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Soni v State [2019] PGNC 84; N7776 (18 March 2019)

N7776

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 761 OF 2015

SIMON SONI

V

THE STATE

Maprik: Gora AJ
2019: 4^th. 6^th, 18^th March

CRIMINLA LAW- Plea of guilty- Charge of murder- Section 300 (1) (a) Criminal Code- Sentence- killing was not deliberate- No strong intention to do grievous bodily harm- Not a worst type of murder- Prisoner seeks suspended sentence and Probation orders.

CRIMINAL LAW- Prisoner of Advanced age- A community leader- Customary compensation and reconciliation as mitigating factors- Favorable pre-sentence report- Community view for probation supervision- Suspended sentence with conditions appropriate under the circumstances – Order for community based sentence.

Cases Cited

Goli Golu v The State [1979] PNGLR 653
State v Kawin v Kawin [2001] PGNC 42
Lawrence Simbe v The State [1994] PNLR 38
Sate v Kepas [2007] N3192
Manu Kovi v The State [2005] PGSC 34; SC 789

Counsel

Mr. Kupamain, for the State
Mr. Parehau, for the Prisoner

JUDGMENT ON SENTENCE

18^th March, 2019

1. GORA AJ: INTRODUCTION: This is a judgment on sentence. The Prisoner Simon Soni was charged with one count of murder pursuant to Section 300 (1) (a) of the Criminal Code.
   
2. He pleaded guilty to an Indictment which is in the following terms:
   

‘’ SIMON SONI OF GWELIKUM VILLAGE, MAPRIK, East Sepik Province, stands charged that he the said Simon Soni on the 15^th day of December 2014 at GWELIKUM VILLAGE, MAPRIK in Papua new Guinea murdered one ALSON PITAU.’’

BRIEF FACTS

3. Brief facts are that on Monday 15^th December 2014 at about 4:00pm at Gwelikum village, Maprik, NOBERT ASLON PITAU started a fight with his wife because she refused to give him money to buy an illegal and locally made home brew. Prisoner SIMON SONI who is Norbert’s father in-law tried to stop them fighting but Norbert punched him on the nose and the fight went big between the two family groups the SONI’S and the PITAU’s.
   
4. In the course of the fight Norbert threw a knife spear at the prisoner but missed and only cut him on one of his hands. The prisoner then picked up the same knife spear and threw it back at Norbert but he missed him too and instead hit the deceased ALSON PITAU on the head. The spear penetrated the deceased’s head resulting in his death.
   

ISSUE

5. What is the appropriate sentence to impose on the prisoner?

THE LAW

6. Prisoner has been charged under Section 300 (1) (a) of the Criminal Code. This section creates the offence of murder and it also prescribes the penalty. The provision reads:
   

‘’ (1) Subject to the succeeding provisions of this Code, a person who unlawfully 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.’’

7. Maximum penalty on the charge of murder is life imprisonment under Section 300 (1) (a) of the Criminal Code. However it is a settled law in our jurisdiction that the maximum penalty is reserved for the worst type of cases as in State v Kawin [2001] PGNC 42; Goli Golu v The State [1979] PNGLR 653.
   
8. It is also a settled law in our jurisdiction that each case must be decided on its own facts and circumstances as in the case of Lawrence Simbe v The State [1994] PNGLR 38.
   
9. In the present case there was a fight between two family groups and in the course of the fight a knife spear was thrown at the prisoner by his own son in- law who was from the other group but the spear missed him. The prisoner picked up the same spear and threw it back at his son in-law but missed him too and instead the spear landed on his son in-law’s father ALSON PITAU’s head. The spear penetrated his head resulting in his death.
   
10. Counsel for the prisoner submitted that this is not a worst type of murder case which would attract the maximum penalty of life imprisonment as there was no deliberate intention to kill the deceased.
    
11. Counsel for the state also submitted that there was no strong intent to do grievous bodily harm, even though a weapon was used and there were some elements of viciousness.
    
12. In respect of sentence, both counsels submitted that sentencing tariff should fall in Category 2 as suggested by the Supreme Court in the case of Manu Kovi v The State [2005] PGSC 34; SC 789 (21 May 2005) which is 16 to 20 years imprisonment.
    
13. Defense counsel submitted for a suspended sentence considering the fact that the prisoner has paid compensation to deceased’s family in the sum of K15,850.00 and that the prisoner is of advanced age, being 64 years old. Counsel for the state however submitted that sentence should be part custodial.
    

SENTENCE

14. Taking into account all the facts and circumstances of the case, I agree with both counsels that this is not a worst type of murder case which would attract the maximum penalty of life imprisonment basically by reason that there was no strong intent to do grievous bodily harm to the deceased nor a deliberate intention to kill him.
    
15. Therefore in deciding on what would be the appropriate sentence to impose on the prisoner, I take note of the sentencing tariffs suggested by the Supreme Court in the Manu Kovi case (Supra). In this case the Supreme suggested four (4) categories of sentencing tariffs in homicide cases of wilful murder, murder and manslaughter.
    
