, watching a group of men shouting obscenities - Was armed with a double edged knife - Prisoner assaulted one of the men – Deceased chased the prisoner, who then used the knife to stab the deceased and one other. The deceased died from the stab wound.
	17 years
	
 7	The State v Angeline Winara (No. 2) (2008) N3352	Murder – Wife stabbed husband with kitchen knife during domestic argument – Deep penetrating wound causing left lung to collapse – Deceased died of massive internal bleeding – Prevalent offence – Offence precipitated by history of violence and unhappy marital relationship – Sentenced to 17 years imprisonment.	17 years	
8	State v Joe [2005] PGNC 127; N2832 (10 May 2005)
	 Plea - Murder - Accused stabbed deceased ( a relative) with kitchen knife – Single stab wound from back on shoulder penetrating the heart – De facto provocation (that accused was a prostitute) - Mitigating factors – Need to consider all compelling interests for and against the accused – Purpose of sentencing considered
	12 years	

FACTORS FOR AND AGAINST YOU

20.	I find the following in your favour: 

•	You pleaded guilty to the offence at the earliest opportunity
•	You are a first time offender
•	There was no strong desire on your part to kill the deceased though you intended to cause some injuries to her body.
•	You have shown remorse despite the fact you have not done anything to reconcile with the deceased's relative by way of paying compensation.
•	There was no pre-planning

21.	On the other hand I find the following against you:

•	You used some form of offensive weapon as suggested by medical report.
•	 Deep cuts caused to facial region of deceased 
•	Prevalence of offence
•	You were intoxicated at the time 

22.	So with those circumstances what should be an appropriate starting point for you?

23.	It is now settled law as regards punishment that the maximum penalty is always reserved for the worst offences. It is also trite that sentences are meted out on the merits of each individual case. See case of Goli Golu v. The State [1988] PNGLR 19, Taiba Maima v Sma [1971-1972]PNGLR 49, Avia Aihi v The State (No 3) [1982] PNGLR 92.

24.	Does your case fall under the worst category of murder cases?

25.	 In addressing sentence both counsels have referred to the case of Manu Koivi (supra). Defence puts the range of sentence somewhere between Category 1 and 2 and considering the circumstances of the commission of the offence submits that an appropriate sentence would be between 12 – 15 years subject to section 19 of the Criminal Code. The State on the other hand submits that this type of spousal killing is now on the rise and that penalty should be increased. After making further reference to the case of Steven Mul Mangi (supra) in which the prisoner in that case was sentenced to 35 years, submits that the present case warrants a sentence of 30 years to measure with the prevailing circumstances of today. It is to be noted that the Mangi decision, was revisited by the Supreme Court on appeal and the sentence of 35 years imposed by trial judge was reduced to 16 years, Mangi v. The State (2006) SC 880. 

26.	Mr. Kirriwom of counsel for the prisoner in his estimation of the range of sentence as between the first and second categories appears realistic in so far as Tariffs in Manu Koivi are concerned. 

27.	After taking into consideration the aggravating and mitigating factors in your case I agree with Mr. Kiriwom that a sentence would be between the lower to mid Category 1 and 2 as elements of both categories are present in commission of the offence.

28.	Thus a sentencing range would be 12 – 16 years. I would set a starting point of 14 years. What will be an appropriate head sentence for you?

29.	I note that your mitigating factors outweigh the aggravating factors and hence a sentence of 13 years would be appropriate given the fact that there are no strong mitigating or extenuating circumstances.

30.	I therefore impose a sentence of 13 years. From this deduct the period you spent in pre-sentence custody – 1 year 2 months and 10 days. That will leave a balance of 11 years 9 months and 20 days. Should any of the balance of you sentence be suspended?

SUSPENSION

31. Is this a case of vicious attack etc. to warrant mandatory term of incarceration? If not should some parts of the sentence be suspended? Numerous decisions had been observed to allow the suspension of sentences wholly or partially in homicide cases.

32. In the Supreme Court case of Thress Kumbamong v The State (2008) SC 1017 the court said at para. 64:

"The courts need to re-examine and identify cases that require imprisonment for the protection of the society and the cases that do not warrant imprisonment but correction outside the prison system. This is not a new thing. The courts have been doing that for centuries but have failed to guarantee safer societies. What is new, however, is the question of what should be the primary focus of criminal sentencing and the suggested answer of correction and rehabilitation and not necessarily imprisonment in prisons. Adopting such an approach would enable the courts to address that which matters most, which is the emotional needs of an offender and the society as a whole for a safer society." 

33. Thus what appears to be the real focus of the court's edict is for the court to find a balance of the competing interest of the individual prisoner on the one-hand and the society at large. In my humble view, only in cases of the most vicious nature and propensity of prisoner to reoffend the prisoner should not be sent to prison. Prisoner unless a recidivist is a person in need of correction, rehabilitation and counselling. Whether he is sent to jail or not one thing is obvious, he will always interact with the society and his needs must be addressed so he can compete with the wider society as to rights and obligations. 

34. On the issue of suspension there is no lack of authority as the power to suspend sentence is provided under section 19(6) of the Criminal Code.

35. Case laws have given credence to the notion of suspended sentence. A sentence may be suspended if it will promote the personal deterrence, reformation or rehabilitation of the offender (The Public Prosecutor vBruce William Tardew (1986) PNGLR 91).

36. In the case of Thress Kumbamong (supra) the Supreme Court suspended 6 years and 11 months of the 9 year sentence and bound the offender over to be of good behaviour.

37. Then in The State v Lawrence Mattau (2008) N3865 where Kandakasi J. fully suspended the prisoner's 10 years sentence for manslaughter on conditions. Finally in The State v Kevin Wakore (2007) N3222 where Cannings J. suspended 4 years from the prisoner's 12 years sentence for murder. It is worth mentioning that the latter cases involved the use of firearms. 

38. I propose therefore to suspend part of your sentence on condition that you will enter into your own recognizance to be of good behaviour for the whole period of your suspended sentence. 

39. Your sentence is as follows:

Head sentence	13 years	
Pre-sentence Custody period	1 year, 2 months and 10 days 	
Resultant sentence	11 years, 9 months and 20 days 	
Period Suspended	5 years 9 months and 20 days	
Period of imprisonment	6 years to be served at Buka Corrective Institution	

40. The Court Orders as follows:

1.	The prisoner is sentenced to 13 years imprisonment.

2.	One (1) year, two (2) months and 10 days shall be deducted for pre-sentence custody period

3.	The resultant sentence therefore is 11 years, 9 months and 20 days.

4.	The prisoner shall serve 6 years of his sentence at the Buka Corrective Institution.

5.	The balance of 5 years, 9 months and 20 days is suspended on the condition that the prisoner shall enter into his own recognizance to be of good behaviour for the whole period of the suspended sentence.

6.	 In the event that the Prisoner breaches his recognizance, the said recognizance shall be forfeited and he shall be committed to prison at Buka to serve the balance of his suspended sentence.

Ordered accordingly. 

___________________________________________________________________________

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