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State v Kondo [2018] PGNC 369; N7483 (27 September 2018)

N7483

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1129 OF 2017

THE STATE

V

KEVIN KONDO

Kimbe: Miviri AJ
2018: 24 August, 27 September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – plea – first offender – deceased own blood brother – dispute over oil palm block – unarmed victim – repeatedly cut with bush knife – massive blood loss – unnecessary loss of life – PSR MAR ordered – no alternative to imprisonment – sanctity of life – life not comparable nor compatible with property – strong punitive deterrent sentence.

Facts

Prisoner repeatedly cut up his elder blood brother over dispute to oil palm block causing massive blood loss leading to death.

Held

Plea
First offender
Serious defiance of law
Unnecessary loss of life
Sanctity of life.
Strong punitive deterrent sentence

Cases Cited:

The State v Lopai [1988-89] PNGLR 48
The State v Kovi [2005] PGSC 34; SC789
The State v Malala [2018] PGNC 310; N7414
The State v Lucas Kup [2018] N7477
The State v Nimagi [2004] PGSC 31; SC741
The State v Apo [1988-89] PNGLR 182
The State v Tavari [2014] PGNC 79; N5619
The State v Rurua [2014] PGNC 78; N5617
The State v JB [2007] PGNC 66; N3224
The State v Kutetoa [2005] PGNC 137; N2814
Independent State of Papua New Guinea v J.K. [2012] PGNC348; N4748
The State v Yali [2006] PGNC 26; N2989
The State v Tumu Luna (2002) N2205

Counsel:

A. Bray, for the State
E. Yavisa, for the Defendant

SENTENCE

27^th September, 2018

1. MIVIRI AJ: This is the sentence upon Kevin Kondo of Visikum, Wasara, East Sepik Province; who repeatedly cut up his blood brother Bob Kondo over an oil palm block 1613 at Galai 2 section 20. Bob Kondo had harvested and the prisoner was looking for him. On the 6^th April 2012 he confronted him armed with a bush knife. He cut both his hands and legs causing massive blood loss leading to death. He had intended to cause Grievous Bodily Harm but death ensued.
   

Charge section 300 CCA Murder

2. The charge was pursuant to Section 300 (1) (a) of the Criminal Code reading:
   
   • (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.

3. Murder is the next most serious charge of homicide after wilful Murder set out by the legislature the will of the people through parliament. Together with Manslaughter the maximum penalty is the same of life year’s imprisonment. But in law there is an intention to cause grievous bodily harm which is a breach of the law from which murder unfolds. In manslaughter there is unlawful killing or an assault that leads to the death: State v Lopai [1988-89] PNGLR 48 (21 February 1989). There is no intention to cause grievous bodily harm. It is therefore less serious. In each case it is my view that the sentences must correlate and not be analogous: Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) places the present set of facts and circumstance at category three - 20 to 30 years imprisonment because there is viciousness in the attack, a weapon is used (a bush knife), a strong intent to do grievous bodily harm because the offender repeatedly cut up his blood brother unarmed all over his limbs. It cannot be category two on these facts as contended by defence counsel.
   
4. Oil Palm will grow back up again and replenish fruits cut and harvested by the deceased for the prisoner to meet his needs and wants. By the same Bob Kondo will not return from the cuts that he has suffered at the hands of the prisoner. From 1^st to 9^th April 2012 a full week and two days there was no resolution or understanding, both brothers wanted one to harvest before the other. Each arguing armed that they had commitments so would not wait for the other. There was no respect or brotherly love shown. It appeared that missing out in one harvest to give life to another never crossed the mind of the prisoner.
   
5. Life can never be equated with property whether it is oil palm as here or any other. Because life is lived only once. And the Constitution gives effect to this fact under section 35 Right to Life a basic right. The words are specific that to intentionally take life is outlawed even if it is for the situations set out by section 35 (1) (b) of that section. Kevin Kondo is without any defences in law for the death of Bob Kondo. Recently in State v Malala [2018] PGNC 310; N7414 (16 August 2018) the court imposed life imprisonment upon the prisoners for mercilessly killing the deceased over the deceased hitting their canoe brutally cutting him up all over his four limbs so that he suffered and died a brutal death. In State v Lucas Kup [2018] N7477 this court imposed 10 years IHL for intent to cause grievous bodily harm and causing grievous bodily harm where the victim’s wrist was amputated together with his foot over oil palm block and harvest thereof by victim. Again this is yet greed and prominence over property. Property is not on par nor can it ever be on par in any way or form with the life of a human from the basis set out above. This consistency in the range is clear where death arises in the course of an armed robbery where the appellants are charged with murder as in Nimagi v The State [2004] PGSC 31; SC741 (1 April 2004) the 50 years imposed by the National Court was confirmed. That was a trial here is a plea.
   
6. The description given by witnesses immediately at the scene at the time evidenced it was between 3.00 and 4.00 pm. The deceased came and saw Prisoner and asked him, the bush knife that you are carrying with you all the time do you want to kill me with it. And Prisoner immediately reacted swinging it aimed at his left leg cutting it, then the left arm and then the right arm and the fourth was aimed at the neck when yelled at by the by standers and witnesses stopping him. It was a determined persisted attack upon his immediate blood brother in full view of the public at a public frequented area. It did not dawn upon him that others also within that area could be injured in what he did. Or that there would be retaliation for the action that he committed. Or that the brother was unarmed and defenceless. This identical to Manu Kovi (supra).
   
7. Life is cheap by the demonstration executed by the prisoner whether immediate or not it did not matter to him. What appeared to be paramount was the oil palm block 1613 at Galai 2 section 20, not the life of a fellow human being even if it was his blood brother. It would appear that sentences that have been imposed by this court for murder and homicide has not deterred at all. The offence is very prevalent and continues to spiral into the privacy of families as here. Killing of a family member crumbles the family unit as basic of society. A stable family will give effective meaning to a community a province and country. It would therefore be defeating the purpose and intent of the law if sentences did not reflect that fact.
   
8. Apo v The State [1988-89] PNGLR 182 (15 September 1988) was a manslaughter case prisoner reacted to the deceased knocking him down with a knife stabbing him in retaliation. Matter arose over drunkenness. The facts and circumstances are inapplicable; the charge is Manslaughter not murder. The argument that the loss of his brother is a sentence unto itself upon him cannot hold in view of the facts of the case. Prisoner deliberately cut the big brother repeatedly without any emotion at all. There is no mitigation but aggravation of the offence against him. Further State v Tavari [2014] PGNC 79; N5619 (20 May 2014) is inapplicable prisoner here is not under any spell or magic. He is well fully versed in his mental capabilities and body uninfluenced by any drug or mental condition meting what he does to the deceased. He will bear total responsibility in the sentence upon him. State v Rurua [2014] PGNC 78; N5617 (20 May 2014) was voluntary consumption of alcohol and drugs that drew out what the prisoner did to his small brother who was sleeping after terrorizing his parents and the other elder sibling. Respect for the family must come from within the heart. And it will not be a factor diminishing responsibility in law and the sentence due will not be watered down by that fact. The facts of that case are distinguished from the present and do not apply.
   
9. In my view death within the family by criminal conduct from within by one of the family member is not a light matter nor will it ever be a light matter. Particularly where there is no heed paid of that fact and where there is persistence in the criminal conduct as here leading to death. It is serious and that is clear when viewed in the sexual penetration cases where relationship is pleaded as circumstances of aggravation: State v JB [2007] PGNC 66; N3224 (20 September 2007); State v Kutetoa [2005] PGNC 137; N2814 (22 March 2005); Independent State of Papua New Guinea v J.K. [2012] PGNC348; N4748 (26 July 2012) and State v Yali [2006] PGNC 26; N2989 (19 January 2006) sections 229A, 347 CCA. Because a family is the cornerstone of society, from it comes the community the province and the nation. Its protection by law is therefore significant in any sentence that the court passes as is the case here upon the prisoner of the murder of his big (blood) brother. There is consistency in the application of the law one is not drawn without.
   

Allocutus

10. “I have three children and an oil palm block there is no one to look after it. Also I will be the only one who will look after my deceased brother’s wife and children. I apologise to my family and my brother’s family for what I have done including the court. Thank you”
    

PSR MAR reports

11. He pleaded for the welfare of his children, of the deceased wife leaving their children and remarrying. These were matters in his realm he chose over and above to commit the crime and they will be aggravating features more than mitigating. The presentence and means assessment reports do not favour a non-custodial sentence on condition of payment of compensation. The subject block Galai 2 section 20 is family owned neither the deceased nor the prisoner have sole legitimate rights over it. Income derived from sale of the oil palm was the primary cause leading to the death. The deceased and prisoner are two of the seven children of that family who also had rights to the property. Three are deceased and four alive. As a natural flow of crime the wife and three children of the prisoner have been displaced their home set on fire immediately after the death. They are now resident with her parents. Income derived from the subject block was in the vicinity of K2, 500 to K3000.00 a month sustaining prisoner’s wife and children. Prisoner is of the Seventh day Adventist but is not observant of call to sustain morality. Wife of deceased Dora Bob Kendo confirms three cuts inflicted by the prisoner on the deceased a climax over argument over the subject block. She has now remarried sustaining her life there. No compensation has been paid despite her request up to the date of sentence. To accede on the eve of sentence to the prisoner’s plea is not real to settle but to avoid jail term.
    

Antecedents

12. Prisoner is 32 years old from Wisikum village, Wasara East Sepik Province. He has no record of any formal education or employment. He has indicated positively to look after the three children of the deceased. This is not confirmed by the mother of the children. It is not realistic without any other facts to back up to verify. The children have been denied the love of their father and to see him as they grow up no gratitude to their uncle his small brother prisoner. Blood and being an immediate relative did not deter the killing. Far too many killings have erupted out of family circles over disputes as is the present that can be easily solved. The courts must protect life and the family the basic unit of society.
    
13. Life will not be replenished by the payment of compensation. And its payment must not be court dictated or prompted after a presentence and a means assessment report. It ought to be and must come from the heart of goodness and love to restore relationship and to live for the better. That has not been demonstrated here in the presentence and means assessment reports presented. It will not be considerate to impose a term other than what is due of a custodial term. There are no bases properly set out by both reports to consider alternatives to imprisonment.
    

Aggravation

14. Once again it was an unnecessary loss of life grievously over dispute of oil palm harvesting. The bush knife is not a tool but a weapon readily available to cause serious life threatening injuries including death. Resorting to extreme violence must be stopped. Offenders with propensity to violence as here must be shown that the Courts will not tolerate such behaviour. Stern deterrent and punitive sentences will be forthcoming on those who so defy as here. Disputes must be settled through peaceful and lawful means such as through the churches, the village courts, peace mediation and elders in the community. Self- help as here resorting to using a bush knife upon own blood and kin is not called for.
    
15. Rather than walk away from what was being mouthed off by his brother he retaliated with a bush knife that he was holding at that time. It would appear that he was prepared for what the brother was going to say to him. Or that he expected turmoil from the matter. He did not heed what his wife said to walk away and leave him. The big brother was unarmed at that time.
    
16. Pleading guilty shows remorse or contrition and depends upon the time and circumstances in which it is advanced. The earlier the expression of remorse or contrition after the commission of the offence the more favourable it will be for the accused. Remorse and contrition expressed at the trial weighs very lightly. It is easier to believe remorse expressed earlier than remorse expressed at the time of the trial, especially in serious cases like this one: State v Tumu Luna (2002) N2205. Benefit will be accorded to take account in the sentence.
    
17. Medical certificate of death dated the 20^th April 2012 under hand of Doctor Peter Yama shows condition leading directly to death as, (a) Cardiac Arrest; (b) Haemorrhagic shock; (c) multiple knife wounds. And the report on Post Mortem Examination shows, (1) deep knife wound posterior aspect of left calf of foot; (2) a big knife wound on left elbow; (c) a knife wound on right wrist. The report independently confirms the extent of injuries and the suffering that Bob Kondo endured before he died. It is clear that he suffered before he eventually succumbed to the injuries that were inflicted. The extent of these injuries shows the intent of the prisoner to grievously injure Bob Kondo. And his sentence will echoe.
    
18. This Court will do its duty to ensure supremacy of the Constitution the right to life under section 35. And this is not in isolation:
    

“The Supreme Court, in appropriate cases, must now review those precedents with the view of setting new principles on sentencing to fit violent crimes, and with the greatest respect to the Courts which decided those cases then, the circumstances have changed dramatically that violent crimes nowadays know no boundary, and in homicide cases, offenders armed with dangerous weapons do not stop to think whether they should or should not kill another person. In relation to Ure Hane (supra), the Parliament has already legislated the different types of homicide by classifying them into manslaughter, murder and wilful murder. In our view, it serves no purpose when Courts start to classify these killings by degree and classes and say one is more serious than the other. When we do this we forget the values of lives that have been prematurely terminated. The notion of sanctity of life and constitutional protection of lives therefore become meaningless and mere judicial rhetoric. Nimagi v The State (supra).

19. In my view this is squarely applicable to the facts of the present case. There would be no error to accede to. That where violence is extreme and out of proportion to the situation and circumstance posed before so reacting the sentence must reflect what the legislature has called for upon the prisoner. And here I determine that to be 25 years IHL for murder. And I so impose that upon the prisoner.
    
20. The sentence is 25 years IHL. Time in custody is deducted forthwith. He will spend the balance in jail.
    

Ordered Accordingly,

__________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant