State v Gumbuli [2021] PGNC 360; N8962 (19 March 2021)

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PRACTICE AND PROCEDURE – Criminal Law – Murder – What is the appropriate sentence - S.300 of the Code Act – Sentence 16 years – Compensation Paid – Plea.

Anna Max Marangi (2002) SC 702
Manu Kovi -v- The State (2005) SC789
State -v- David Solomon Lingen CR. No.1292 of 2009
The State -v- Junior Paul Paina [2015] PGNC 12; N5867
The State -v- Wakare [2007] PNGLR PNGC6; N3222
The State -v- Vito Piam& Wesley Binap CR 1882 of 2016 & CR 1883 of 2016
The State -v- Taria [2014] PNGLR 293; N5928

4. A fight ensued between the accused and the deceased where the accused used a bush knife and cut the deceased’s chest extending to her abdominal area. The deceased went home and informed her husband about her injury.

5. After some time, the accused armed with a bush knife went to the deceased’s home and cut her again on her hand.

6. The deceased suffered deep lacerations to her head and chest and abdominal area which resulted in moderate to severe bleeding.

7. The deceased suffered from her injuries and died a few hours later while on her way to Kaugia Health Sub Centre.

8. Having read the committal file on the matter, I confirmed the plea of guilty.

9. It is clear from the antecedent report that the offender has no prior conviction.

10. In his allocutus, the offender expressed sincere remorse for the offence he committed and asked the Court to be lenient on him when passing sentence.

11. A pre-sentence report was prepared by Ms. Dollie Hasu the Maprik Office of Probation and Parole filed 8^thMarch, 2021.

12. The pre-sentence report says that; although the offender was facing difficulties, he was able to raise the sum of K10,040.00 together with traditional shell money worth K500.00. The money was raised with the assistance of his relatives and given to the family of the deceased.

13. For the purposes of sentence, the pre-sentence report provides personal particulars of the offender as follows:

14. Mr. S. Parihau submitted that given the special circumstances of this case, the offender be sentenced to imprisonment for a period of 13 years and in doing so I should consider the mitigating factors in favour of the prisoner.

15. The State through Ms. T. Aihi submitted that the prisoner be given 18 years sentence.

16. In determining the appropriate penalty it is best to ask what the starting point is, sentences previously imposed for similar offences, the head sentence, whether any pre-sentence period in custody be deducted and, whether whole of the sentence be suspended.

17. These guidelines are noted in the decision of Cannings J in The State -v- Junior Paul Pina [2015] PGNC 12; N5867 (19^th February 2015).

19. The sentencing guidelines for murder cases have been settled in the case of Manu Kovi -v- The State (2005) SC789 per Injia DCJ, Lenalia & Lay JJ. These are as follows:

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent do grievous bodily harm	12-15 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years
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 weapons used, eg. gun axe – other offences of violence committed.	20-30 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard of human life.	Life imprisonment

20. Applying the sentencing principles in Manu Kovi -v- The State (Supra), I consider that this case falls within Category 2 in that the prisoner was armed with a bush knife and inflicted initial wounds around the area of the chest to her abdomen. He later went to the house of the deceased and slashed her in the area of head.

22. Mr. Parihau submitted that I take into consideration the mitigating factors that the prisoner pleaded guilty in Court and in the record of interview, first time offender, surrendered to and co-operated well with Police, planned remorse in allocutus and his voluntarily paid to the sum of K10,040.00 together with traditional ring money worth K500.00.

23. Ms. T. Aihi agreed with this but added that there is a presence of defacto relationship.

24. Ms. T. Aihi, however, submitted that the aggravating factors are that a life had been lost, an offensive or dangerous weapon in the form of a bush knife was used by the prisoner to achieve his criminal intent, the assault was repeated which is evidence of the prisoner’s intention to cause grievous bodily harm.

25. Considering all of these factors, I accept the submission of Ms. T. Aihi that a sentence of 16 to 20 years is the starting point.

26. In the case of The State -v- Junior Paul Paina (2015) N5867, Cannings J said and I quote:

“This is the sort of case that with a guilty plea or payment of More compensation .. a partial suspension would be justified. But the offender took the matter to trial and as the deceased relatives said no ‘real’ compensation has been paid. In a homicide case the attitude of the deceased’s relatives is a very important consideration to take up when deciding whether to suspend any or all of the sentence...”

27. In a similar case of the State -v- David Solomon Lingen CR. No.1292 of 2009 Wewak, Kandakasi J (as he then was) where the prisoner murdered the deceased by cutting his neck and face with a bush knife, resulting in severe injury and loss of blood, His Honor sentenced the prisoner to 18 years imprisonment under Category 3 of the Manu Kovi case.

28. In The State -v- Wakore [2007] PGNC 61; N3222 the prisoner entered a guilty plea and 12 year imprisonment was imposed, a case in which the prisoner did not intend to kill the victim. He only intended to cause grievous bodily harm. Death was an unexpected visitor.

29. In the case of Auna Max Marangi, (2002) SC 702, which was referred to by His Honor Salika DCJ (as he then was) in The State -v- Vito Piam & Wesley Binap CR 1882 of 2016 & CR 1883 of 2016. The Supreme Court ruled: “that death caused by a single or multiple stab wounds on the body, neck, chest or abdomen or on any other vulnerable part of the body without any aggravating factors would attract between 8 to 12 years imprisonment. The Supreme Court also said that cases involving application of direct force in a calculated manner on the body using a knife or axe and death resulted would, attract 15 to 16 years imprisonment”.

30. In The State -v- Taria [2014] PGNC 293; N5928, where the prisoner killed his wife after badly beating her, a sentence of 13 years was imposed part of which was suspended.

31. I have given consideration and have drawn the conclusion that; because the prisoner did not intend to kill but to merely cause grievous bodily harm which resulted in the death of the deceased, I have imposed the sentence of 16 years imprisonment with hard labour because there is evidence of force in calculated manner using a knife to wound the deceased resulting in death.

32. The presentence period (of being in custody) of 1 year 4 months 2 weeks and 4 days will be deducted from the head sentence thereby reducing it to 14 years 8 months.

33. Mr. Parihau asked the Court I exercise my discretion to suspend part of that sentence.

34. I consider that because the prisoner has made payment the sum of K10,040.00 and traditional shell money worth K500.00, part of the sentence be reduced by 4 years.

35. The prisoner having been convicted of the crime of murder under Section 300(1) (a) of the Criminal Code, is sentenced as follows:

Length of Sentence	16 yrs
Pre Sentence period to be deducted	1 year 4 months 2 weeks 2 days
Resultant length of sentence	15 years, 7 months, 2 weeks and 3 days
Length of sentence suspended	4 yrs
Total Sentence to be served	11 years 7 months 2 weeks 3 days

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Public Prosecutor: Lawyers for The State

National Court of Papua New Guinea

State v Gumbuli [2021] PGNC 360; N8962 (19 March 2021)