N6267
PAPUA NEW GUINEA
 [IN THE NATIONAL COURT OF JUSTICE]

CR NO 151 OF 2014

THE STATE

V

LUTHER FRANCIS MELO

Madang: Cannings J
2015:11th December
 		2016:18th March 

Ramu: 
2016:   14th & 19th April 

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offender killed his wife by strangling and stabbing her – victim offered no provocation and entirely innocent. 

Facts:

The offender was convicted after trial of the wilful murder of his wife. He killed her by strangling and stabbing her. The incident occurred on a public road in the early hours of the morning as the deceased was on her way to work. The deceased offered no provocation. There was no apparent motive for the attack. 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: no prior conviction, good community record, high degree of co-operation with the Police, the Correctional Service and the Court.

(3)	Aggravating factors: use of lethal weapon, brutal killing, multiple stab wounds, indicating a ferocious attack, killing of defenceless, harmless, entirely innocent person.

(4)	The mitigating factors warrant departure from the starting point, and though there is no evidence of reconciliation with the deceased’s relatives, the offender’s high degree of cooperation with the Court and the Police and the Correctional Service warrant a lesser sentence. The sentence imposed was 30 years imprisonment.

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 Luther Francis Melo (2015) N6153
The State v Mark Bongede (2012) N4683
The State v Mathew Lewaripa (2015) N6151
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) N5595

Legislation 
Criminal Code 

SENTENCE

This was a judgment on sentence for wilful murder.

Counsel

F K Popeu, for the State
J Morog, for the offender

19th April, 2016

1.	CANNINGS J:  This is the decision on sentence for Luther Francis Melo who was convicted after trial of the wilful murder of his wife, Roslyn Patrick Luther. The offence was committed at Drai Wara, near Ramu town, Madang Province, on Friday 9 August 2013.

2.	The offender killed the deceased by strangling and stabbing her. The incident occurred on a public road in the early hours of the morning as the deceased was walking to work with another woman. The deceased offered no provocation. There was no apparent motive for the attack. There was no lawful justification or excuse for the offender’s killing of the deceased and he was found to have acted with the intention of causing her death. Hence, the conviction for wilful murder. Further details of the circumstances of the offence are in the judgment on verdict, The State v Luther Francis Melo (2015) N6153.

ANTECEDENTS

3.	The offender has no prior convictions.

ALLOCUTUS

4.	The offender made the following address to the court:

I did not commit this killing. I am feeling very sad for the family of my wife. I do not know how she died. I have a lot of respect for the law of this country and the Courts. I bear no grudges against anyone. I ask for the mercy of the court and to be put on probation so that I can go back to the village and resolve this matter customarily. I would like my family and my wife’s family to reconcile. I thank the Judge and the Court staff for dealing with my case. 

PRE-SENTENCE REPORT

5.	Luther Francis Melo is 27 years old. His parents are alive. He has seven siblings. He is from the Ialibu District of Southern Highlands Province. His wife, the deceased, was from Margarima. They married in 2011 and moved to Ramu. They were both working for Ramu Agri Industries Ltd at the time of the offence. They had no children. The offender has a grade 8 education. His health is sound. He has no bad community record. No contact has been made with the deceased’s relatives. 

SUBMISSIONS BY DEFENCE COUNSEL

6.	Mr Morog submitted that there are substantial mitigating factors – the offender has no prior convictions, he has cooperated with the Court, he has made a genuine plea for mercy so that he can settle the matter in the village, he has expressed remorse – which 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 no more than 20 to 25 years imprisonment.

SUBMISSIONS BY THE STATE

7.	Mr Popeu did not agree that this was a category 2 case according to the Kovi guidelines. The offender ambushed his wife as she was walking along the road and this suggests that it was not a spontaneous incident and a degree of planning was involved. The very serious aggravating factors are that the deceased was entirely innocent and it was a brutal killing. A death in these circumstances warrants a sentence of life imprisonment.

DECISION MAKING PROCESS

8.	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?

9.	The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has 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?

10.	I will apply the sentencing guidelines for wilful murder given by the Supreme Court in the two leading cases: Manu Kovi v The State (2005) SC789 and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836.

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 	

The Ume guidelines

12.	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.

Applying the guidelines

13.	Under the Kovi guidelines I reject the defence counsel’s submission that this is a category 2 case and uphold 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 the gravity of offence, it was a brutal killing of a defenceless, harmless person, an offensive weapon was used. 

14.	Under the Ume guidelines, the case is not one of the eight types that the Supreme Court suggested would warrant the death penalty. Therefore the starting point is life imprisonment.

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

15.	I have sentenced offenders for wilful murder in ten recent cases, summarised in the following table.

SENTENCES FOR WILFUL MURDER, 2008-2015

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 bush knife, 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 bush-knives – 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 bush knife, 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.	20 years,
20 years,
30 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 bush knife, 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
	
10	The State v Mathew Lewaripa 
(2015) N6151, Madang 	Trial – the offender killed 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 – offender escaped from custody during course of trial. 	Life imprisonment

STEP 4: WHAT IS THE HEAD SENTENCE?

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

Mitigating factors

•	The offender has no prior convictions.
•	He has no bad community record.
•	He has shown a high degree of co-operation with the Police, the Correctional Service and the Court.

17.	In allocutus, the offender expressed sorrow for the death of his wife but maintained, as per his evidence at the trial, that he did not kill her. He accepts no responsibility for her death. In these circumstances I reject the defence counsel’s submission that the offender’s expression of remorse should be regarded as a mitigating factor. 

Aggravating factors

•	Use of a lethal weapon.
•	Multiple stab wounds, indicating a ferocious attack.
•	Killing of defenceless, harmless, entirely innocent person.
18.	I reject the State’s submission that this should be regarded as a premeditated killing as the State, at the trial, was unable to establish a motive for the offender’s actions. 

Consideration

19.	Though there is no evidence of reconciliation with the deceased’s relatives, and no acceptance by the offender of personal responsibility for the death of his wife, I consider that the offender’s high level of cooperation with the Police, the Correctional Service and the Court is a weighty mitigating factor that in the circumstances of this case warrant departure from the starting point of life imprisonment. Furthermore, I consider that this is a less serious case than Nasres, Otariv and Misek, all of which resulted in terms of life imprisonment. I fix the head sentence as 30 years imprisonment.

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

20.	Yes, all of the period will be deducted, which is 2 years, 8 months, 1 week, 3 days. 

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

21.	No. There is no information as to the attitude of the deceased’s relatives. There is no evidence of any reconciliation with them. There is nothing in the pre-sentence report to warrant even a partially suspended sentence. 

SENTENCE

22.	Luther Francis Melo, 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	30 years	
Pre-sentence period in custody 	2 years, 8 months, 1 week, 3 days	
Resultant length of sentence to be served	27 years, 3 months, 2 weeks, 4 days	
Amount of sentence suspended	Nil	
Time to be served in custody	27 years, 3 months, 2 weeks, 4 days	
Place of custody	Beon Correctional Institution	

Sentenced accordingly.
__________________________________________________________________
Public Prosecutor	: Lawyer for the State			
Public Solicitor 	: Lawyer for the offender