N8236

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 323 of 2018

THE STATE

V

ARON ROBIN

Lae:  Kaumi. J
2019: 11th & 24th July & 16th December

CRIMINAL LAW – Criminal Code Act 1974-Section 300 subsection (1) (a) Murder- Plea of Guilty-Physical Attack on a man over K40.00-Offender and an accomplice used fists and legs to Relentlessly Attack the deceased into a State of Unconsciousness - Man died from a ruptured spleen leading to loss of blood-Mitigating and Aggravating Factors –First Offender- Genuine Expression of Remorse–Prevalent Offence. 

The offender pleaded guilty to one count of murder of a man. The matter was for sentence.

Cases Cited:

Java v. The State [2002] PGSC 17; SC701 
Joseph Enn v. The State [2004] SC738
Kesino Apo v. The State (1998) PNGLR 182
Manu Kovi v. The State (2005) SC 789
Paguari v. The State [2011] SC 1017
Pauline Painuk v. The State SCRA 54 0f 2000 (unnumbered and unreported dated 22nd November 2000)
Saperus Yalibakut v. The State SCRA No. 52 of 2005, 27/04/2006
State v. Lambert (2009) N3873 
Thress Kumbamong v. The State (2008) SC1017
The State v. Laiam [2010] N3995
The State v. Awi Tobi (Unreported judgement) CR623 of 2018

Legislation Cited: 

Constitutionof Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Counsel

Ms. Comfort Langtry, for the State
Mr. Colman Balus Boku, for the offender

16th December, 2019

SENTENCE 

1.	KAUMI J: This is a decision on sentence for a man who on the 11th July 2019 was found guilty of one count of murder contrary to Section 300 (1) (a) of the Criminal Code Act Chapter 262.

ISSUE

2.	The relevant issue is: what is the appropriate sentence is in this case?

AGREED BRIEF FACTS

3.	Between 8am and 9am on the 10th of November 2017 at Sunrise Chinese Shopping Stores, the offender Aron Robin and an associate Ian Mapu met the deceased Samuel Elijah. The offender then asked the deceased for the K40.00 which he had lent to him some months back to which the deceased replied that he could not recall borrowing any money from the offender.

4.	This response by the deceased made the offender and Ian very angry that they both physically attacked the Deceased by punching and kicking him. The Deceased could not defend himself as they outnumbered him. They did this till the Deceased fell to the ground bleeding and laid motionless and bystanders came to his aid and rushed him to the Angau General Hospital. He died soon after being taken there.

5.	The Deceased died as a result of acute blood loss, ruptured spleen and a trauma he received to his abdomen from a blunt force, all flowing from the severe beating he received at the hands of the offender and Ian.

ANTECEDENT

6.	The Antecedent Report provided to the Court by the State states that he has no prior convictions.

ALLOCATUS

7.	When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:

“I want to say sorry to the Heavenly Father for killing the victim. I say sorry to Your Honour for breaking the law of this country for this problem which the law doesn’t me to do. I say sorry to Your Honour for what I’ve caused, taking your time to hear my case. I say sorry to the lawyers here today to hear my case. I say sorry to the family of the deceased for losing one of their family members. I say sorry to Corrective Service officers for taking me to and fro to court in good times and bad times they looked after me and now I am before this court. I say sorry to my family because they know nothing about this problem and I brought it to them. I ask for the Court’s mercy for probation and Good Behaviour Bond because I am a first time offender and I know nothing about prison and court and I am not married. My parents are dead and I am the only one in the family so I ask for the mercy of the Court to give me probation or a good behavior bond. I ask for the Court’s mercy. I’ve been in CIS for nearly 2 years. There have been three major breakouts happen but I thought of my life and my case so I stayed patiently and now I am before this Court. That’s all.” 

OTHER MATTERS OF FACT

8.	The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating  matters raised in the committal depositions, the allocatus and in submission  that are not contested by the prosecution: Saperus Yalibakut v. The State (2008) SC890. In his allocatus the prisoner stated that since he has been in custody there has been 3 major breakout but he did not escape and I accept this.

SUBMISSION BY DEFENCE COUNSEL

9.	Mr. Boku for the offender submitted that this case did not fall under the ‘worst type’ category hence did not warrant the maximum penalty of life imprisonment subject to section 1a of the Criminal Code Act. He submitted that this then created the avenue for the Courts to deviate from the maximum penalty and decide alternate sentences and this undertaking was approved by Thress Kumbamong v The State (2008) SC1017.

10.	He submitted that the present case fell under category ‘a’ of the sentencing guideline for murder in Paguari v. The State [2011] and category 1 of the Manu Kovi v. The State (2005) SC 789 hence the court should consider a sentence between the range of 12 to 16 years, because of early guilty plea, no firearms used and the offence was not committed while attempting to or committing another offence. He then submitted that this despite Manu Kovi this Court’s sentencing discretion remained unfettered as per Thress Kumbamong v. The State (supra). He referred the Court to one of its earlier sentences in the matter of The State v. Awi Tobi (Unreported judgement) CR623 of 2018 where a wife used a knife to stab her wayward husband after which he died and she was sentenced to five years, that in comparison the instant case there was de facto provocation and no weapon was used. 

11.	He submitted that a 5 year sentence would be appropriate considering the mitigating factors which he said outweighed those in his aggravation.

