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State v Riau [2018] PGNC 188; N7280 (6 June 2018)

N7280

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 617 OF 2016

THE STATE

V

ISIDOR RIAU

Kimbe: Miviri AJ
2018 : 8 May,4, 5 & 6 June

CRIMINAL LAW - Plea-Murder- S300 CCA - stabbed deceased with Bamboo – drunk - injury to neck - intent to cause grievous bodily harm - first time offender - youthful offender - compensation paid-strong punitive sentence.

Facts

Prisoner stabbed deceased in the neck with a bamboo intending to cause him grievous bodily harm but he died from the bleeding.

Held:

1. The value of life and sanctity of life under the Constitution must be protected by strong and punitive sentences in all homicide cases.
2. Guilty plea loses its significance if aggravation outweighs.
3. Prevalence of offence.
4. 20 years IHL less time spent in custody deducted.
   

Cases Cited:

The State v Enn [2004] SC738
The State v Java [2002] PGSC 17; SC701
The State v Harisu [2006] PGNC 137; N3168
The State v Mohavila [2006] PGNC 106; N3385
The State v Manu Kovi [2005] PGSC 789
The State v Mangi [2006] PGSC 30; SC880
The State v Nimagi [2004] PGSC 31; SC741

Counsel:

P. Bannister, for the State
R. Bellie, for Defendant

DECISION ON SENTENCE
06^th June, 2018

1. MIVIRI AJ: Isidor Riau is charged, that he on the 25^th December 2015 at Mosa, stabbed one Sylvester Hawai with a sharp bamboo in the neck intending to cause him grievous bodily harm and he died, contrary to Section 300 (1) (a) Criminal Code.
   

Brief Facts on Arraignment

2. The defendant with the deceased were all together drinking alcohol on the 25^th December 2015 in the course of which an argument developed and a fight ensued. It subsided and started again between other persons there. Deceased was watching this when the prisoner ran up to him with a sharp bamboo and speared him penetrating and cutting his neck. He bled heavily from it and died despite being taken to the Kimbe General hospital. He was charged with murder pursuant to Section 300 of the Code.
   
3. Which is in the following terms:
   
   • (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:–
     
     • (a) if the offender intended to do grievous bodily harm to the person killed or to some other person;
       
     • (b) if death was caused by means of an act–
       

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

(ii) of such a nature as to be likely to endanger human life;

(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–

(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or

(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);

(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);

(e) if death was caused by wilfully stopping the breath of a person for a purpose specified in Paragraph (c).

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) In a case to which Subsection (1) (b) applies, it is immaterial that the offender did not intend to hurt any person.

(4) In a case to which Subsection (1) (c), (d) or (e) applies, it is immaterial that the offender–

(a) did not intend to cause death; or

(b) did not know that death was likely to result.
Plea

4. Prisoner pleaded guilty confirmed by the material tendered. There was no self-defence or provocation asserted by the prisoner. Defence did not raise nor pursue.
   

Issue

5. What is an appropriate sentence for the prisoner?
   
6. Parliament has prescribed under Section 300 (1) (a) of the Criminal Code the maximum of life years as penalty, which is subject to section 19 of the Code the exercise of which is discretionary. It is depended on the facts and circumstances of each particular case. The present case is not the worst case of its kind and will draw a determinate term of year’s imprisonment.
   

Mitigation

7. In so determining I take due regard of the allocutus of the prisoner where he has apologised for his wrong and expressed sincere remorse. In my view this is strong mitigation in his favour. He has not only pleaded guilty but has expressed sincere remorse genuine intent to take responsibility for his actions.
8. In his favour too I take due regard of the presentence report tendered before me in consideration of an appropriate sentence. This report confirms prisoner is 25 years old at time of sentence and 23 years old at time of the offence. He is from Mosa village, Talasea, Kimbe, West New Britain Province. He is a first offender coming from a family of nine other siblings. And is educated to grade 12 in 2008 at the Kimbe Secondary School and has up skilled to Diploma in Marketing. He was employed for a while with Colgate Palmolive in Lae Morobe Province in 2013 but left employment there due to his father’s illness.
   
9. In the presentence and means assessment reports payment of compensation has been made of K5000 in cash receipt confirmed by father of the deceased. Including shell money Rea valued at K100, two live pigs valued each at K 800 and K 1000, cost of the coffin at K800, store goods, garden food and firewood to the total cost of K1500. And that this took place on 2^nd January 2016 witnessed by village councillor Paul Rova. The total amount of money given is K9200.
   