16. For murder cases in particular, the suggested sentencing tariffs are:
    

CATEGORY 1: Plea- Ordinary cases- Mitigating factors with no aggravating factors- No weapon used- little or no pre-planning- minimum force used- Absence of strong intention to do grievous bodily harm.

Suggested sentencing tariff is 12- 15 years imprisonment.

CATEGORY 2: Trial or plea- Mitigating factors with aggravating factors- No strong intent to do grievous bodily harm- Weapon used- some pre-planning- some elements of viciousness.

Suggested sentencing tariff is 16 – 20 years imprisonment.

CATEGORY 3: Trial or Plea- Special aggravating factors- Mitigating factors reduced in weight or rendered insignificant by gravity of offence- Pre-planned vicious attack- strong desire to do grievous bodily harm- Dangerous or offensive weapon used e.g, gun or axe- other offences of violence committed.

Suggested sentencing tariff is 20 – 30 years imprisonment.

CATEGORY 4: WORST CASE- Trial or Plea- Special aggravating factors- No extenuating circumstances- No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence- 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.

Suggested sentencing tariff is Life imprisonment.

17. The suggested sentencing tariffs are provided as guide only but are now widely applied for sentencing purposes. However the courts still have an unfettered discretion under Section 19 of the Criminal Code to consider alternative sentencing options in view of the facts and circumstances of each case. And further more taking into account the mitigating and aggravating factors pertinent to each case.
    

MITIGATING FACTORS

18. In the present case the mitigating factors which weigh in favor of the prisoner are:
    
    • (a) Prisoner pleaded guilty to the offence thus saving court time and resources to run a trial.
      
    • (b) Prisoner is a first time offender with no prior convictions recorded against him.
      
    • (c) Prisoner had cooperated well with police and made early admissions in the Record of Interview in question and answer 28.
      
    • (d) Prisoner had no strong intention to kill the deceased and there was no pre-planning involved.
      
    • (e) Prisoner has expressed great remorse in allocutus.
      
    • (f) Had made compensation of K15, 850.00 with further reconciliation to take place in July this year 2019 as noted in the Pre-Sentence Report.
      
    • (g) Prisoner is of advanced age, now 64 years old.
      

AGGRAVATING FACTORS

19. The aggravating factor is that life has been lost forever and his family will have to live with the pain of losing a loved one under tragic circumstances. And such loss can never be equated with payment of money as compensation.
    

CIRCUMSTANCES OF THE OFFENCE

20. Cause of incident started when prisoner’s son in-law Norbert Pitau assaulted his wife, who is prisoner’s daughter for not giving him money to buy illegally made home brewed alcohol known as steam. Prisoner came to the aid of his daughter when his son in-law punched him on the nose. This escalated into a fight between two family groups, the prisoner’s family on one side and the family of his son in-law on the other side. During the fight the prisoner’s son in-law threw a knife spear at him but missed and cut him only in his hand. Prisoner picked up the same spear and threw it back at his son in-law but he missed him too and instead hit his son in-law’s father Alson Pitau on the head which penetrated his skull resulting in his death.
    

PRE-SENTENCE REPORT

21. Pre-Sentence Report submitted by the Probation Services has recommended that the prisoner is a suitable candidate for probation supervision considering amongst other things that the prisoner is of no threat or danger to the community. The deceased is prisoner’s cousin brother and therefore has expressed great regret for his actions and that he did not mean to kill him.
    
22. Prisoner is of advanced age 64 years old and has health issues. However there were no medical reports provided to verify his health condition.
    
23. The Pre- Sentence Report also submits that the deceased’s two sons Rowel Alson and Norbert Alson who are the complainants in this matter have both stated that the prisoner is now taking the responsibility of looking after the family of the deceased and their relationship is going well as they are all one family being from the same clan. They confirmed receiving the ‘’bel kol’’ or peace monies and that a further reconciliation ceremony is scheduled for July this year 2019 to settle the problem once and for all. They stated that they have no ill feelings towards the family of the prisoner and have asked the court to put him on probation and to release him back to the community as he is a leader. He currently holds the position of Deputy Chairman, Maprik- Wora Village Court in the Maprik- Wora Local Level Government.
    
24. Taking into account all the submissions put before the court, the most significant aggravating factor is that a life was lost at the hands of the prisoner which cannot be brought back. Dignity and value to human life are fundamental aspects of right to life enshrined in our constitution. No person has the right to take away the life of another, human life is so precious than anything else. Therefore our Criminal Code which creates offences against humanity is intended to give effect to the aspirations of the constitution and to many International conventions and Declarations on right to life and human dignity.
    

CONSIDERATIONS

25. Actions of the prisoner in throwing a knife spear which is a dangerous weapon, aimed at his son in-law during a group fight was dangerous and reckless under the circumstances. This is because there were many people involved in the fight and the knife spear was likely to hit someone else other than his son in-law, and that is exactly what happened. The knife spear missed his son in-law and instead hit the deceased Alson Pitau on the head penetrating his skull resulting in his death. The prisoner being an elderly person ought to have known the likely consequence of what may happen and should have exercised restraint and self-control.
    
26. But I take into account that it was the prisoner’s son in law who first threw the knife spear at him but missed with only cuts to his hand. Prisoner picked up the same spear and threw it back at his son in-law but missed and instead hit the deceased on the head. This in my view was an act of extra-ordinary emergency because his life was in imminent danger at that moment. In extra-ordinary circumstances one would not just stand or sit back when he or she is targeted or attacked. Natural instinct would dictate whether you stand your ground and defend yourself or you escape for your life. In this case the prisoner stood his ground. I am also of the view that there were elements of provocation and self-defense in this case and that the prisoner did not have the necessary intent to do grievous bodily harm to the deceased. There was no deliberate intention to kill him. But this contention is weakened by Section 300 (2) of the Criminal Code which reads:
    

‘’ In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.’’

27. The effect of this is that having no intent to hurt or do grievous bodily harm is no bar or defense to criminal liability under Section 300 (1) (a) of the Criminal Code.
    
28. In any case the prisoner had pleaded guilty to the charge and was convicted and this has saved court time and resources to run a trial had he pleaded not guilty. I also note that he is a first time offender and has no prior convictions recorded against him meaning that he has been a law abiding citizen during his lifetime, living a normal village life until this incident. He has shown great remorse for what he did and is very regretful because the deceased is his close relative, a cousin and they are both from the same clan.
    
29. Since death of the deceased, prisoner has taken over the responsibility of looking after deceased’s family which in my view is a remarkable thing to do. This clearly demonstrates his remorsefulness and close and great kinsman-ship in the family ties he has with the deceased and that what he did to the deceased was not deliberate.
    
30. I commend the writer of the Pre-Sentence Report who did wide consultation in the community particularly with the relatives and family members of both the prisoner and deceased. Community view is that the prisoner is a leader in the community and should be released and put on probation because he has already paid compensation of K15, 850.00 in both cash and kind. A further reconciliation ceremony is scheduled to take place in July of this year 2019.
    
31. I also note the prisoner is of advanced age who is now 64 years old and the Pre- Sentence Report shows that he would not be of any danger or threat to the community if released and placed on probation supervision.
    
32. If there is any guide to use in sentencing the prisoner who is 64 years old now, then I need not look further that the case of State v Kepas [2007] N3192. In this case His Honour Cannings J, in sentencing an offender who was 61 years old took into account the offenders advanced age and imposed a sentence which was almost half the starting point. The facts were that the offender pleaded guilty to the offence of persistent sexual abuse of a ten (10) year old girl, who was his adopted daughter. The abuse occurred over a period of four (4) months. His Honour held that sentence for such sexual offence should range between 25-30 years imprisonment. His Honour however, after considering the prisoners old age of 61 years, sentenced him to 11 years and 11 months.
    
33. Thus in the final analysis, sentence for the prisoner in my view would fall in category 2 of the suggestions made by the Supreme Court in the Manu Kovi case for reasons that although a dangerous weapon was used and the attack was vicious, there was no pre-planning involved and that the prisoner did not deliberately killed the deceased. Sentencing tariff in this category is 16- 20 years imprisonment. I am of the view that for the present case, a sentence in the lower range of category 2 which is 16 years would be an appropriate term of imprisonment for the prisoner. However the court still retains the discretion under Section 19 of the Criminal Code to consider alternative options for sentencing considering the prisoners advanced age and the circumstances of this case.
    
34. I accept the recommendations in the Pre-sentence report and share the view that a non-custodial sentence would be appropriate. I will therefore impose a community based non-custodial sentence for the prisoner with orders for community work.
    

SENTENCING ORDERS

35. I therefore make the following sentencing orders that:
    
    • (a) Prisoner is sentenced to 14 years ILL less 8 month spent in pre-trial custody. Leaving a balance of 13 years 4 months.
      
    • (b) 4 years are suspended on mitigating factors and by reason of prisoners advanced age. Leaving a balance of 9 years and 4 months which is wholly suspended with conditions that:
      
      • (i) Prisoner shall do community work for 4 hours each week for the duration of the first 24 months of the suspended sentence to be supervised by the Probation Services office in Maprik.
        
      • (ii) Prisoner shall keep peace and be of good behavior for the first 24 months of the suspended sentence.
        
      • (iii) Prisoner shall make further reconciliation ceremony with the family of the deceased before end of December 2019 to be supervised by the Probation Services office in Maprik.
        
    • (c) Prisoners bail monies to be refunded forthwith.
      

Sentenced Accordingly
________________________________________________________________
Public Prosecutor: Lawyer for the Sate
Public Solicitor: Lawyer for the Accused