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State v Agai [2018] PGNC 478; N7587 (2 November 2018)

N7587

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 613 OF 2018

THE STATE

V

SAMUEL AGAI

Lae: Numapo AJ
2018: 17^th, 23^rd August & 2^nd November

CRIMINAL LAW – Particular offence – Murder – Guilty Plea – Some Degree of de facto provocation - Sentencing Principles – Appropriate Sentence – Sentencing Discretion – Aggravating & Mitigating factors – Extenuating circumstances – Sections 300 & 19 of Criminal Code

Held:

(i) Factual circumstances of the case does not place it under a category of worst type offence to attract a maximum penalty prescribed by law.

(ii) Sentencing guidelines only provide as a guide it does not take away the sentencing discretion of the court.

(iii) A sentence imposed by the court must reflect the purpose of sentencing such as deterrence, rehabilitation, restitution and retribution.

(iv) Prisoner sentenced to 15 years imprisonment.

(v) No suspended sentence.

Cases Cited:

Avia Aihi v The State (No.3) [1982] PNGLR 92

Goli Golu v The State [1979] PNGLR 653

Manu Kovi v The State (2005) SC 789

Simon Kama v The State (2004) SC 740

State v Lom [2012] PGNC 63; N4725

State v Mareva [2012] PGNC 44; N5220

State v Rende [2013] PGNC 44; N5220

State v Roy N5968 of 19 March 2015
State v Tuu N3706 of 17 March 2008

Ume v The State (2006) SC 836

Counsel:

T. Aihi, for the State
S. Katurowe, for the Defence

SENTENCE

02^nd November, 2018

1. NUMAPO AJ: This is a sentence on murder. The prisoner SAMUEL AGAI of Sopu village, Huon Gulf, Morobe Province pleaded Guilty to one count of Murder contrary to section 300 (1) (a) of the Criminal Code Act. The facts to which he pleaded guilty were that; on the 27^th of January 2018 at around 7:30pm the Accused approached the Deceased Ken Doemo from behind and cut him several times on his legs, knees and on the sheen. The Deceased bled heavily from the injuries and subsequently died from a loss of blood.
   
   1. THE CHARGE
      
2. Section 300 (1) (a) of the Criminal Code 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 a person killed or to some other person;

Penalty: Subject to Section 19, imprisonment for life.

3. In his allocutus the Prisoner expressed remorse and apologized to the Court and the relatives of the Deceased. The Deceased was his nephew and he didn’t mean to kill him. He intends to compensate her elder sister, the mother of the Deceased if the Court gives him time to do so.
   
   2. APPROPRIATE SENTENCE
      
4. The maximum penalty provided under section 300 of the Criminal Code is life imprisonment. The Court has a wider sentencing discretion to consider a lesser sentence pursuant to section 19 of the Criminal Code. Section 19 however, does not provide a range of lesser sentences for consideration and instead left it to the discretion of the Court to decide on the appropriate lesser sentence including non-custodial sentence.
   
5. The State conceded that the present case does not fall under the category of worst type offence and therefore, should not attract the maximum penalty of life imprisonment prescribed by law and submitted instead that the Court considers imposing a head sentence of between 16 – 20 years imprisonment given the prevalence of the offence. State also agreed that there was some degree of de facto provocation involved. Maximum penalty is only reserved for worst type offences. See: Goli Golu v The State [1979] PNGLR 653 & Avia Aihi v The State (No.3) [1982] PNGLR 92.
   
6. The sentencing tariffs on Murder are set out in Manu Kovi v The State (2005) SC789 as stated below:
   
   • (a) Category 1: In plea case where there are mitigating factors with no aggravating factors i.e., no weapons used, minimum force used, little or no planning and the absence of strong intent to do GBH: 12 – 15 years imprisonment.
     
   • (b) Category 2: In a trial or plea where there are mitigating factors as well as aggravating factors, i.e., weapon used, some element of viciousness, some pre-planning and no strong intent to do GBH: 16 – 20 years imprisonment.
     
