National Court of Papua New Guinea

13. Since both counsels have relied on the sentencing tariffs in the case of Manu Kovi (supra) I should point out that another Supreme Court decision of Thress Kumbamong v The State (2008) SC 1017 has departed from the fixed sentencing tariffs pronounced therein. The 2008 Supreme Court was of the view that the proscribed minimum and maximum sentences restricted the discretionary sentencing powers of trial judges. With the greatest of respect I too hold the view that trial judges discretionary powers in sentencing should be zealously guarded and not curtailed, save for Parliamentary intervention. Notwithstanding Thress Kumbamong case (supra) I will hold myself to be guided by the sentencing tariff in Manu Kovi. I set out here under the tariff for ease of reference.

SENTENCING TARIFF FOR MURDER OFFENCES

14. I now move on to consider whether the offence committed by the prisoner was of the worst type and whether the court should impose the maximum prescribed sentence i.e. life imprisonment. 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). Although I agree with the State's submission that this act of killing was uncalled for, unwarranted and cowardly and an innocent life tragically lost, I do not consider this murder any more vicious, callous and or gruesome under the circumstances it was carried out. I will refrain from imposing the maximum sentence.

15. Secondly, what than should the appropriate sentence be in this case? Having had the benefit of oral submissions 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. The death however was tragic and not warranted. I hold the view that besides the few mitigating factor favourable to you, your change of heart at the eleventh hour to change your plea to guilty must be accorded with some credence in my view. Your actions took everybody by surprise including your lawyer and your two co-accused.

16. Having recently joined the bench of the National Court and my limited experience, I am not aware of any comprehensive discussion in our case law why courts give discounts for guilty pleas and the measure of those discounts. Generally courts tend to lean towards leniency on pleas of guilty if they are timely. Some reasons advanced by courts include huge saving on courts time, savings on all sectors associated with mounting the trial, the avoidance of stress and trauma of victims giving evidence, especially in sexual offence cases. In the matter before me you have made a very big decision knowing that the maximum penalty in homicide cases is life imprisonment. Whatever it is that caused you to change your mind, I don't know but to my mind one thing is fairly clear: you showed evidence of remorse. I consider this as important. This came out very strongly in your pre sentence report in that the victim punched you first in your mouth and you retaliated in like manner. You walked away and he also walked away. His death half an hour later came as a shock and surprise to you as you only used your fist and no dangerous weapon was used.

17. Furthermore the crime was alleged to be committed by you and your two friends, yet to be tried, however you have come forward and admitted your guilt. My perusal of the court depositions reveal that your friends also took part in this crime. It follows that they should also be punished however as to what degree of culpability to be placed and the resultant sentence remains to be seen. I take judicial notice that two other persons were indicted on the same charge and are still at large on extended bail. Their fate remains to be decided by another National Court. To this end I am only left with whatever evidence/information together with your mitigating and aggravating factors to come up with a sentence most appropriate under the circumstances. I have noted your guilty plea and entered a conviction against you but based on the evidence before me I am of the view that you should not shoulder all the blame as others may have been involved. Again I must consider some discount in your favour.

18. Quite apart from whatever reasons which prompted you to commit that crime, the dreaded alcohol or beer has once again emerged its ugly head in this murder. This time it was brought upon by the victim himself as he was drunk at the time and went looking for a fight the second time, a case of de-facto provocation. He too must take some of the blame. Conversely you and your two friends acted cowardly by assaulting a drunk on the street, causing his death instead of preventing what first started as a call from a women for prevention or intervention and not a call for a crime to be committed, manifesting your intentions to cause grievous bodily harm. There is no evidence before me to show that, that woman was in distress or in grave danger.

Do I consider this murder serious and why?

19. First up is that you have denied the victim's four children of their father. Serious crime committed. The community is abhorred and now expects that you be punished harshly by incarceration.

20. Secondly although no dangerous weapon was used, save your fist as you stated in your allocutus, although not as lethal as a gun or an offensive weapon for instance a knife, once the blows from your first were used in a manner and nature resulting in very serious injuries, as has happened in this case, makes this case a more serious case of murder. Tougher sentence is therefore called for.

21. 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. In the case of John Elipa Kalabus v The State [1988] PNGLR 193, the former Chief Justice Sir Buri Kidu had this to say:

"There are various purposes of punishments and they include rehabilitation. But rehabilitation of a criminal must not be allowed to obscure the consideration of deterrence and protection of the public from the commission of crimes". (Emphasis mine)

I too, am more inclined with this thinking and adopt John Elipa Kalabus in this judgment.

22. The prisoner's family has paid more than K700.00 in cash as part of the overall compensation or "belkol" monies of more than K4500.00 to the victims' relatives. May I add here that an order for compensation is an additional form of punishment allowed by the Criminal Law (Compensation) Act 1991. The compensation paid is less than the maximum, K5, 000.00 allowed by the Act: nonetheless the seriousness of the crime, will not compensate the loss of a life hence it, is of little consequence because it will not affect the punishment in any substantial way. The payment of compensation cannot exonerate the prisoner; it can only mitigate his sentence. I have decided against making orders for extra compensation based on your Means Assessment Report. You and your relatives do not have the capacity to pay any form of monetary outlay. To do so would amount to further hardships. Your plea for probation is noted however your prior conviction and probation breaches must go against you. You introduced those prior convictions in your pre-sentence report and like any other matters courts use in your favour, like treatment must be given to matters contained in your pre sentence report which go against you. This I have done.

23. As I said earlier the maximum penalty for murder is imprisonment for life as prescribed by Section 300 (1) (a) of the Code. This is however subject to the sentencing discretion vested upon court by Section 19 of the Criminal Code. Might I add here that the art of sentencing is not a science but is loaded with the exercise of discretion? Your guilty plea and all mitigating factors favourable to you have been considered despite some discrepancies.

24. 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. Therefore not withstanding the aggravating circumstances which in my view have been cancelled out by your mitigating circumstances and in the exercise of my discretion the appropriate head sentence I will impose upon you is within the lower range of category 1 in the Manu Kovi sentencing tariff: 13 years. There will be a deduction of fifteen months from your sentence for the time spent whilst waiting for your trial.

25. I have decided against transferring you to Lorengau Correctional Service to serve out your sentence. There is no information before me from Correctional Service in Vanimo supporting your request for a transfer. One thing I do know with certainty is that Correctional Service Goal in Lorengau do not have the capacity to hold long term prisoners: those with goal terms beyond two years. Lorengau is within my circuit jurisdiction.

SENTENCE.

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