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State v Kari [2015] PGNC 123; N6017 (15 May 2015)

N6017

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 449 & 450 OF 2011

THE STATE

-V-

KINGSFORD KARI & CLIVE DUGUMARI

Wewak: Geita J
2015: April 22, May 15

CRIMINAL LAW – Sentence after trial – Wilful Murder – Group attack – Deceased assaulted and stabbed at the back of his head with a knife, penetrating through his lungs- Deceased died as a result – Prisoners elected to remain silent - Section 299 (1) Criminal Code.
CRIMINAL LAW- Sentence - Section 7 invoked – Group acted in concert with intention –Probation and good behaviour bond orders considered inappropriate - exemplary deterrence sentence of 25 years imposed - Section 299 (1) Criminal Code..

CASES CITED

Goli Golu 1979 and John Kalabus 1988 PNGLR 193
Kovi v The State [2005] PGSC 34; SC 789

Counsel:
Paul Tusais with Sabine Dusava assisting, for the State.
Johnson Malambaul, for the prisoners

JUDGMENT ON SENTENCE

15 May, 2015

1. GEITA J: The prisoners have been found guilty after trial on one count of wilful murder contrary to s. 299 (1) of the Criminal Code Act. The thrust of States indictment is based on section 7 of the Criminal Code. This offence attracts a maximum penalty of life imprisonment however Section 19 (1) (a) (b) of the Criminal Code gives courts powers to impose a lesser sentence.

BRIEF FACTS

2. For purposes of completeness I have detailed the facts as found during trial and conviction on 10 May 2013. The facts reveal that on the evening of 19 February 2011 the prisoners in concert murdered Anton Kulot at Wewak Sea View Hotel. The prisoners went to the Sea View Hotel under the guise of rescuing their sister who was married to Harvey Gitora, a hotel guest at the time. Six men were alleged to be involved in this murder with the two prisoners pointed at as the principal offenders, hence the invocation of section 7 Criminal Code by The State. The deceased died due to massive loss of blood resulting from punching and stabbing with a knife on the base of his neck penetrating his lung.

ANTECEDENTS

3. No prior convictions were recorded against their names.

ALLOCATUS

4. Upon administering the allocutus pursuant to section 593 of the Criminal Code, the prisoners spoke separately:

AGGRAVATING FACTORS

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

1. Death occurred;
2. Mob attack involving 6 persons;
3. High degree of force used;
4. Venerable part of human body, head and lung attacked.
   

MITIGATING FACTORS

6. The mitigating factors include:

1. No prior convictions

2. First time offenders

3. Compensation in cash and kind valued at K17, 000 paid

SUBMISSIONS ON SENTENCE – THE PRISONERS

7. Mr Johnson Malambaul for the prisoners argued that a prison sentence of 20 years to be appropriate as there was no pre planning and invited court to consider their respective allocutus in sentencing. In his oral submissions he referred me to the case of Manu Kovi v The State (2005) N 789 and advanced that this case falls within category 2 and 3. He conceded that although there was some pre planning they were mere allegations and those should not be used against his clients. They were first time offenders with families and have paid a sizeable compensation to the deceased's relatives.

SUBMISSIONS ON SENTENCE - THE STATE

8. The State Prosecutor Mr. Paul Tusais submitted that the upper range of category 3 sentencing tariff in Manu Kovi case (supra) of 25 - 30 years to be considered in light of the seriousness and gravity of the murder. He advanced that a dangerous weapon was used to inflict the injuries to the deceased's neck and body. The prisoners pleaded not guilty and were found guilty after trail. The killing resulted due to a mob attack. The prisoners acted together in the killing. Mr Tusais acknowledged the unfortunate situation the prisoners found themselves in. They responded to their in-law who appeared to be in distress due to his own making and now find themselves being charged for wilful murder. He submitted that the sanctity and protection of a human life was paramount and those who violate it must be punished as no amount of monetary compensation will equate the loss of a life. Mr Tusais submitted that this was a case of an innocent man being killed in the prime of his life by a group of man who had responded to calls by an irresponsible man, their in-law. Such irresponsible killings were prevalent and courts urged to impose deterrence sentences.

9. In support of his arguments he referred the court to two earlier cases and urged court to consider them in light of parity and consistency in sentencing. The two cases include:

APPLICATION TO THIS CASE

10. Both counsels have correctly referred the court to the applicable sentences available under the sentencing tariffs in the case of Manu Kovi (supra). I will be guided by those tariffs. I also remind myself that that the maximum punishments are best left for the worst types of cases. (Goli Golu [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193. Although this act of killing was uncalled for and cowardly, I do not consider it to be of the worst category and will not apply that sanction.

11. Instead a longer exemplary deterrence sentence in my view would be appropriate under the circumstances. I also accept and adopt the range of sentences in the two cases referred to me and use them here as a guide. I have had the benefit of submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoners. I need not restate them here again. I take note of your pleas in allocutus and your concerns for your family members and children. Your mitigating factors are grossly out weighted by the aggravating factors. Furthermore, your pleas for leniency founded on the huge amount of compensation paid to the deceased's relatives (K17, 000.00) remain disputed. A pre sentence report ordered by court upon application to verify the exact amount of money compensation said to be paid by both your family's shows that your actual contribution is less than K2000 in cash and kind. Be that it may court have always maintained that no amount of monetary compensation paid in criminal cases will remove the criminal responsibility of perpetrators. Your pleas for the welfare of your families are also noted however you have yourselves to blame for your families sufferings. As responsible mature adults you did not stop to question whether what you were about to do would land you in trouble. You did not do that.

12. After the benefit which I have had on the cases presented before me and the most helpful arguments for and against, I have come to the conclusion that the appropriate sentence to be imposed upon you is in the upper range of Category 3 in the Manu Kovi sentencing tariff. There was pre planning, the killing was vicious, weapons used with a strong desire to kill. Any reductions in sentence and probation orders considered inappropriate in this case.

SENTENCE

13. You are each sentenced to 25 years in hard labour. A warrant of your commitment will be issued forthwith. Any existing bail still available to you both to be returned to you each and severally.

Ordered accordingly

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