   • (c) Category 3: In a trial or plea where there is special aggravating factors and the mitigating factors are reduced in weight or rendered insignificant by gravity of offence, i.e., dangerous or offensive weapon used e.g., gun or axe, vicious attack, pre-planned attack, strong desire to do GBH and other offences of violence committed: 20 – 30 years imprisonment.
     
   • (d) Category 4: Worst case in a trial or plea where there is special aggravating features, no extenuating circumstances, and no mitigating factors or rendered insignificant by gravity of the offence i.e., pre-meditated attack, brutal killing in cold blood, killing innocent or harmless person, killing in the course of committing another serious offence and complete disregard of a human life: Life Sentence.
     
7. Defence submitted that the present case falls under Category 1 of the Manu Kovi Guidelines in that the appropriate sentence should be between 12 – 15 years. Considering all the factual circumstances of the case, I am of the view that this case falls between the top end of Category 1 and bottom end of Category 2 of the Manu Kovi Guidelines.
   
8. In any event, the Court is not obliged to follow the Manu Kovi Guidelines as it serves merely as a guide for purposes of parity and consistency in sentencing for like offences.
   
   100. AGGRAVATING AND MITIGATING FACTORS
        
9. Each case is considered on its own merits and therefore, the Court must take into account the relevant factors before deciding on the appropriate sentence, such as the aggravating and mitigating factors, extenuating circumstances, gravity of the offence and any other factors peculiar to the case itself including the prevalence of the particular offence.
   
10. In Ume v The State (2006) SC 836 the Supreme Court described the aggravating factors, extenuating circumstances and mitigating factors in the following terms:
    

“The consideration of aggravating factors is of course not new. They include pre-planning, degree of pre-mediation, weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after the killing, and so on.

As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself; factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances includes de-facto provocation, duress or coercion, the degree of and extent of the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did.

As for mitigating factors, relevant factors to be considered include the offender’s youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first time offender, guilty plea; early confession to police; remorse; co-operation with police; poor health and restitution or compensation.”

11. The aggravating and mitigating factors of the present case are as follows:
    

(a) Aggravating Factors

• (i) This was a vicious attack.
  
• (ii) The Deceased suffered multiple wounds to both legs, knees and the sheen.
  
  • (iii) An offensive weapon was used.
    
  • (iv) Prevalence of the offence.
    

(b) Mitigating Factors

• (i) The Prisoner pleaded guilty early.
  
• (ii) The Prisoner made early admissions to the Police.
  
• (iii) No strong intent to do GBH.
  
  • (iv) The Prisoner is the first time offender
    
  • (v) The Prisoner expressed remorse.
    

(c) Extenuating Circumstances

• (i) There was some degree of de facto provocation in that the Deceased had planned to attack the Prisoner and has made this fact known to many people in the village. The Prisoner was made aware of that and on the day he saw the Deceased standing outside his house he thought the Deceased had come to attack him. He attacked the Deceased thinking that he would disabled him and stopped him from attacking him. It was a pre-emptive strike on the part of the Prisoner to stop him from attacking him.
  

4. PRE-SENTENCE REPORT
   

12. The Pre-Sentence Report gave a detailed background of the case. The Deceased is the eldest son of Prisoner’s elder sister and he is his nephew. The Deceased’s father deserted the family when the Deceased was small and the Accused raised him up. The Deceased was known in the village as a trouble-maker. He broke into other people’s house and stole from them and was also using and selling drugs and got into fights with others. He has a bad reputation in the village. As his uncle and father-figure, the Prisoner took full responsibility of his nephew’s actions and has paid compensations for the wrongs that the Deceased committed in the past. He warned his nephew on many occasions to stay away from trouble but the Deceased did not take heed of his advice.
    
13. The Sopu village community decided to refer the Deceased to the Police as he was getting out of control. They wrote to the Deceased and asked him to surrender to the Police. The Deceased was upset with his uncle (prisoner) that he reported him to the Police. The Deceased then told his cousin that he would chop his uncle’s neck off for reporting him to the Police. On the day the Prisoner saw the Deceased in front of his house he thought he had come to attack him. He walked towards him and without any warning took out a knife and started attacking the Deceased. He cut him on both his legs and the Deceased fell to the ground. He then walked away.
    
14. The Prisoner realizing what he has done returned back to where the Deceased was and tried to help him get some medical assistance but due to the long distance between the village and the Health Centre the Deceased died from a loss of blood.
    
    5. COMPARABLE CASE LAWS
       
15. A number of case laws were also cited by both Counsels to assist the Court with its deliberations. I list them here below:
    
    • (i) State v Lom [2012] PGNC 63; N4725 (Gauli AJ)
      
16. The offender in that case killed his wife after he found her having an affair with another man. He chopped her on her head, arm and leg with a bushknife. She died instantly. On a plea of guilty, the offender was sentenced to 18 years imprisonment.
    
    • (ii) State v Mareva [2912] PGNC 222; N4805 (Gauli AJ)
      
17. The offender in that case beat his wife continuously for three days with a car jerk handle. She died from injuries sustained all over her body. The offender pleaded guilty and was sentenced to 24 years.
    
    • (iii) State v Rende [2013] PGNC 44; N5220 ( David J)
      
18. In that case, the offender pleaded guilty to killing his wife. He chopped the deceased many times on her body. She died from the injuries sustained. On plea of guilty, the Court held that the appropriate sentence was 24 years imprisonment. However, the Court imposed 12 years instead due to the offender’s advanced age.
    
    • (iv) State v Roy N5968 of 19 March 2015 (Toliken J)
      
19. The Deceased is married to the Prisoner. They had an argument over cooking arrangements as the Prisoner refused to do the cooking. The Deceased picked up a stick and hit the Prisoner on the back of her shoulder and also on her legs. The prisoner then got a kitchen knife and stab the deceased on the left side of his chest. The knife pierced the heart and caused heavy bleeding and the deceased died. The prisoner was sentenced to 14 years imprisonment.
    
    • (v) State v Tuu N3706 of 17 March 2008 (David J)
      
20. The deceased and the offender were married to the same husband. The deceased travelled into Mt Hagen with a little child to go to the hospital in a PMV truck driven by her husband. The prisoner followed them into town and confronted the deceased. An argument developed which led to a fight. The prisoner took out a kitchen knife and stabbed the deceased on her abdomen. The knife penetrated the right kidney and part of her liver and the deceased died a little later. The prisoner pleaded guilty and cooperated well with the police and expressed remorse. She was sentenced to 16 years imprisonment.
    
    6. PRESENT CASE
       
21. Having considered all the factual circumstances of the case, I agree with both Counsels that this case does not fall under the worst type offence category to attract the maximum penalty. The next task for the Court now is to decide what should be the head sentence. And in doing so, I take into account the relevant factors such as the aggravating and mitigating factors and the extenuating circumstances and assess what factors and considerations stand out strongly that will dictate the type of head sentence to be imposed.
    
22. Firstly, in aggravating factors, I find the following strong points:
    
    • (i) An offensive weapon was used. A use of an offensive weapon in any attack has the potential of causing serious injuries that might even lead to death.
      
    • (ii) The Deceased suffered multiple cut wounds to his legs and knees and subsequently died from a loss of blood.
      
    • (iii) There were some elements of viciousness in the attack.
      

Secondly, in mitigating factors, I consider the following in the Prisoner’s favour:

(i) He pleaded guilty early.

(ii) He is a first time offender.

(iii) There was no strong intent to do GBH.

(iv) There was a de facto provocation.

(v) The attack was meant only to disabled the Deceased from carrying out his threat to attack the Prisoner.

• (vi) Prisoner made some attempts to save the Deceased by taking him to the nearest Health Centre but given the long distance the Deceased succumbed to his injuries and died from a loss of blood.
  

7. SENTENCE
   

23. The sentence of the court is as follows:

(i) I sentenced the prisoner to Fifteen (15) years imprisonment.

(ii) Pursuant to section 3 (2) of the Criminal Justice (Sentences) Act, I deduct Nine (9) Months for the pre-trial custody period.

(iii) Prisoner is to serve the balance imprisonment term of Fourteen (14) years and Three (3) Months in hard labour.

(iv) No suspended sentence.

Sentenced accordingly.

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Applicant