N7610

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 857 OF 2017

THE STATE

V

CJ (A JUVENILE)

Alotau: Toliken, J
2018:  13th June, 12th July, 23rd November

CRIMINAL LAW – Sentence – Murder – Plea – Juvenile - Prisoner Stabbed Deceased on Back Twice With Knife - Mitigating and Aggravating Factors Considered – Sentencing Principles Under Juvenile Justice Act 2014 Considered – Appropriate Sentence 10 Years Less Pre-Trial Detention Period – Prisoner to Serve Part of Sentence Until he Reaches 21 Years Of Age at Juvenile Section of Correctional Institution at Giligili –Institution to Facilitate FODE Studies for Prisoner - Nil Suspension – Criminal Code Ch. 262, Ss 300 (1)(A); Juvenile Justice Act 2014, Ss 6,76,77,79,81,85 .

Cases Cited:

The State v FT (A Juvenile) (2016) N6435

Counsel:    

J Apo, for the State      
N Walis, for the Prisoner

JUDGMENT ON SENTENCE
23nd November, 2018
1.	TOLIKEN	 J.	CJ, on 13th June 2018 you pleaded guilty to an indictment charging you with one count of murder contrary to Section 300 (1) (a) of the Criminal Code.

2.	The brief facts are that on 18th December 2016, here in Alotau Town, you and your friends confronted the deceased Junior Edrick Tomaia over an incident which happened the previous day where the deceased was alleged to have destroyed market tables belonging to some people whom you knew. During the confrontation you and your friends attacked Edrick. Edrick ran off and you and your friends chased him toward a small creek. There you and your friends continued to assault him. You then took out a knife and stabbed Edrick on the back. He was taken to the hospital but died from loss of blood due to wounds he sustained from the stabbing. 

3.	I first entered a provisional guilty which I confirmed after perusing the depositions and accordingly convicted you.

4.	You were a juvenile when you committed the offence hence, I directed that a pre-sentence report (PSR) be compiled in your behalf before I could proceed to pass sentence on you as required by the Juvenile Justice Act 2014 (JJA), s 79. I heard your address on sentence and submissions from the lawyers on 12th July 2018 and adjourned for sentence.

5.	 The crime of murder carries a maximum penalty of life imprisonment. This does mean though that I will give you a life sentence. Whether or not you get a life sentence depends on whether your case is a worst case of murder. That is because the maximum penalty for any offence is usually reserved for the worst types of offending. Your case must also be given a sentence that fits the circumstances of your own case. But because you were a juvenile when you committed this offence I must also sentence you according to the sentencing principles under the JJA. The Act specifically stipulates that a juvenile shall not be sentenced to death or to life imprisonment. 

6.	Briefly the JJA provides that juvenile offenders must be treated quite differently from adult offenders. Section 6 (b) of the JJA provides that when dealing juveniles (persons aged between 10 - 18 years of age), the primary or paramount consideration is the juvenile's interest. The JJA therefore gives juveniles like you special protections. 
 
7.	For instance, juveniles cannot be sentenced to life imprisonment or death because that is prohibited by Section 85 of the JJA. While a juvenile can be sentenced to a term of years, the court's power to impose a custodial sentence is further restricted by Section 81 which provides that a custodial sentence may only be imposed if there are no reasonable alternatives, or a combination of alternatives available to the court, which may include committing the juvenile to a Juvenile Institution. And where a juvenile is to be incarcerated in an ordinary Corrective Institution, the court must be satisfied that that institution has a separate facility for juveniles.
8.	Section 76 (1) of JJA sets out the purposes of sentencing for juveniles. These are:

(a) 	encourage the juvenile to understand the consequences of and be accountable for the harm caused by his actions; and
(b) 	promote an individual response which is appropriate to his	circumstances and proportionate to the circumstances 		surrounding his offence; and
(c) 	promote his rehabilitation and reintegration into the family 	and community; and
(d) 	ensure protection of the public.

9.	Subsection (2) of Section 76 sets out the sentencing principles. These are:

(a) 	proportionality between the sentence and the seriousness 	and 	degree of responsibility of the juvenile.
(b)	the sentence must be the least restrictive that is capable of 	achieving the objects under Subsection (1),  one that is most 	likely to rehabilitate the juvenile and integrate him back into the 	society, promote a sense of responsibility in the juvenile and an 	acknowledgment of the harm done to the victim and the 	community; and
(c)	the sentence shall have regard to the age of the juvenile and 	limited capacity to appreciate the consequences if his action; 	and 
(d)	the sentence shall not result in a punishment that is greater 	than the punishment that would be appropriate for an adult 	who has been convicted of the same offence in similar 	circumstances; and 
(e)	if appropriate juveniles shall be permitted o remain in the 	community; and
(f)	deprivation of liberty shall be used only as a measure of last resort, or the shortest period necessary to achieve the purposes set out in Subsection (1).

10.	And in determining a sentence for a juvenile, the court must to take into account a whole range of factors including the seriousness of  the offence, the juvenile's degree of participation in the offence, the harm done to the victim and whether it was intentional or reasonably foreseeable, the juvenile's age, maturity, education, health, character and attitude, any history of previous offence and, if so, how the juvenile has responded to orders for previous offences, and the views in a pre-sentence report and a whole lot of other factors. The sentencing court is, however, not bound by strict precedence when sentencing juveniles. (Section 77 of the JJA).
 
11.	I must therefore impose a sentence on you within the bounds and restrictions imposed on me by the JJA as we have seen above.	Sending you to jail in the first instance is not automatic - it is in fact the last option. Be that as it may, I must impose a sentence that will best serve your interest while holding you accountable for your action and the impact it had on the victim and her family, your own family and the community in general.

12.	For you, I must be satisfied that there are no other alternative forms of punishment available to me before I can commit you to a Corrective Institution as an absolute last resort. And if I do, I must consider the effect of commitment on you and balance this with the clearly stated objects of sentencing juveniles like you. 

13.	I must necessarily ask myself; what type of sentence will most likely rehabilitate you; will it promote reintegrating you back into the community and reconciling you with your victim?; are you a danger to the community so that you should be kept away in jail?; do you appreciate the harm you caused to your victim and her family and do you take full responsibility for your action?

14.	Now coming back to your case, you were 17 years old when you committed the offence. You come from Uriat village, Agaun, Daga RLLG, Alotau District of Milne Bay Province. You are the only children in your family. Your parents are both alive and reside here in town. You are a member of the Anglican Church and were educated up to Grade 6 only at the KB Primary School. So essentially you are semi-illiterate. You are a first time offender.  
15.	In your address to the Court, you apologised to God and to the Court for breaking the law. You also apologised to the deceased’s family. You pleaded for mercy and asked that you be placed on probation.

16.	Your lawyer Mr. Walis submitted that yours is not a worst offence and since you are a juvenile without any prior conviction you ought to be sentenced to a period of between 8 – 12 years. Counsel submitted that you are not the instigator of the attack on the deceased. He said the instigator was a friend of yours who had been upset with the deceased for destroying his parent’s market table and prodded you and others to attack the deceased. Counsel cited several mitigating factors in your favour which I will return to presently. Counsel asked that the Court should consider a partial suspension in order to advance your interest and welfare, in particular your desire to continue your education as you indicated in your PSR. 

17.	Your PSR is not a balanced one as it did not reflect the views of the family of the deceased. But in the report you do express your desire to continue your education. The report also shows that your family contributed to the deceased’s funeral expenses in cash and kind to the value of K3035.00. The author of the report left it to the Court to impose an appropriate sentence for you.

18.	Mr. Apo for the state submitted that despite your youthfulness you ought to be sentenced to a period of imprisonment between 12 – 16 years and said that 14 years would be appropriate in the circumstances of your case. Your case, counsel submitted demonstrated a strong desire to cause bodily harm, the use of an offensive weapon on a defenceless and unarmed person. 

19.	Now, yours is not a worst case of murder, however, I am of the view that your objective culpability was quite high. There was use of a dangerous weapon, others were involved in assaulting the deceased before you fatally wounded him, alcohol was involved and the wound were inflicted on a vulnerable part of the body. And there was strong desire to cause harm. 
  
20.	I recognize that I must consider your best interest in determining an appropriate sentence for you. I also accept that I may only impose a custodial sentence as a last resort. However, these considerations must be balanced with the interest of justice and particularly with the need to exact out of everyone –adults and juveniles alike – respect for the sanctity of life. Juveniles must be made to take responsibility for their actions and for those who take a life they must accept the fact that they will lose their liberty. Unless exceptional circumstances or compelling reasons can be shown, such as minimal culpability, juveniles will be given a custodial sentence that befits their crime with the objective of rehabilitating them.  

21.	Both counsel have cited case authorities to me, however, as we have seen I do not have to take those into consideration in determining your sentence. Hence I will treat your case on an individual basis as the Juvenile Justice Act stipulates so you are served a sentence that fits the peculiar circumstances of you case. 

22.	And to that end I find the following mitigating factors in your favour:

•	You pleaded guilty  to the charge very early
•	You made early admissions and co-operated with the police
•	You are a first time offender
•	You were of prior good character
•	You  are inadequately educated
•	You are a juvenile
•	You are provoked in a non-legal sense
•	You did not pre-plan to attack the deceased
•	You gave in to peer pressure from your friend to attack the deceased in retaliation for him damaging your friend’s parents’ property.
•	You have expressed remorse and your family had assisted with the deceased funeral expenses.

23.	However, against  you are the following aggravating factors:

•	You used a dangerous weapon to attack and kill the deceased
•	You attacked him on a vulnerable part of his body – his back. You inflicted 2 stab wounds of the deceased’s back one of which measured 5cm x 3cm and penetrated deep into thoracic spine according to the post mortem report. 
•	There was a strong desire on your part to cause harm
•	You were under the influence of intoxicating liquor
•	You were in the company of others who also assaulted the deceased before you fatal wounded him. 
•	The deceased was unarmed and defenceless
•	The offence is very prevalent.

24.	Now, this is yet another case in which another young man has unnecessarily lost his life at the hands of another youth. This is another case where a life has been taken by someone who was under the influence of liquor – particularly illicit liquor or alcohol. This is yet another matter in which another young man – barely out of childhood has and must lose his freedom or liberty for a good part of his youthful life because has acted stupidly because of abuse of alcohol and for running with similarly his uncontrolled and misguided juvenile peers.

25.	So must you be allowed to walk free with a non-custodial or suspended sentence simply because you were a juvenile when you committed this offence? Certainly not, because if while you were running around as a free man outside, without a care in the world for the rights of others, and all the while spurning the discipline of your parents and essentially running around without the slightest concern what the future will hold for you, having terminated your education prematurely, then you must be made to realize and accept that the decisions you make and actions you take – whether deliberately or recklessly – have consequences. 

26.	In this case, you decided to listen to your friend in attacking the deceased. You and your friends chased him and while it appears that your friends only physically assaulted him you took it upon yourself to attack him with a knife and stabbed twice on his back. 

27.	The deceased has lost his life forever. That life can never be replaced. He has prematurely left behind a grieving family and relatives who did not expect that their loved one were to be brutally taken away from in the manner you did.

28.	And so you must pay for your crime not with your life but with what you hold dear apart from life itself. And that is with your liberty. You must spend a good part of your young life in detention. And your incarceration must serve principally to re-direct your life. You have taken a huge detour in your very short life when you committed his offence and it is the duty of this Court to assist you in correcting the wrong course you have taken. In other words you must be rehabilitated so that you can become a useful member of your society, community, province and country.  And the best place this can happen is not in your community because you will – for a certainty – revert to running with the same crowd you were with when you prematurely took the deceased’s life.

29.	Your incarceration must also serve to deter you personally and others as well. Juveniles and youthful offenders must be made to know that crime pays a bitter wage. You will lose your liberty and when you do so you lose a part of your humanity. Much of the crimes committed in this country today a committed by people in your age group and unfortunately abuse of alcohol plays a huge role amongst those that commit crimes. Hence, offenders, and more particularly those in your age group must also be made to recognize the bad effects of intoxication.
  
30.	The Juvenile Justice Act stipulates that before committing a juvenile to a period of imprisonment, I must ensure that no alternatives forms of punishment are available. And where there is none I must at the first instance commit to a juvenile institution to serve your sentence. And only if no juvenile institution is available will I commit you to a corrective institution but only if the institution has a juvenile section.
31.	There is no juvenile institution here in Milne Bay and I am not aware of any institution in the southern region of the country for juveniles that is open and able to take you in. I am aware of the Erap Boys Remand Centre in Morobe, but I am not sure if it is still open. The only Juvenile Centre which I am aware is taking in juveniles is the Mabiri Juvenile Centre in the Autonomous Region of Bougainville. That, however, is not a viable option because the Constitution (s 37(20)) commands that prisoners are not to be incarcerated or transferred to a prison in an area away from that where their relatives are, except for security reasons or other good cause. I am satisfied, however, that the CS Giligili does have a juvenile section where you can serve a part of your sentence. 

32.	So what should be an appropriate sentence for you? Your lawyer Mr. Walis referred me to the case of The State v FT (A Juvenile) (2016) N6435 as a reference case in deciding an appropriate sentence for you. As I said I am not bound to follow precedence, but for all its worth, the culpability of the offender that case was very low. His only involvement in the killing of the deceased was that of fetching the spear (reluctantly after repeatedly being commanded by his elder brother) which his brother then used to kill the deceased with. I sentenced him to 5 years imprisonment which I wholly suspended on condition.

33.	The circumstances of your case are entirely different and as I have said demonstrated a pretty high level of culpability. I am of the opinion that an appropriate sentence for you ought to be 10 years.  

34.	I therefore sentence you to 10 years imprisonment from which the time you spent in pre-trial detention - 1 year and 11 months and 3 days - will be deducted.

35.	I further order that you will serve your sentence at the Juvenile Section of the Giligili Correctional Institution until you reach the age of 21.

36.	I further recommend that the Commander of Giligili Correctional Institution make arrangements for you to undergo FODE studies during the term of your imprisonment.

Ordered accordingly.     
________________________________________________________________
P Kaluwin, Public Prosecutor:  Lawyer for the State		
L B Mamu, Public Solicitor:  Lawyer for the Prisoner