10. Prisoner is a follower of the Roman Catholic Church and is a good person maintaining good relationship with people in his community up to the time of the offence. The father of the deceased has accepted that the deceased son will not come back to life and therefore asks that time in jail is imposed. The prisoner has pleaded guilty on the morning of trial effectively saving time and resources in the administration of Justice consistent with his record of interview initially.
    

Aggravation

11. Once again abuse of alcohol has claimed the life of another young man unnecessarily. No amount of compensation will bring that life back ever. It is a serious offence though may have been on the spur of the moment considering that he was effected by alcohol. He pulled out the sharp bamboo that was there and threw it at the deceased causing the offence. Which is not an excuse over the loss of life because the deceased had not prompted the offence. The neck is a venerable part of the body and death eventuated from that injury. Deceased was 29 years old and still had a long life ahead. Prisoner was 23 years old at time of offence.
    
12. There is no preparedness as in Manu Kovi v The State [2005] PGSC 789 where the prisoner had bought a brand new short bush knife, got on a bus and followed his wife the deceased to the Islander section of Waigani road. He got off the bus that he was in and got in the bus where his wife was. Inside he stabbed her repeatedly in view of all who were in the bus until he was stopped, but by then his wife was losing blood and died as a result. That is not the case here. This was a drunken brawl that was reignited after initial leading to the death. The weapon used was there, picked up and used by the prisoner with deadly result attained.
    
13. Counsel have conceded in accordance with Manu Kovi (supra) that the case fell into the top end of the second category of murder cases in that, there was strong intent to do grievous bodily harm, and weapon was used here a bamboo; though there was no preplanning, but some element of viciousness drawing 16 to 20 years IHL. Further prisoner had pleaded but a human life cannot be replaced. And compensation paid was reconciliation and not for the replacement of the life that was lost.
    
14. Life is sacred and its sanctity derives from principles of Christianity enshrined in our Constitution recognizing Papua New Guinea as a Christian country one of the fundamental rights under which is the right to life under section 35. The offence is also a very prevalent offence not only here in Kimbe West New Britain Province but all throughout the country. Human life has become cheap.
    
15. There was no reason for the attack upon the deceased disclosed in the evidence tendered. The deceased was not attacking nor had he provoked the attack in any way.
    
16. The medical certificate of death dated the 25^th December 2015 under hand of Doctor Lawrence Warangi Surgeon showed, “slashed throat.”
    
17. This shows out the reality of section 35 of the Constitution the right to life in everyday life whereas here a young child of the deceased is deprived of a parent through no fault of his or hers. And the grandparents are deprived of their son at the prime of his life at 29 years of age. They both say they are tormented at the loss of their son. The sentence here must bring some comfort for their torment. It will not bring back the deceased but must reflect sanctity of life and observance of the rule of law and deter and punish this very prevalent offence.
    

Sentencing trend tariff

18. I now consider what the courts have had to impose following Manu Kovi and the general sentencing trend and tariff in Java v The State [2002] PGSC 17; SC701. There, the appellant was sentenced to 20 years IHL for the murder of the deceased who had destroyed the food garden of the applicant. When the applicant was told by his wife, he armed himself with a grass knife and went looking for the deceased. He spotted the deceased who ran at the sight of the applicant. He pursued and caught him, cutting him several times from which he bled to his death. He pleaded guilty and the court sentenced him to 20 years IHL. The review was dismissed and the sentence of 20 years was confirmed.
    
19. In Mangi v State [2006] PGSC 30; SC880, the prisoner appealed to the supreme court on a sentence of 35 years imposed by the National court where it convicted upon circumstantial evidence that pointed to the appellant who had in the course of the fight with the deceased hugged him in a bear hug and both fell to the ground. The deceased was stabbed in the chest and died as a result. There were no eye witnesses. On appeal the Supreme Court considered the case of Manu Kovi (supra) remarking that;
    

“According to the Manu Kovi case, in a murder case, where no weapon was used, where there was little or no pre-planning, where minimum force was used, where there was absence of strong intent to do GBH, a sentence of 12 to 15 years is recommended.

(a) However, where there was no strong intention to do GBH but a weapon was used, there were some pre-planning, and where there were some element of pre-planning, a sentence between 16 and 20 years is recommended.

(b) The next category is for serious murder cases. Where the murder was pre-planned, where the attack was vicious, where there was strong desire to do GBH, where dangerous weapons like guns or axes were used, and, where other offences of violence were committed, a sentence of 20 to 30 years is fixed.

(c) This court is not bound by Manu Kovi v The State but we are unable to find any reason to depart from it. The court will follow the sentencing guidelines in the Manu Kovi case also for the sake of consistency.

(d) When the appellant’s case is considered in the light of the guidelines and the facts in the Manu Kovi case, where 25 years was imposed for a much more serious murder, the sentence of 35 years in the appellant’s case is considered excessive. The trial Judge has, therefore, made an identifiable error on sentence.”

Here the court reduced the 35 years sentence to 16 years IHL viewing that a knife was used but there was no preplanning, two drunken men fighting leading to the death.

20. In State v Harisu [2006] PGNC 137; N3168, a sentence of 22 years was imposed where the defendant had gone to shake hands with the deceased who had killed his father. Deceased refused and said like I killed your father, I will do the same to you. The deceased then got an axe and charged at the defendant and both struggled and fell to the ground where the defendant came up with the axe and cut the deceased on the knee and then secondly from his face down to his jaw area. He was charged with murder and pleaded guilty to the charge. After considering Manu Kovi the court passed sentence as above under the third category.
    
21. In Nimagi v State [2004] PGSC 31; SC741, the prisoner appealed against a 50-year sentence that was imposed by the National Court sitting in Bulolo where in the course of a holdup a teacher was shot dead as he tried to rescue his daughter who was taken away by the defendant and others who accompanied him. The court convicted after trial and imposed 50 years IHL. The defendant appealed from that sentence to the Supreme Court. The court dismissed the appeal holding that too much emphasis was placed on youthfulness which should not be guised to sway the full affront of the sentencing discretion. The court adopted the words of the trial judge:
    

"I believe that young criminals cannot continue to hide behind the cloak of youthfulness in order to get away with very serious violent crimes. I do not, for one moment, say that youth is no longer a mitigating factor, because it still is. However, in a very serious violent crime such as this one, the plea of youthfulness would lose its significance."

22. That is clearly applicable here where counsel defending has urged discount on the basis that the prisoner is a youthful offender. He is 23 years old and therefore not youthful as a 15, 16, or 17 year old would be, even then that is swept aside by the gravity of the offence that he has committed. It is a violent crime inflicted without mercy upon the deceased it was persistently executed with precision and deadly effect to the neck depicted by the medical report. It was effected without decency and regard for human life. I adopt the words of the court there as applying here against the plea of the prisoner and hold that his youth does not mitigate as the aggravation outweighs his plea.
    
23. In State v Mohavila [2006] PGNC 106; N3385, the defendant with his father and others approached the deceased and asked him as to the death of a relative over sorcery allegedly by the deceased. An argument ensued in the course of which the defendant cut the deceased on his left hand. He retaliated and cut the defendant on his left side of his head then he retreated behind another and dropped the bush knife which the defendant picked up and cut the deceased twice on the deceased forehead from which he bled to his death. The court imposed the maximum penalty of life years IHL.
    
24. In Enn v The State [2004] PGSC 36; SC738 on the morning of 17^th June 2000, the appellant left his village for Togel village to attend a reconciliation meeting with the aim to resolve an outstanding dispute. In the course of that meeting, the victim, Mathew Wamina and Margaret Daka had an argument and they then fought. Thomas Gend, one of their clansmen stopped the two from fighting. After they were stopped, the deceased walked back to where he was, to sit down. The appellant armed with a long bush knife walked up behind the deceased and struck the deceased with the bush knife on the left side of the neck. The impact of the knife blow was such that, the head was totally severed from the body.
    
25. The medical report made on the deceased on 30^th May that same year showed that the deceased sustained a severed neck from a sharp object applied with great force. Upon arraignment the appellant pleaded guilty and was sentenced to 20 years imprisonment. Appeal against sentence was dismissed confirming the sentence of 20 years IHL.
    

Sentence

26. The present offence arises from voluntary intoxication which cannot be an excuse in the way that prisoner acted but the sentence imposed must fit the gravity of your crime. Like offence must be treated alike. In this regard I do not find any fact or circumstance apparent or identifiable to differentiate the sentence of the prisoner from any other, some of which I have attempted to illustrate above. Further there are no extenuating circumstances to deviate from others that what is the normal tariff and range in like circumstances. Aggravation outweighs mitigation and the guilty plea will not sway otherwise than the sentence here proportioned of 20 years IHL. And I so impose that upon the prisoner. I deduct the time in custody and he will serve the balance remaining forthwith.
    
27. Twenty (20) years IHL less time in custody, balance to be served in Jail.
    

Orders accordingly,
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitors : Lawyer for the Defendant