N7340
    
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1045 OF 2017
CR NO. 1046 OF 2017

THE STATE

V

WILLIE GIDEON & SONY YAURI

Lae:	Numapo AJ
2018:	19, 23 April, 4 May & 3 July

CRIMINAL LAW – Particular Offence – Murder – Guilty Plea –Sentencing Guidelines – Aggravating & Mitigating factors and circumstances – Prevalence of the offence – Sentencing trend in Murder cases –Non- custodial sentence - Sentencing Discretion – Sections 300 & 19 of Criminal Code.

Held:

(i)	An appropriate sentence is determined from the factual circumstances of the case being; the aggravating factors and circumstances, the mitigating factors and extenuating circumstances.

(ii)	Sentencing guidelines like the Manu Kovi Guidelines merely serve as a guide, it does not take away the sentencing discretion of the sentencing authority.

(iii)	Non-custodial sentence is rarely given in Murder cases. 

(iv)	Compensation is not a significant mitigating factor to warrant a suspended sentence. 

(v)	High prevalence of Murder cases calls for stiffer penalties.

(vi)	Prisoners sentenced to 18 years imprisonment each.

Cases Cited:

Lawrence Simbe v The State [1984] PNGLR 38
Manu Kovi v The State (2005) SC 789
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
State v Marai [2017] PGNC 67; N6693 (20 March 2017)
The State v Christine Mui, CR. No 384 of 2007
The State v Jackson (2006) N3237
The State v Matai (2011) N4256
The State v Michael Gend CR. No. 760/2011 – 17th February, 2014.
The State v Yapson Spoky, CR No. 436 of 2012

Counsel:

J. Done, for the State
S. Katurowe, for the Defence

SENTENCE
3rd July, 2018

1.    NUMAPO AJ: This is a decision on sentence. Accused persons Willie Gideon and Sony Yauri both pleaded guilty to one count of Murder contrary to section 300 (1) (a) of the Criminal Code and were convicted accordingly.

A.	FACTS

2.   The facts are that; on the 01st of April, 2017 between 3pm and 4pm the accused persons Willie Gideon and Sony Yauri were at Water Supply Compound in Bulolo. Willie Gideon was under the influence of liquor at that time. He walked along the road and met Kelly Vincent, Mark Yarakawa, Saun Tony and the deceased Wapi Samson. Accused Willie Gideon asked Kelly Vincent for some money. Kelly refused to give him money and the accused swore at him. Kelly punched the accused and kicked him and he fell to the ground. The accused got up and ran away. 

3.   A few minutes later, the accused Willie Gideon returned with co-accused Sony Yauri. Both charged towards Kelly Vincent and his three friends. Willie Gideon was armed with some stones and threw them at Kelly Vincent. Sony Yauri had a knife in his possession and ran towards the deceased Wapi Samson and stabbed him on his left chest. The deceased collapsed and died at the scene. Both accused persons then fled towards the Bulolo River.

B.	CHARGE

4.   The prisoners were charged with one count of Murder under section 300 (1) (a) of the Criminal Code. The provision reads:

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:-

(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person;

Penalty: Subject to Section 19, imprisonment for life.

C.	SENTENCING GUIDELINES

5.   Both the State and the Defence submitted that in determining the appropriate sentence the Court should be guided by sentencing guidelines on Murder set out in the famous case of Manu Kovi v The State (2005) SC 789 (herein after referred to as the Manu Kovi Guidelines). I set out the guidelines below:

CATEGORY	MURDER	
Category 1 	12 – 15 years	
Plea
Ordinary cases
Mitigating factors with no aggravating factors	No weapons used – Little or no pre-planning
Minimum force used
Absence of strong intent to do GBH.	
Category 2	16 – 20 years	
Trial or Plea
Mitigating factors with aggravating factors	No strong intent to do GBH
Weapons used
Some pre-planning
Some element of viciousness.	
Category 3	20 – 30 years	
Trial or Plea
Special Aggravating factors
Mitigating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned. Vicious attack
Strong desire to do GBH
Dangerous or offensive weapons used e.g. gun or axe
Other offences of violence committed.	
Category 4 	Life Imprisonment	
Worst Case – Trial or Plea
Special aggravating factors
No extenuating circumstances
No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	Pre-meditated attack
Brutal killing, in cold blood
Killing of innocent, harmless person
Killing in the course of committing another serious offence
Complete disregard for human life.	

D.	ALLOCUTUS

6.   In his allocutus, prisoner Sony Yauri told the court the following:

“Your Honour, I say sorry to this court and also to the family of the deceased. I also say sorry for breaking the laws of this country. I ask the court to have mercy on me and be lenient. That is all.

7.   Prisoner Willie Gideon said:

“Your Honour, I say sorry to God for the crime that I committed and also for breaking the laws of this country. I also apologize to the court and the government lawyers for taking up your time with this case. 

Your Honour, I also say sorry to the family of the victim. This is my first time in court and I ask the court to have mercy on me and give me a suspended sentence and put me on probation. I have high respect for the court and ask the court for leniency. Thank you, your Honour.”

E.	APPROPRIATE SENTENCE

8.   What should be the appropriate sentence for this case is determined from the factual circumstances of the case, being the aggravating factors and circumstances, the mitigating factors and extenuating circumstances. I consider them as follows:

(a)	Aggravating factors and circumstances

(i)	An offensive weapon (kitchen knife) was used in the attack.

(ii)	Deceased was stabbed in the most vulnerable part of his body to wit, the left chest.

(iii)	There was an intent to do GBH.

(iv)	There were some elements of viciousness.

(v)	The offence was alcohol-related.

(vi)	A young life was prematurely terminated.

(vii)	The whole incident was started by the prisoners when they demanded money from the deceased and his friends which resulted in a fight that eventually led to the death of the deceased.

(b)	Mitigating factors
(c)	

(i)	Both prisoners pleaded guilty early.

(ii)	Both are first time offenders.

(iii)	Both expressed remorse and apologized for what they did.

(iv)	Compensation of K10, 000 was paid to the relatives of the deceased within one week of the incident.

(v)	Prisoner Willie Gideon sustained a head injury during the incident that affected his mental capacity and is now suffering from a speech impairment. (special mitigating factor).

9.   Other considerations such as gravity of the offence and the prevalence of the offence are also taken into account in deciding the appropriate sentence. 

(d)	Gravity of the Offence

10.   The gravity of the offence is determined from the peculiar sets of facts and circumstances of the case itself. See Lawrence Simbe v The State [1984] PNGLR 38. 

11.   In the present case, an offensive weapon namely, a kitchen knife was used in the attack. The deceased died instantly from a single stab wound to his left chest. The post mortem report revealed the following:

(i)	A 3cm x 2cm stab wound on the left of the chest, 4cm below the left collar bone and is 13cm deep.

(ii)	Collapsed left lung.

(iii)	Left haemopneumothorax.

(iv)	Amputated right finger.

(e)	Prevalence of the Offence

12.  Homicide cases are becoming too prevalent in recent times especially in Morobe Province. The court must impose heavier penalties against those who take away another person’s life to serve as a deterrence to the offenders themselves and other would-be offenders that the court will not be lenient with those who commit such offence. Therefore, any sentence imposed must have a deterrent effect. Human life is most precious and valuable and those who terminate a life of another person must be adequately punished. The Supreme Court clearly expressed this view in Manu Kovi v The State (supra) in the following words:

“The sanctity and value of human life is far more precious and valuable than anything else and no amount of remorse or compensation will restore life lost. The unlawful taking of another person’s life is a serious and horrendous crime which must be adequately punished. The courts have re-iterated this basic and fundamental principles in many cases.” 

F.	SENTENCING TREND ON MURDER

13.   Both Counsels cited some case precedence on sentencing in Murder cases in their respective submissions which I found to be very useful. It provides helpful guides for the court to impose an appropriate sentence based on the current trend to ensure consistency in sentencing in similar cases. I refer to some of them below: 

1.	State v Marai [2017] PGNC 67; N6693 (20 March 2017)

14.   The circumstances of the case is somewhat similar to the present case. In this case, the prisoner, a juvenile went out with his friends. They were armed with bush knives and a homemade shotgun. They followed a bush track and met the deceased and his friends. The deceased had some money. They set on the deceased and his friends and attacked them. The deceased suffered knife wounds to his hands and legs and was shot at the back. He died from the injuries sustained.
 
