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State v Kumine [2018] PGNC 416; N7532 (19 October 2018)

N7532

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 175 OF 2018

THE STATE

V

NANCY KUMINE

Lae: Numapo AJ
2018: 23^rd August, 20^th & 28^th Sept, 19^th October

CRIMINAL LAW – Particular offence – Murder – Guilty Plea – Sentencing Guidelines on Murder - Appropriate Sentence - Sentencing Discretion – Aggravating & Mitigating factors – Extenuating circumstances – Sections 300 & 19 of Criminal Code.

Held:

(i) The appropriate sentence for murder where no offensive weapon was used and little or no pre-planning was involved should be at the lower end of the sentencing scale on murder.

(ii) Court is not restricted by the sentencing tariffs set out in the ‘Manu Kovi Guidelines’ as it has a wider sentencing discretion under section 19 of the Criminal Code.

(iii) The present case does not fall under the worst type offence category and therefore cannot attract the prescribed maximum penalty.

(iv) Sentence imposed by the Court must reflect the purposes of sentencing such as deterrence, rehabilitation, restitution and retribution.

(v) Factors such as the gravity of the offence, the prevalence of the particular offence, aggravating and mitigating factors, and extenuating circumstances are all taken into account in deciding the appropriate sentence.

(vi) Prisoner sentenced to 12 years less the pre-trial custody period.

(vii) No suspended sentence.

Cases Cited:

Anna Max Maringi v The State (2002) SC 702
Goli Gaul v The State [1979] PNGLR 653
Kumbamong v The State [2008] PGSC 51; SC1017
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC 789
Simon Kama v The State (2004) SC 740
State v Silingo Abitena and Others CR Nos. 972 – 975 of 2017 N7290
The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501
The State v Iori Veraga (2005) N2921
The State v Jackson (2006) N3237
The State v Christine Omui Cr. No. 384 of 2007
The State v Michael Gend Cr, No. 760/2011
Ume v The State (2006) SC 836

Counsel:

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

SENTENCE

19^th October, 2018

1. NUMAPO AJ: This is a sentence on Murder. The accused NANCY KUMINE pleaded guilty to one count of Murder contrary to Section 300 (1) (a) of the Criminal Code and was convicted accordingly.
   
   1. BRIEF FACTS
      
2. The facts to which the prisoner pleaded guilty to were that; on the 11^th of September 2017 at around 6:30am the prisoner was on her way to work when she saw the deceased at Lae Biscuit bus stop at Limki Settlement. She picked up a piece of wood and hit the deceased several times on her head and body. The deceased sustained serious injuries and received medical assistance on that day. The next day on the 12^th of September 2017 she collapsed and was rushed to Angau General Hospital where she later died. The prisoner intended to cause grievous bodily harm to the deceased.
   
   2. APPROPRIATE SENTENCE
      
3. Maximum penalties are prescribed for each of the offences under the Criminal Code to assist the Court in deciding the appropriate sentence between the lower and the upper end of the sentencing scale. It is trite law however, that the maximum penalty is reserved for the worst type case. See Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No 3) [1982] PNGLR 92.
   
4. Each case is determined by its own peculiar facts and circumstances being the aggravating and mitigating factors, the extenuating circumstances and the gravity of the offence itself. The prevalence of the particular offence is also a consideration that is taken into account. All these have to be properly weighed up and balanced out in deciding the appropriate sentence. See: The State v Iori Veraga (2005) N2921.
   
   100. SENTENCING GUIDELINES
        
5. Both the State and the Defence submitted that in determining the appropriate sentence the Court should be guided by the sentencing tariffs 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’). The guidelines are set out here below:
   

6. I should add that the Manu Kovi Guidelines were developed as a result of an earlier decision of the Supreme Court in Anna Max Maringi v The State (2002) SC 702 following concerns that Manslaughter sentences have surpassed the tariff on Murder sentence hence the need to review and set new tariffs on Murder sentences to render consistency with Manslaughter sentences. The Court called for a review in the following terms:
   

“.....whilst it is clear to us that sentences for manslaughter have increased significantly over the years, the same cannot be said of murder sentences. It seems to us that manslaughter sentences have surpassed the tariff for murder cases set out in the often quoted decision of The State v Laura (No.2) [1988-89] PNGLR 319 and other cases such as Lawrence Simbe v The State [1994] PNGLR 402. Therefore, there is a need now for the Supreme Court to develop new tariffs for murder sentences to render consistency with manslaughter sentences. As this case is concerned with manslaughter, we leave that task for the Supreme Court on another occasion, in an appropriate case.”

4. SENTENCING TREND ON MURDER
   

7. A number of case laws were cited by both the State and the Defence in their respective submissions on sentence to show the current trend on sentencing in Murder cases and submitted that the Court is guided by them. The sentencing tariffs of Manu Kovi Guidelines were reflected in many of these case laws. I find them very useful and referred to them below:
   
1. State v Pinapang [2017] PGNC 16; N6616
   
8. The offender pleaded guilty to killing his adopted mother. He had an argument with her and cut her neck with a bush knife. She died instantly from wound inflicted on her. The offender was sentenced to 21 years.
   
2. The State v Silingo Abitena & Ors, CR Nos. 972, 973 & 975 of 2017
   
9. The offenders pleaded guilty to one count of Murder. They attacked the Deceased with bushknives and axes. The Deceased died from the injuries inflicted on his body. The offenders were sentenced to 18 years, 12 years and 15 years respectively.
   
3. The State v Bonsu (No.2) [2014] PGNC 312; N5571
   
10. The prisoner was found guilty on one count of Murder. At Ambunti Station in East Sepik Province, the prisoner hit the Deceased with a 4x2 piece of timber on the Deceased’s head and neck killing him instantly. He was sentenced to 20 years.
    
4. The State v Jackson (2206) N3237
   

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
   
11. 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.
    
12. The Prisoner pleaded guilty and sentenced to 16 years imprisonment.
    
13. The State v Michael Gend Cr. No. 760/2011. 17^th February, 2014
    
13. 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.
    
14. 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.
    
15. The State v Sony Yauri and Willie Gideon CR. No. 1045 & 1046 of 2017
    
15. The offenders pleaded guilty to one count of Murder. They stabbed the Deceased with a knife on his left chest. Both were sentenced to 18 years imprisonment.
    
16. The State v James Peter Kenneth CR. No. 381 of 2017
    
16. The Prisoner pleaded guilty to killing his wife by stabbing her twice on her chest and twice on her abdomen. He was sentenced to 18 years imprisonment.
    
    5. PRESENT CASE
       
17. In the present case, Ms Aihi for the State submitted that the aggravating factors outweigh the mitigating factors hence an imprisonment term of eighteen (18) to twenty (20) years is appropriate. The prisoner assaulted the deceased who at the time was unarmed and unaware of the attack and not prepared to defend herself. It was an unprovoked surprise attack. It was a cowardly attack of a violent nature with some elements of viciousness. There was a strong intention of the part of the prisoner to cause grievous bodily harm to the victim. The deceased died a day later from her injuries and would have suffered tremendously from it. A weapon in a form of piece of wood was used to attack the deceased and this revealed the prisoner’s intention to cause serious injuries to the deceased that led to her demise. The prevalence of the offence itself calls for a stiff penalty to serve as a deterrence both for the prisoner herself and other would-be offenders.
    
18. Ms Katurowe for the Defence submitted that the present case borders between Manslaughter and Murder. It is not a worst type offence to attract a maximum sentence and urged the Court to adopt the approach taken in Goli Golu (supra). The case falls mid-way between categories 1 and 2 of the Manu Kovi Guidelines and the starting point therefore is between 12 -15 years’ imprisonment. Counsel pointed out that the Court is not bound by the sentencing tariffs set out in the Manu Kovi as it has a wider sentencing discretion under section 19 of the Criminal Code to even consider a lesser sentence below the recommended tariffs. This was the view held in Kumbamong v The State [2008] PGSC 51; SC1017 where the Supreme Court held that the setting of sentencing range was an illegal restriction on a trial judge’s discretion.
    
19. I expressed the similar views in the case of State v Silingo Abitena and Others CR Nos. 972 – 975 of 2017 N7290 that sentencing guidelines or tariffs only provides as a guide and does not in any way, shape or form, take away or interfere with the wider sentencing discretion of a trial judge. It is up to the trial judge to decide whether to apply the sentencing tariffs or not. The substantive legal basis for sentencing discretion is provided under section 19 of the Criminal Code. This gives the sentencing authority the ultimate discretion on sentencing. It is an extension of a broader judicial discretion that judges exercise exclusively in the discharge of their judicial functions.
    
20. The present case in my view does not fall under the worst type offence category to attract a maximum sentence. Furthermore, I agree with the Defence that this case is hovering between Manslaughter and Murder and as such the sentence would be somewhere between the top end of the Manslaughter category and the lower end of the sentencing scale on Murder.
    
    6. SENTENCING
       
21. I make the following orders:
    

(i) I sentence the Prisoner to Twelve (12) Years imprisonment.

(ii) I suspend One (1) Year for the pre-trial custody period.

(iii) Prisoner is to serve the remaining balance of Eleven (11) Years imprisonment.

(iv) No suspended sentence

Orders Accordingly.
_________________________________________________________________________________________________________
Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Applicant