SUBMISSION BY THE STATE

12.	The crux of Ms. Maru’s submission for the State was that despite the highlighted mitigating factors the fact remained that the deceased was dead and none of what the offender said would change that and the offender was charged with murder following plea bargaining with the State and she quoted what the late Justice Los stated in Kesino Apo v. The State (1998) PNGLR 182 “as a rule a custodial sentence is a starting point for the fundamental reason that all human lives must be protected”.

13.	She submitted that the Court consider a term of years in Category 1 in Manu Kovi case and 12 years being an appropriate Starting point. That there were no special circumstances in this case to warrant probation nor a wholly suspended sentence.

WHAT IS THE MAXIMUM PENALTY?

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.’

14.	Section 19 of the Criminal Code Act allows for the discretion of the Court in sentencing the prisoner.

WHAT IS THE STARTING POINT?

15.	The sentence range for the offence of murder considering the cases I have referred below have ranged from 15 to 20 years. The starting point should be 15 years.

WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCE

16.	The following are National and Supreme Court sentences for Murder, 2000-2010:
(a) Java v. The State [2002] PGSC 17; SC701 (20 Dec 2002) the appellant pleaded guilty and was sentenced to 20 years IHL for the murder of the deceased by stabbing him several times for destroying his food garden. The review was dismissed and the sentence of 20 years was confirmed.

(b) Mangi v. The State [2006] PGSC 30; SC880 (30 June 2006), the Supreme Court when considering the appeal by the prisoner against a sentence of 35 years imposed by the National Court commented on the Manu Kovi case that, here the Court reduced 35 years to 16 years IHL viewing that a knife was used but there was no pre-planning two drunken man fighting leading to the death.

(c) Joseph Enn v. The State [2004] SC738: The appellant appealed against her sentence of 20 years. An argument erupted at a mediation meeting between the deceased and two others. The appellant armed with a long bush knife walked up behind the deceased and struck the deceased with the bush knife on the left side of the neck. The impact of the knife blow was such that, the head was totally severed from the body. The Supreme Court affirmed the sentence of 20 years.

(d) The State v Laiam [2010] N3995: The prisoner stabbed the deceased to death on the chest once with a knife. He pleaded guilty to the charge and was sentenced to 15 years.

(e) Pauline Painuk v The State SCRA 54 0f 2000 (unnumbered and unreported dated 22nd November 2000): There the Supreme Court confirmed a sentence of 18 years to a pleas of murder where the appellant had stabbed the deceased, a young school girl twice.

17.	The above cases demonstrate the sentence range for the offence of murder upon a guilty plea from 15 to 20 years and that the Supreme and National Courts view homicide offences very seriously.

18.	All these mentioned cases can be differentiated from the immediate case in that they all involved the use of weapons whereas the offender in the immediate case used his bare hands and feet to kill the deceased.

WHAT IS THE HEAD SENTENCE?

19.	In order to arrive at a head sentence I have to consider the particular circumstances in which the prisoner has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.

20.	I take into consideration the factors in favour of the offender, lack of prior convictions, plea of guilt, expressed genuine remorse, did not change his admission, deceased provoked the prisoner in the non-legal sense, ruptured spleen was a factor leading to the death of the deceased and the offence not pre-planned.

21.	Against him I have considered the aggravating factors which are as follows, the offender was accompanied by an associate of his and they both assaulted the deceased at the same time; the attack was brutal and relentless until the deceased fell down bleeding and lying motionless on the ground; they did not stop then but continued the assault and were only stopped by the intervention of members of the public; the kind of injuries he received were very brutal and severe as per the medical report and the victim died of acute blood loss from a ruptured spleen and blunt force to his head; the deceased could not defend himself because he was out numbered; considering the amount of cash involved which was K40.00 the attack was quite unjustified, the offender failed to resort to the established legal avenues to recover his money and instead he took the matter into his own hands.

22.	A strong aggravating factor is the fact that the offender and his friend literally beat the deceased to death with their bare hands and feet, they relentlessly attacked him until they succeeded in beating him into oblivion (state of unconsciousness) and all over a measly amount of K40.00? If this whole episode is not a classic case of overkill then I don’t know what it is.

23.	Bearing in mind what the Supreme Court said in Thress Kumbamong v. The State (supra) and the peculiar circumstances of the instant matter, in the exercise of my unfettered sentencing discretion, I impose a head sentence of 10 years.

SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

24.	Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

25.	This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.

26.	In the exercise of my judicial discretion I have decided to deduct the period the offender spent in custody in remand awaiting trial in remand for 1 year 9 months in prison.

SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

27.	The PSR does not contain the views of the deceased’s family, nor from the leaders of the offender’s community. In the event he was to be a beneficiary of a suspended term for purposes of supervision, so as a result the PSR does not recommend any suspension of any kind.

28.	In this matter the notions of sentencing of retribution, deterrence and rehabilitation are relevant in my view.

29.	I take particular note of the aggravating factors.

30.	No part of the sentence is suspended.

SENTENCE

31.	The orders of the Court are as follows:

a) The offender Aron Robin is sentenced to 10 years imprisonment with hard labour.
b) 1 year 9 months is deducted.
c) The offender Aron Robin will serve 8 years 3 months.
d) Orders to this effect shall issue forthwith.
c) Sentence accordingly.
____________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender