N6151
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 741 OF 2014

THE STATE

V

MATHEW LEWARIPA

Madang: Cannings J
2015: 22 July, 10 December

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offender killed his wife by hitting her with stick and stabbing her – victim offered no provocation and entirely innocent – sentence of life imprisonment.

The offender was convicted after trial of wilful murder. He killed the deceased, his wife, by hitting her repeatedly with a shade tree stick and stabbing her several times on her back with a sharp object. The deceased offered no provocation. She was entirely innocent. This is the judgment on sentence.

Held:

(1)	The starting point for sentencing for this sort of wilful murder (trial, special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence – brutal killing, killing of defenceless, harmless person – offensive weapon used) is life imprisonment.

(2)	Mitigating factors: spontaneous incident, not premeditated, no prior conviction, cooperated with Police.

(3)	Aggravating factors: use of lethal weapon, brutal killing, killing of defenceless, harmless, entirely innocent person.

(4)	The mitigating factors are not sufficiently strong to warrant departure from the starting point. The sentence imposed was imprisonment for life.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
The State v Chris Baurek CR 146/2009, 26.05.10
The State v Isak Wapsi (2009) N3695
The State v Joel Otariv (2011) N4409
The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591
The State v Mark Bongede (2012) N4683
The State v Mathew Lewaripa (2015) N5595
The State v Mathew Misek (2012) N4561
The State v Moses Nasres (2008) N3302
The State v Seth Ujan Talil (2010) N4159
The State v Tun Mai Isaac (2014) N5684

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel

M Pil, for the State
A Meten, for the offender

10th December, 2015

1. CANNINGS J: This is a decision on sentence for Mathew Lewaripa who was convicted after trial of the wilful murder of his wife, Almera Anamkai, at Suatapro village, Usino Bundi District, Madang Province, on Tuesday 25 February 2014. He directly killed the deceased by hitting her repeatedly with a shade tree stick and stabbing her several times on the back with a sharp object. The offender and the deceased were both aged 25 years at the time of the offence. The deceased died due to severe loss of blood caused by multiple stab wounds. She was four months pregnant at the time. Her baby did not survive. Further details of the circumstances of the offence are in the judgment on verdict, The State v Mathew Lewaripa (2015) N5595.

The offender escaped from custody during the course of the trial and the verdict was handed down in his absence. Submissions on sentence have also been made in his absence.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. There was no allocutus as the offender absented himself from the Court.

PRE-SENTENCE REPORT

4. There was no pre-sentence report as the offender absented himself from the Court.

SUBMISSIONS BY DEFENCE COUNSEL

5. Mrs Meten acknowledged that though it was a serious case there are mitigating factors: it was a spontaneous incident, the offender has no prior convictions and he cooperated with the Police. These factors bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, and make the appropriate sentence 20 to 30 years imprisonment.

SUBMISSIONS BY THE STATE

6. Mr Pil did not agree that this was a category 2 case according to the Kovi guidelines. Although it was not a pre-mediated killing, which means that the death penalty may not be appropriate, the very serious aggravating factors are that it was a very brutal killing, manifesting a strong desire to kill. A death in these circumstances warrants a sentence of life imprisonment.

DECISION MAKING PROCESS

7. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?
•	step 2: what is a proper starting point?
•	step 3: what sentences have been imposed for similar offences?
•	step 4: what should the head sentence be?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should any part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

8. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1) (aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided … a person liable to death may be sentenced to imprisonment for life or for any shorter term.

STEP 2: WHAT IS A PROPER STARTING POINT?

9. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J and Lay J) and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J and Davani J).

The Ume guidelines

10. In Ume the Supreme Court suggested that a number of different scenarios may warrant the death penalty, eg (1) killing of a child, a young or old person, or a person under some disability needing protection; (2) killing of a person in authority or responsibility in the community providing invaluable community service killed in the course of carrying out their duties or for reasons to do with the performance of their duties; (3) killing of a leader in government or the community, for political reasons; (4) killing of a person in the course of committing other crimes; (5) killing for hire; (6) killing of two or more persons in a single act or series of acts; (7) killing by a prisoner in detention or custody serving a sentence for another serious offence of violence; (8) if the offender has prior conviction(s) for murder.

The Kovi guidelines

11. In Kovi the Supreme Court suggested that wilful murder convictions could be put in four categories of increasing seriousness, as shown in the following table.

TABLE 1: SENTENCING GUIDELINES FOR WILFUL MURDER DERIVED FROM THE SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff	
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-mediation or pre-planning – minimum force used – absence of strong intent to kill.	15-20 years	
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill.	20-30 years	
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill.	Life imprisonment	
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	[No details provided]	Death 	

Applying the guidelines

12. Under the Ume guidelines, the case is not one of the eight types that the Supreme Court suggested would warrant the death penalty. As for the Kovi guidelines I accept the submission of the State that this is a category 3 case: the conviction followed a trial, there are special aggravating factors, the mitigating factors are reduced in weight or rendered insignificant by gravity of offence, it was a brutal killing of a defenceless, harmless person, an offensive weapon was used. Therefore the starting point is life imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR SIMILAR OFFENCES?

13. I have sentenced offenders for wilful murder in eight recent cases, which are summarised in the following table.

SENTENCES FOR WILFUL MURDER, 2008-2014

No	Case	Details	Sentence	
1	The State v Moses Nasres (2008) N3302, Kimbe	Trial – the offender lay in waiting for the deceased as he walked along a track in a squatter settlement – as the deceased walked past, the offender emerged from behind some flowers and pushed an iron rod though the deceased's head, killing him instantly.	Life imprisonment
	
2	The State v Isak Wapsi (2009) N3695, Madang	Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – the deceased was working at a fermentery and the offender approached him without warning or provocation and cut his legs with a bushknife, severing the right leg and inflicting significant damage to the left leg.	25 years
	
3	The State v Chris Baurek CR 146/2009, 26.05.10, Madang	Guilty plea – offender killed a fellow villager who he claimed was a sorcerer – he joined with two others in chasing the deceased and attacking him on his back with bushknives – mitigating factors included that the offender, though fit to plead, had mental and physical health issues, he also made very early admissions of guilt.	20 years	
4	The State v Seth Ujan Talil (2010) N4159, Madang	Trial – offender sentenced for two offences of wilful murder committed at a mediation gathering – not proven that the offender directly killed either of the deceased but he was convicted under both Sections 7(1)(b) and 8 of the Criminal Code as he was involved in a violent group attack and aided others in wilfully committing the murders and the offences were committed during the course of prosecuting an unlawful purpose in conjunction with others.	30 years
	
5	The State v Joel Otariv (2011) N4409, Madang	Guilty plea – while the deceased, an elderly woman, was bathing in a river, the offender approached her and raped her, then struck her over the head with a rock, then deliberately pushed her head into the water and drowned her.	Life imprisonment
	
6	The State v Mathew Misek (2012) N4561, Kimbe	Guilty plea – the offender killed his wife by cutting her on the head with a bushknife, causing instant death – immediately prior to the attack the offender had an argument with her father over payment of bride price – a vicious and barbaric killing, there was a strong desire to kill.	Life imprisonment
	
7	The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591, Madang	Trial – four offenders were convicted after a joint trial of the wilful murder of a man committed during a fight between two groups of people – the sentences reflected their varying degrees of involvement.	30 years,
20 years,
20 years,
17 years
	
8	The State v Mark Bongede (2012) N4683, Madang	Trial – the offender was in his village, entertaining a visiting dignitary – the deceased and his friends were drunk and being a nuisance – the offender became frustrated and angry, fought with them and then attacked the deceased with a bushknife, inflicting multiple wounds.	24 years
	
9	The State v Tun Mai Isaac (2014) N5684, Madang 	Trial – the offender killed the deceased by stabbing him in the back during an altercation that took place in the late afternoon after a soccer grand final – deceased offered no provocation – he was trying to stop the fight and was entirely innocent.	Life imprisonment

STEP 4: WHAT IS THE HEAD SENTENCE?

14. I will now assess the mitigating and aggravating features of the case.

Mitigating factors

These are:

•	it was a spontaneous incident, not premeditated;
•	no prior conviction;
•	the offender cooperated with the Police when he was arrested.

Aggravating factors

These are:

•	use of a lethal weapon;
•	brutal killing involving repeated beating and stabbing;
•	killing of defenceless, harmless, entirely innocent person;
•	this was a case of extreme domestic violence.

Determination

15. The mitigating factors are not sufficiently strong to warrant departure from the starting point, and there is no evidence of reconciliation with the deceased's relatives. The circumstances of the case are comparable to those in Nasres, Otariv, Misek and Isaac, where the offenders showed no regard for the sanctity of human life and no mercy for their victims. The appropriate sentence is imprisonment for life.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

16. As the offender is sentenced to life imprisonment, and he has escaped from custody while on remand for this matter, no deduction for the pre-sentence period he spent in custody prior to his escape will be made.

STEP 6: SHOULD ANY PART OF THE HEAD SENTENCE BE SUSPENDED?

17. No. The offender has been sentenced to life imprisonment and there is no pre-sentence report before the Court.

SENTENCE

18. Mathew Lewaripa, having been convicted of one count of wilful murder under Section 299(1) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	Life imprisonment	
Pre-sentence period in custody deducted	Nil	
Resultant length of sentence to be served	Life imprisonment	
Amount of sentence suspended	Nil	
Time to be served in custody	Life imprisonment	
Place of custody	Beon Correctional Institution	

Sentenced accordingly,
______________________________________________________________

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