Upon a guilty plea, the prisoner was sentenced to 20 years. 

2.	The State v Yapson Spoky, CR No. 436 of 2012

15.   The offender pleaded guilty to one count of murder. He cut the deceased on his head and thigh after the deceased raped his niece. The background of the case is that the deceased has a history of insulting the Prisoner’s family. On the first occasion, he attempted to rape the Prisoner’s niece and she ran away naked. Despite the village court order for him to pay compensation he again assaulted the victim while she was alone and raped her. When she refused, he stabbed her with a knife. She ran away bleeding. Upon seeing that, the offender took his axe and chased the deceased.  When he finally caught up with him, there was a struggle between them.  The offender overpowered the deceased and cut him on the back of his head with the axe and further cut him on the thigh. 
The offender paid compensation before his arrest and committed to the National Court. The court imposed 18 years less the pre-sentence custody period.

3.	The State v Matai (2011) N4256

16.   The offender pleaded guilty to one count of Murder of his brother-in-law. The facts are that the offender inflicted serious injuries on the deceased on his neck, head and other parts of the body. The offender submitted there was de facto provocation, in that the deceased who was married to the offender’s sister did not take responsibility to look after her and their children. On many occasions, the deceased’s wife would go to the offender to assist her in looking after the children. Furthermore, the deceased had extra-marital affair and got a woman pregnant with his child. On the day of the incident, the offender went to his coconut garden and found the deceased and his children picking coconuts. When he confronted the deceased, he took out his knife and wanted to fight with the offender. The offender then attacked him and inflicted serious injuries to his body which resulted in his death. The court accepted that in mitigation as the offender had the benefit of doubt. 

17.  The court held that the case came under category (3) of the Manu Kovi Guidelines, attracting a sentence between 20-30 years. After considering all the relevant factors, the court imposed the head sentence of 22 years. The court deducted the pre-sentence custody period of 1 year and 11 months leaving the balance of 20 years and 1 month. None of the sentence was suspended.

4.	The State v Jackson (2206) N3237

18.   The offender pleaded guilty to murder of a deceased whom he suspected of killing his father through sorcery. On the day of the incident, the offender and his friend armed themselves with long bush knives and went to the deceased’s house. It was very early in the morning and they were still asleep. When they finally woke up, the offender and his friend came out of their hiding place and attacked the deceased who was holding his grandchild. The offender inflicted two knife wounds to the deceased’s neck. He fell down motionless and they escaped. The court imposed 24 years with none of the sentence being suspended.

5.	The State v Christine Omui, Cr No 384 of 2007

19.   The prisoner stabbed the deceased with a knife following an argument. The deceased was pregnant when she was stabbed. There was a de facto provocation in that the deceased mocked the prisoner that she was old and cannot find a husband. 

The prisoner pleaded guilty and sentenced to 16 years imprisonment.

6.	The State v Michael Gend Cr. No. 760/2011. 17th February, 2014

20.  The prisoner pleaded guilty to murder under section 300 (1) (a) of the Criminal Code and was sentenced to 25 years less pre-trial period of 3 years and 2 months leaving the balance of 21 years and 9 months to serve in prison.

21.   The offender and his wife were having an argument that started at the market place.  The offender was armed with a knife and stabbed his wife at her back and around the genital and abdomen area. They reached their house and the deceased fell to the ground and died due to loss of blood from injuries she sustained. She received multiple injuries to her body. She was taken to the hospital but was pronounced dead on arrival. She was 4 months pregnant at the time.

G.	PRESENT CASE

22.   In the present case, an offensive weapon was used in the attack. There was an intent to do GBH. The gravity of the attack was serious and there were some elements of viciousness. The deceased was stabbed in the most vulnerable part of his body, the left chest that caused his instant death. The deceased collapsed and died at the scene of the crime from that single fatal stab wound. The offence was committed whilst the prisoners were under the influence of alcohol. There was no provocation. An innocent life was lost for no apparent reason at all. There are no extenuating circumstances.

23.  A young life with a promising future ahead of him was terminated prematurely. It was a tragic death. Terminating a person’s life under such circumstances calls for a long custodial sentence. Those who commit the offence must be punished appropriately.  The intention of the legislature is made clear when it prescribed life imprisonment for Murder. 

