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State v Mistai (Jnr) [2019] PGNC 140; N7841 (26 April 2019)

N7841

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1357 OF 2018

THE STATE

V

MANLY MISTAI (JNR)

Kerevat: Susame AJ
2019: 12, 18, 26 April

CRIMINAL LAW – Sentence –Plea - Offence – Murder -300(1) Criminal Code – Factors In Mitigation And Aggravation – Attack By More Than One Person – Dangerous Weapons Used – Offence Prevalent – Serious Offence – Victim’s Properties Damaged – Family Displaced - Threatened And Forced To Leave Block –– 25 Years Imprisonment – De facto Provocation- 3 Years Suspended – Balance Of 22 Years To Serve, Less Period In Custody

Cases Cited:

Goli Golu v The State [1988-1989] PNGLR 643
Joseph Enn v The State SCRA 3 of 2003
Joseph Nimagi & 02 ors v State [2004] PGSC 31; SC741
Manu Kovi v The State [2005] PGSC 34; SC789
Mary Bomai Michael v The State [2004] PGSC 37
Simon Kama v The State [2004] PGSC 32; SC
The State v Jimmy Ketu (N0.2) N3394,
The State v John Vali (unreported) dated 22 July 2004
The State v Tom & Bobi [2009] N3675
The State v Peter Uratigal CR. N0. 1831 of 2016 (dated 6 December 2018)
The State v Kaur Aquila CR. N0.10 of 2017(date 10 April 2019)

Counsel

Mr Tugah G, for the State
Ms Ainui J M, for the Prisoner

DECISION ON SENTENCE

26^th April, 2019

1. SUSAME AJ: Prisoner pleaded guilty to a charge of murder contrary to s 300 (1) of the Criminal Code on 12 April 2019. After confirming his plea court entered conviction against him. He is in court to receive his sentence.
   

Facts

2. Accused is a small biological brother of the late David Manly. David Manly had an argument with his sister Jessie Manly earlier on 12 July 2018. During that argument David attempted to hit her with a stick and insulted her saying ‘polapola ra bitim’ (meaning you have a watery ass). Later Jessie went and reported what had happened to the prisoner (her younger brother). At around 11 am and 12 noon that day the prisoner out of sympathy of their sister went and questioned David why he had insulted Jessie and assaulted her. An argument ensued between the two and David cut the prisoner with a knife on his right hand. Prisoner retaliated by grabbing a bush knife and chased David down the cocoa block. The arguement continued and Vincent ToBata (Jessie’s husband) and Isaac Tama aided the prisoner. They attacked David with knives, spear and an iron bar for husking coconuts. They slashed him on his calf muscles and speared him on the face. Due to severe loss of blood from the wounds he received David passed on.
   

Allocutus

3. Prisoner had this to say in his address on sentence. “Firstly, I would like to say sorry to court for what I have done. I did not mean to kill my brother. I ask the court to give me any sentence it wish to give me. Thank you. That is all.”
   

Offence

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.

Issue

4. The task of the court is to decide the appropriate penalty to impose upon the prisoner.
   

Submissions

5. In their respective submissions counsel have reminded the court on established principles of sentencing practice on maximum penalty, set out the mitigating and aggravating factors, sentencing guidelines on homicide cases, comparable judgments and their concluding views and the type of sentence court should impose. I have considered them. First consideration of the maximum penalty.
   

Maximum Penalty

6. The mandatory maximum penalty for offence of murder is imprisonment for life. Prisoner has therefore attracted upon himself the possibility of receiving the maximum penalty there is in law. Maximum penalty cannot be ruled out if facts and factors are so aggravating for the case to be considered the worst type of murder. Otherwise, maximum penalty should be reserved.

That is trite principle of sentencing practice observed by the courts. Authority on point is the much cited case of Goli Golu v The State [1988-1989] PNGLR 643.

7. Next is consideration of recommended sentencing guidelines by judicial pronouncements in homicide cases.

Guidelines in Homicide Cases

8. There have been attempts by the Supreme Courts to come up with guidelines in sentencing offenders in Mary Bomai Michael v The State [2004] PGSC 37 Joseph Nimagi & 02 ors v The State [2004] PGSC 31; SC741 (1 April 2004) Simon Kama v The State [2004] PGSC 32; SC 740 Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) is the latest case which is the leading authority often relied on. The Supreme Court set out the factors and formulated four categories of sentencing range for offences of wilful murder, murder and manslaughter. The fourth category provides list of factors to justify the maximum penalty for all three offences.
   
9. The court has given careful consideration of the facts, circumstances of the case as well as the prisoner’s characteristics in view of category four factors for offence of murder. The factors to justify the maximum life sentence are:
   

• 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.

Comparable Decisions

10. Counsels have assisted the court with a number of decided cases outlined below.
    

Joseph Enn v The State SCRA 3 of 2003

11. Prisoner was sentenced to 20 years. During an argument he cut the deceased with a bush knife on the left side of his head severing the head off the body. He appealed against the conviction and sentence. The Supreme Court dismissed the appeal and affirmed the conviction and sentence of 20 years.
    

The State v Jimmy Ketu (N0.2) N3394

12. Prisoner was sentenced to 20 years. During an argument with his brother he returned to his house. He armed himself with a knife and in a fit of rage and instead of approaching his brother he cut an innocent bystander who died of injuries sustained.
    

The State v John Vali (unreported) dated 22 July 2004

13. Prisoner was sentenced to 25 years imprisonment. The argument was over wages. Prisoner drove the deceased to a remote area and assaulted him severely. Prisoner left him there with serious injuries and left him to die. The prisoner lodged an appeal against his conviction and sentence in the case of John Vali v The State [2007]PGSC31 SCRA 61 of 2005 (29 June 2007). Supreme Court affirmed the sentence and dismissed the appeal.
    

The State v Tom & Bobi [2009] N3675

14. The prisoners were imprisoned for 12 years. While they were drinking at a club deceased had asked the prisoner Tom to give him some money but Tom refused. Deceased then swore at him to eat his penis. An argument ensued and the prisoners assaulted the deceased severely and he died of injuries received.
    

The State v Peter Uratigal CR. N0. 1831 of 2016 (dated 6 December 2018)

15. Prisoner was sentenced to 18 years imprisonment. During an argument deceased threw a spade at his wife which struck her head and caused severe head injuries that led to her death.
    

The State v Kaur Aquila CR. N0.10 of 2017(date 10 April 2019)

16. After trial prisoner was imprisoned for 15 years and 3 years suspended with conditions. Prisoner severely punched his de facto wife during a brief argument they had. Deceased died of injuries sustained.
    
17. The facts and circumstances of the present case are distinct from the cases referred. They were decided on their own peculiar set of facts and circumstances. At least they are useful in guiding this court in reaching a sentence.
    
18. I noted that in the cases Mr Tugah referred prisoners received sentences within high end of category two (16 - 20 years) and lower end of category three (20-30 range) of the Manu Kovi guidelines. Ms Ainui referred to cases prisoners received sentences within category 2 (16 -20). Mr Tugah considered the present case fell within higher end of category two and lower end of category three while Ms Ainui submitted the present case fell under category two.
    
19. Court is inclined to accept the defence submission factors fall short to justify the maximum penalty in the present case.
    
20. Court has considered the factors in both category two and three of Manu Kovi. In my considered view there was no pre-planning on the part of the prisoner to attack his late elder brother when he confronted him. Upon receiving report from their sister prisoner had approached his late brother to question him why he had insulted and assaulted their sister. Both of then reacted and went for their knives when prisoner was slashed with a knife by his late brother. Except for that factor, all other factors in category three are present considering events that followed leading up to the brother’s attack and his subsequent death.
    
21. In my considered view the present case falls within category three attracting a sentencing range of 20 – 30 years imprisonment.
    

Consideration of factors of aggravation and mitigation

22. Counsels have provided the mitigating and aggravating factors in their submissions. They are listed below.
    

Mitigating Factors

• He has pleaded guilty to the charge saving courts time and increased cost of having to run a trial.
• Prisoner acted out of de facto provocation.
• Prisoner expressed some remorse
• Prisoner co-operated with police and made early admissions in the record of interview
  

Aggravating Factors

• Prisoner is not a first time offender he has a history of prior conviction of unlawful assault. He was sentenced to 8 months. The date and court which sentenced him has not been provided.
• Dangerous weapons were used
• The attack was quite vicious with strong intention to do grievous bodily harm
• Nothing tangible like payment of compensation was done.
• Gravity and prevalence of the offence.
  

Pre-Sentence & Means Assessment Reports

23. The reports provide additional information about the prisoner’s personal background, his family, his financial capacity, views from various individuals selected and interviewed, including the wife of the deceased, the circumstances of the offence, the author’s assessment of the prisoner and his recommendations.
    

Court’s Views

24. First my comments on matters arising from the pre-sentence report. Under the head ‘circumstances of the offence’ the author had set out the facts of the case. The version differ slightly from the facts conviction was entered. That should not be allowed as it attempts to create doubt in the mind of the judge to reconsider the facts. To prevent that it is more appropriate author relies on the facts based on which decision was made. That said court will not rely on version of facts stated in the report. Rather, on the facts prisoner had pleaded guilty to and are set out in the introductory part of the judgment.
    
25. Next Ms Ainui had submitted killing occurred in a setting where the family was trying to resolve an on-going dispute (implying dispute over property or land). She regarded that as a mitigating factor.
    
26. Let me comment on this. There may be such an existing dispute within the family. The facts prisoner pleaded to do not touch on that issue. If that issue had been stated in the facts that would establish another motive or reason for the murder. That factor would have weighed against the prisoner.
    
27. It goes without saying killing of another person is a very serious matter. No one not even the court can treat that lightly. Right to life is God given. He makes it very clear life is precious more previous than silver and gold. That right is protected by the Constitution (ss 35 & 37) and the criminal law provides sanctions to deal with offenders who breach that right. Courts have a duty to ensure that right is protected. Repeating what many have said, no amount of remorse, no punishment no compensation can restore a life that has been lost.
    
28. Sad reality is there seems to be no value for human life. The increasing instances of use of weapons and objects seems to be the order of the day in arguments nowadays. So many deaths are occurring over petty or minor disputes and arguments even amongst family members which can peacefully be resolved without resorting to physical confrontations with dangerous weapons like bush knives.
    
29. Late David Manly was viciously attacked by more than one person, persons who were known and close to him. His life was pre-maturely removed from the face of the earth by the prisoner and others involved who were adamant to do him harm.
    
30. One other factor that is highlighted in the pre-sentence report. After the death of late David Manly his wife and children have now been displaced. Their dwelling house have been damaged. They have been threatened by the prisoner’s family and have been forced to leave their property. As immediate beneficiaries they are being denied access to their property.
    
31. In view of the factors that I have expressed prisoner’s plea and good report are diminished and of less significance.
    
32. Following all my discussions sentence should fall mid-point between 20 – 30 years sentencing range in Manu Kovi.
    
33. The sentence is to reflect the gravity of the offence and to echo the message for personal and general deterrence. Accordingly, prisoner is sentenced to 25 years. Should the court suspend portion of the sentence in further exercise of powers under s19? That requires consideration of factors to justify the court doing that.
    
34. There was undertaking made by the prisoner’s family for payment of compensation. Payment of compensation is discretionary. It is depended on other party’s willingness to accept compensation. In this case the wife of the deceased is not willing to accept any compensation. Children’s’ views have not been obtained. But then what good will that achieve when the wife and the children are being chased away by the late David’s family whose interest is to take ownership over the property they have been having dispute for.
    
35. However, there is one factor I consider will justify me to suspend portion of the sentence. The death occurred during an argument. Both the deceased and the prisoner went for their knives to attack one another. Prisoner was the first to be cut with a bush knife. That provoked the prisoner to chase the deceased and he was cut on his legs. In the circumstances prisoner acted out of de facto provocation. That factor should mitigate his sentence slightly.
    
36. In the exercise of court’s discretion 3 years will be suspended from 25 years sentence.
    
37. That will leave a balance of 22 years to serve. However, that sentence will be further discounted for period spent in custody.

_______________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Prisoner