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State v Masida [2016] PGNC 63; N6246 (9 April 2016)

N6246

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1070 OF 2013

THE STATE

V

PAUL MASIDA

Waigani: Davani .J

2016: 07^{th, 9th} April

CRIMINAL LAW – sentence – prisoner charged for one count of murder – guilty plea – mitigating and aggravating factors – consideration of – sentence of 15 years imposed less time spent in pre – trial custody - Section 300 (1) (b) (i) of the Criminal Code Act

Counsel:

Mr D. Kuvi, for the State
Mr E.Yavisa, for the Prisoner

SENTENCE

9^th April, 2016

1. DAVANI,J: Paul Masida (the ‘Prisoner’) pleaded guilty to 1 count of murder, charge laid under Section 300 (1) (b) (i) of the Criminal Code. This provision reads;

“ S. 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 –

....

(b) if death was caused by means of an act

(b) done in the prosecution of an unlawful purpose; and

.....

Penalty: Subject to section 19, imprisonment for life”

FACTS
2. At the date of hearing, the Prisoner was aged 29 years. He comes from Kauseda, Buna in the Oro Province. He is single and attends CRC church. Prior to his arrest, he lived with his parents at the Bega settlement, Popondetta. His parents are retired public servants.

3. The offence occurred between 1 am to 2 am on 28^th January, 2003 when the Prisoner and others broke into Kamsi Trade Store, located at Bottom Town, Popondetta. The Prisoner acted as the watchman whilst his two accomplices broke into the store by cutting into the corrugated iron sheet walls. All 3 entered the shop together and found one Thomas Mek (‘deceased’) sleeping.

4. At that time, the Deceased then got up and went to the toilet. On his return, the Prisoner and his accomplices confronted him with a pinch bar and grabbed him. The prisoner and others held on to the Deceased, then one of them hit the Deceased using the back end of an axe, after which one of them stabbed the deceased with a knife. He died from that injury.

5. The Prisoner and his accomplices escaped empty handed. Although the Prisoner did not hit or stab the Deceased, the State has charged him with murder, invoking ss.7 and 8 of the Criminal Code.

ALLOCATUS

6. The Prisoner expressed remorse by apologizing to the court and everybody in the court room, including the court officials, for what he had done.

7. He told the court that whilst waiting for the trial, his only brother died leaving him as the sole surviving member of his family.

8. He asked the court for its mercy and to serve ‘liklik time’ by either being put on probation or good behaviour bond which would allow him, as he said, to “go outside” which I take to mean, to reintegrate into the community.

MITIGATING FACTORS

9. The prisoner does not have any prior convictions. His guilty plea also saved the court and the State a lot in the way of time and expenses.

AGGRAVATING FACTORS
10. The undisputed fact to which the Prisoner pleaded guilty to, that the Deceased’s death occurred whilst a robbery was perpetrated, is most serious indeed. And the fact that the Prisoner was in the company of others when the killing occurred, is also an aggravating factor, coupled with the fact that weapons were used by the Prisoner and his accomplices.

ANALYSIS OF SUBMISSIONS
11. Mr Kuvi submits that the courts are inundated with homicide offences and which offences are very prevalent in PNG and in the Oro Province more particularly.

12. Mr Kuvi relied on The State v Araua Gini (2003) N248, where the late Jalina J sentenced the prisoner, after a short trial, to 13 years. This was after he heard and considered evidence that the prisoner was a member of and part of a gang that held up a pmv bus on the magi highway.

13. Mr Kuvi submits that this and many other cases, despite increasing sentence with the emphasis on deterrence, has not deterred the commissioning of homicide related offences. And I agree with those submissions because the occurrence of these offences are many.
14. Mr Kuvi emphasises also that any mitigating factors pale into insignificance because the death resulted in the commissioning of another offence. He submits that a sentence of 15 years is appropriate under the circumstances.

15. Mr Yavisa on the other hand, submits that a sentence between 12 to 20 years is appropriate, falling within category 1 and 2 of Manu Kovi v The State (2004) SC 789.

16. I must say that on my reading of the case authorities where the trial court is urged to rely on Manu Kovi, that there has been disagreement by the Judges in relation to Manu Kovi being a reliable decision. Some examples are The State v Kiri Kirihau Harisu (2006) N3168; The State v Alphonse Aia Mohavila (2006) N3385; Simon Kama V The State (2004) SC740.

17. Mr Yavisa however, urges me to consider State v Wakore (2007) N3222 where, on a guilty plea to murder, the court sentenced the prisoner to a term of 12 years. The prisoner pleaded guilty to a charge of murder where the prisoner shot the deceased after a confrontation between 2 clans in a dispute over an alleged adultery.

18. Mr Yavisa submits further that relying on category 1 and 2 of Manu Kovi, that this court imposes a sentence between 12 to 16 years.

APPROPRIATE SENTENCE

19. I refer to Simon Kama and note these to be the tariffs prescribed therein;

a) on a guilty plea with aggravating factors: Sentence of 12 to 16 years;

b) on a guilty plea with aggravating factors, no firearms used and the commission of another serious crime: Sentence of 17- 30 years;

c) on a guilty plea with aggravating factors, used firearm, commission of or attempting to commit another offence: Sentence of 31years to life;

d) On a not guilty plea, no aggravating factors: Sentence 17 – 21 years;

e) On a not guilty plea, aggravating factors, no firearms, in the course of committing or attempting to commit another offence: Sentence of 22 to 40 years;

f) Not guilty plea, aggravating factors, use firearms or other dangerous weapons in the course of committing or attempting to commit another offence: Sentence of 41 years to life;

g) Not guilty plea, aggravating factors, use of firearms or other dangerous weapons in the course of committing or attempting to commit another offence: Sentence of 41 years to life.

20. I also note that the second category of Manu Kovi is that on a trial or plea, where there are no mitigating and aggravating factors and no strong intent to do grievous bodily harm, where weapons were used and there was some pre planning, including some element of viciousness, sentence of 16 to 20 years is proposed to be imposed.

21. The Prisoner in this case planned with his counterparts, to rob the Kamsi store. That was always their intention. The Deceased’s killing was not intended. However, it is a known fact that during the robbery of dwelling houses, where people are known to reside, bungled robberies are common where the criminals are interrupted in the act by the resident and often there are fatalities, as with this case.

22. The Prisoner was a willing participant, from the planning of the robbery, to the break in and the eventual killing of the Deceased. Even though he did not use the axe to hit the Deceased, he is deemed to be an active participant, by virtue of ss.7 and 8 of the Criminal Code.

23. However, these aggravating factors must be weighed and balanced against the fact that after about 2 years on remand, the Prisoner has finally decided, that he should plead guilty to the offence. And he is doing that, despite the fact that his co accused still insists on going to trial. CR 870/2014 Oala Gamol. Although the Prisoner asked to be placed on probation, it must be noted that this case is obviously not one suitable for probation. The sentence must be custodial in nature.

24. Under those circumstances, as this court is bound by the decisions of the Supreme Court, I will mete a sentence falling between the higher scale of the second category of Manu Kovi and the second category of Simon Kama, on the lower scale.

25. This court finds a sentence of 15 years to be appropriate under the circumstances. This sentence will be reduced by the time spent in custody on remand, to be confirmed by the Correctional Service, Biru, and which will be reflected on the Certificate of Conviction.
______________________________________________________________
Public Solicitors Office: Lawyer for the Prisoner
Public Solicitors Office: Lawyer for the State