24.  In the Pre-Sentence Report the community leaders considered the two prisoners as no longer a threat to the community and therefore, suggested that they be given non-custodial sentences. Also that a sum of K10, 000 has already been paid as compensation to the relatives of the deceased within the same week of the incident and both parties have made peace. The father of the deceased Samson Kambira stated that he wants the court to give prisoner Willie Gideon a suspended sentence and prisoner Sony Yauri a custodial sentence because Sony Yauri was the one who stabbed his late son. He said he had come to terms with the loss of his son and had generally forgiven the prisoners and has no hard feelings against them. He is particularly concerned that prisoner Willie Gideon might not get the chance to complete his education even though his son never lived to complete his education. This is rather an unusual request from a bereaving father who has just lost a son in such tragic circumstances. 

25.   Section 19 (6) of the Criminal Code provides for suspended sentence that can be given at the discretion of the court. The grounds under which suspended sentence is given is discussed in the Supreme Court case of Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91. In that case the Supreme Court sets out three (3) broad categories on suspended sentence. The categories are not exhaustive and are follows:

(i)	Where suspension will promote personal deterrence, reformation or rehabilitation of the offender.

(ii)	Where suspension will promote repayment or restitution of stolen money or goods; and

(iii)	Where imprisonment would cause an excessive degree of suffering to a particular offender, for example because of his bad physical or mental health.

26.  The court has always held the view that no amount of compensation or remorse can bring back a life. A non-custodial sentence is rarely given in Murder cases. And this is reflected in some of the case laws cited above where even though offenders expressed remorse and compensation has been paid the courts were reluctant to give suspended sentence and I intend to do the same in this case. Compensation is not a significant mitigating factor to warrant a suspended sentence.

27.  Both prisoners are in their early 20’s and are not considered youthful offenders. Prisoner Willie Gideon was the main instigator of this incident that ended tragically in the death of the deceased. Whilst I appreciate the community’s sympathy towards the prisoners, I am also mindful of the fact that imposing a non-custodial sentence will undermine the seriousness of the offence and do injustice to the case. It also sends a wrong message to the public that people with money can pay their way out to avoid imprisonment.

28.    I note from the court file that the prisoner Willie Gideon suffered from some mental conditions that affected his speech. I am not too sure if that is true as he spoke very well when he addressed the court in his allocutus. In fact, he spoke longer than the other prisoner. There is no report from a Psychiatrist to confirm his state of mind. There is also another medical report on file apparently from the same Health Extension Officer stating that prisoner Willie Gideon also suffers from painful urination and swelling of the testicles. There were no other report from a qualified medical officer to substantiate those medical conditions and also I am not able to ascertain from the Police Briefs or the Cell Admission Records if these were pre-existing medical conditions prior to his arrest and therefore, I am reluctant to accept the medical reports.

29.   All in all, I am not convinced that there are exceptional circumstances and/or grounds for me to consider invoking my sentencing discretions under section 19 (6) of the Criminal Code to suspend the sentence either in full or part thereof for the two prisoners. Furthermore, the grounds advanced by the Defence seeking suspended sentence does not, in my view, fall into any of the three categories set out in Public Prosecutor v William Bruce Tardrew (supra). Accordingly, no suspended sentence is given. 

H.	HEAD SENTENCE

30.   Having considered the factual circumstances of the case as well as the gravity of the offence, I am of the view that this case falls under Category 2 of the Manu Kovi Sentencing Guidelines. It therefore, attracts sentences ranging from 16 – 20 years imprisonment. 

I.	ORDERS

31.   I make the following Orders:

(i)	I Sentence prisoners Willie Gideon and Sonny Yauri to 18 years imprisonment each.

(ii)	I deduct 1 year and 2 months from the head sentence for prisoner Willie Gideon for the pre-trial custody period. Prisoner Willie Gideon is to serve the balance of 16 years and 10 months imprisonment.

(iii)	Prisoner Sony Yauri escaped from custody and was re-captured recently and there is no record of his pre-trial custody period. By reason of his escape from custody he is not entitled to any discounted sentence. Prisoner Sony Yauri is to serve his full term of 18 years imprisonment.

(iv)	No suspended sentence given.

Orders Accordingly,

Public Prosecutor:	  Lawyers for the State
Public Solicitor:  	  Lawyers for the Applicant