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State v Dani [2020] PGNC 254; N8469 (19 August 2020)

N8469

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1354 & 1401 OF 2019

THE STATE

v

SAWA DANI & LORETA SAWA
(NO.2)
Prisoners

Madang: Geita J
2020: 13^th & 19^th August

CRIMINAL LAW – Sentence after trial - Murder s. 300 (1)(a) Criminal Code – Prisoner cut his cousin brother with a bush knife, causing him to bleed to death over a family land dispute – Prisoner’s wife aided her husband to commit the crime.
CRIMINAL LAW – Sentence – Aggravating factors slightly outweigh mitigating factors – Humanitarian and compassionate factors considered – Wife/Prisoner found guilty by operation of s.7 Criminal Code Act – Her part in this crime is minimal, so should her sentence- Wife/Prisoner sentenced to 10 years but wholly suspended on Probation with conditions - Husband/ Prisoner sentenced to 18 years less pretrial custody period available to him - Section 300 (1)(a) Criminal Code.

CRIMINAL LAW & PRACTISE –Sentence –Court’s exercise of discretion on humanitarian and compassionate grounds not to be seen as abrogating its judicial responsibilities in sentencing.

Cases Cited

Anna Max Marangi v The State (2002) SC 702
Avia Aihi v The State (No.3) [1982] PNGLR 92
GoliGolu v The State [1979] PNGLR 653
Lawrence Simbe v The State[2005] SC789
Manu Kovi v The State [2005]SC 789
Setep v The State [2001] SC666
St v Junior Paul Paina[2015] N5869.
The State v Jack Mek[1997]N1575
The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal [2012] N4591
The State v Wellington Balewa [1988-89] PNGLR 496

Counsel:

Ms Deborah Ambuk,for the State.
MrJohn Zauya, for the prisoners

JUDGMENT ON SENTENCE

19^th August, 2020

1. GEITA J: The prisoners were found guilty after trial on 6 August 2020 for the murder of Kuya Masai. The offence comes under section 300 (1)(a) Criminal Code and attracts a maximum life imprisonment.

Brief Facts

2. The brief facts are these: On 27 August 2019 at Bom village in the Rai Coast District of Madang, the husband and wife prisoners murdered Kuya Masai. The dispute arose over a family plot of land said to be owned by the Prisoners. Upon learning that their newly planted garden produce was destroyed by the deceased. The wife prisoner summoned her husband to come and see what had happened. Upon the two prisoners arriving at the garden, the two brothers fought in which the Prisoner cut his brother with a bush knife which led to his death, due to loss of blood. All along the wife prisoner was encouraging her husband to cut the deceased.

Criminal History

3. No prior convictions have been recorded against your names and I accept that position as presented to me by the Public Prosecutor.

Allocutus

4. In your allocutus or when you were asked if you had anything to say about the punishment that should be considered, you said this was your first time to appear before a National Court and you asked for leniency. You further said you assaulted the deceased in self-defence. You apologised to the Court, to the lawyers and to the deceased’s wife and family. You said you were sorry for breaking the law and asked to be considered for probation. As for Loreta, you apologised to Court and said you have two infant children without a mother. You asked to be put on probation in the interest of your children.

Mitigation Circumstances
5. In mitigation, the following factors are in your favour:

1. No prior convictions, first time offenders
2. Remorse
3. Some element of de facto provocation in a legal sense
4. Co-operated with police
5. Some form of bel kol compensation paid to the deceased family.

Aggravating circumstances.

6. The following are the aggravating factors:
   

1. Prevalence of the offence

2. Loss of life

3. Dangerous weapon used

4. Some element of intention, attack vicious

Pre- Sentence Report.

7. A pre-sentence report was prepared and submitted on your behalf by Probation Officer Heather Herman 17/8/2020. Both your suitability for probation was treated with caution by the Probation Office on the grounds that she sensed some tension between your two families and your community. This is despite the payment of some bel kol monies of K2265.00, 2 live pigs and food stuff. You both have since abandoned your 2 infant children (aged 2 years – 11 months) as a result of your incarceration and serious concerns are now raised for their welfare and upbringing. You both are semi illiterate and live on subsistence farming. The deceased’s brother has refused to accept the ‘bel kol’ monies and demands some higher amount. The deceased’s wife and children on the other hand have willingly accepted your offer of ‘belkol’as her children need that support.

8. Your family members, including your mother are desirous to have you out from prison so that you both can look after your two infant children. The deceased’s family members remain undivided as to the amount of ‘bel kol’, save for the deceased’s widow who has agreed to accept your offer of compensation. As I understand from the pre-sentence report the deceased’s family members have not readily assisted the widow and her children, since the death of the deceased. The Probation Officer has pleaded on your behalf for a non-custodial sentence for the sake of your two infant children. After getting the views of your family members and your community the Probation Officer has expressed some concern that both your safety outside the prison is not considered to be safe.

Submissions on Sentence – Defence

9. Defence Lawyer Mr. John Zauya submitted that in light of both prisoner’s favourable mitigating factors together with some element of de facto provocation, the lower end of category two in the sentencing guidelines for murder in Manu Kovi v The State (2005) SC 789 be considered: Between 16 – 20 years. He submitted that the prisoners were simple unsophisticated villagers and they have two infant children. He submitted that a sentence of 10 years with probation be considered for both prisoners. In support of his argument he referred the Court to the case of The State v Jack Mek (1997) N1575: The Prisoner, a youth in his early 20s was sentenced after trial for murder to 8 years imprisonment. He axed his stepfather (his deceased biological father’s brother) to death after he sided with his mother in an argument with the deceased over the prisoner’s sister. Furthermore, he relied on the case of State v Junior Paul Paina (2015) N5869.The offender was convicted after trial of the murder of a fellow villager under Section 300(1)(a) of the Criminal Code. The deceased was a man who had stolen betel nut from the offender earlier in the day. The accused admitted cutting him with a bush knife and causing his death, and raised the defences of self-defence and provocation, which were rejected at the trial. He was sentenced to 16 years. Mr Zauya submitted that the court adopt the sentencing ranges applied in those two cases.

10 Mr. Zauya correctly pointed out that the maximum penalty not to be considered in this case but to be imposed only on worst types of cases. (Avia Aihi v The State (No.3) [1982] PNGLR 92; Goli Golu v The State [1979] PNGLR 653 and Setep v The State [2001] SC666.)The case of Lawrence Simbe v The State[2005] SC789 was also relied on by defence counsel: That case holds the proposition that every case shall be decided based on its own merits and peculiar circumstances, to which I whole heartedly agree.

Submissions on Sentence – State

11. On behalf the Prosecution Ms Ambuk submitted that the crime was serious and prevalent in the province and called for a deterrence sentence of between 16 – 20 years. She submitted that this case falls between category 2 and 3 of Manu Kovi sentencing tariffs. The Prisoner had the intention to cause harm, he used an offensive weapon, a bush knife and there was some element of pre-planning. Furthermore, the injuries sustained were vicious. The prosecution concede that the prisoners were first time offenders and have paid some amount of compensation, such was paid on the 11^th hour after trial and conviction. She argued that such actions should not be accepted as sincere remorse and ought not be heavily relied upon in mitigation. Courts have said on many occasions in the past that last ditch attempts to pay compensation in an attempt to avoid sentence, and plead leniency is not genuine remorse: (The State v Wellington Balewa [1988-89] PNGLR 496). In another case: The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal [2012] N4591, Madang. This was a trial matter in which four offenders were convicted after a joint trial of the wilful murder of a man committed during a fight between two groups of people – the sentences reflected their varying degrees of involvement: 20 years, 20 years, 30 years and 17 years.

12. Ms Ambuk submitted that a comparable sentence in this case would be 20 years for Sawa Dani and 17 years for Loreta Sawa. Both prisoners should not be allowed on probation or receive any suspended sentence.
13. For ease of reference, I have included the sentencing tariff in part:

Manu Kovi Sentencing Tariffs.

SCHEDULE

SENTENCING TARIFF FOR MURDER OFFENCES

Appropriate sentence in this case?

14. Both Counsel were heard on submissions. I also have had the benefit of a pre-sentence report presented to me including the very helpful cases. For the moment I am satisfied that the crime committed falls within the mid-range of category 2, Manu Kovi sentencing tariff. The prisoner’s intention to cause harm was present, an offensive weapon, a bush knife was used and there was some element of preplanning including the vicious attack. The prisoner’s aggravating factors slightly outweigh their mitigating factors. I am mindful that the prisoners were unsophisticated villagers and now concerned for their infant children. A wrong has been committed and they must be made accountable for that wrong.

15. I am satisfied that there was a strong element of de facto provocation due to the deceased uprooting the offender’s betel nut trees and newly planted cash crops. Prisoner Loreta is a first-time offender; some compensation has been paid. The prisoner’s plea for leniency for the sake of her two infant children is noted. Loreta has been found guilty of murder by operation of s.7 Criminal Code Act. In law she is called a principal offender. This was a family dispute over a portion of land, gone horribly wrong resulting in the husband/wife prisoners now charged. Loreta has been incarcerated since her arrest and charge for over 12 months. Her infant children have been denied their mother’s love and care. To my mind a differing sentence ought to be considered for her, based on compassionate and humanitarian grounds. I say this with a lot of caution on my part as not to be seen as abrogating from my judicial responsibilities on sentencing. For the moment the part she played in this crime remains minimal, so should her sentence be. Her case is a suitable one which fall under the scope of Court exercising its judicial discretion by invoking s.19 of the Criminal Code Act. A rehabilitative part non-custodial sentence will be imposed with conditions for her.

16. As for the husband prisoner a deterrence sentence is deemed appropriate under the circumstances. Although he had the opportunity for his enraged passion to cool down from the walk down to the damaged garden, he let loose with much coaching from Loreta. This was a family land dispute and they have always resolved their disputes amicably before. Although I am mindful that his family will suffer, at least his wife will be out and about to attend to their family welfare. I note also that some compensation has been paid. I note also that he is a first-time offender. As to his sincerity in expressing remorse to the deceased and his family, I am not convinced that the husband prisoner was genuinely remorseful. During allocutus, he still maintained that the wound on the deceased was self-inflicting. As to his concerns for his young children, mothers are closest to children and if there are any considerations for a suspended sentence, it should favour the mother, Loreta. Might I add here that last minute desperate attempts to make restitution and shallow attempts to make remorse in these types of cases also should have little or no weight when considering appropriate sentences?

17. Now considering this case on its own facts and circumstances it is clear to me that the degree of seriousness of the crime committed in this case is very minimal. It follows that it should not attract the maximum life sentence. My task as trial and sentencing judge is exercised judicially based on all evidence before me from both sides. Each case is different with peculiar circumstances and in most situations will ultimately determine the kind of sentence that must be imposed. I take judicial notice of the two cases referred to me by defence, however, they are distinguished in this case.

Sentence

18. Due to the foregoing reasons, I consider that the appropriate head sentence in respect of this crime to be within the mid-range: 18 years less pretrial custody periods available to the Prisoners.

Orders accordingly.

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoners