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State v Kanjip (No. 2) [2021] PGNC 368; N9181 (22 September 2021)

N9181

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 176 OF 2020

THE STATE

V

MANJANG KANJIP
(No 2)

Lae: Kangwia J.
2021: 17^th & 22^nd September

CRIMINAL LAW – Murder – Merciless unprovoked killing - Digging iron used to bludgeon deceased on head causing cervical spial injury – Strong intention to cause grievous bodily harm – Depart from category two guidelines in Manu Kovi – Sentenced to 28 years

Cases Cited

Manu Kovi v the State (2005) SC789
Lawrence Simbe –v- State [1994] PNGLR 88
State v Timothy Sangai (2016) N6247
State v Clement Watete (2017) N6969
State v Mailong Pinapang (2017) N6616
State v Alois Lagu (2011) N4354
Mikoro v the State (2015) SC 1424

Counsel:
P. Matana, for the State
G. Peu, for the Accused

22^nd September, 2021

1. KANGWIA J: Manjang Kanjip appears as a prisoner for sentence. He was convicted after a trial for the murder of one Mengano Karimin pursuant to s300 of the Criminal Code Act (CCA). The State alleged that the prisoner bludgeoned the accused with a digging iron in the deceased garden and concealed the body with a stone near a river.
   
2. The medical report showed that the deceased died from cervical spine injury and blunt force head trauma.
   
3. The prisoner is aged 38 years old and married with 03 children.
   
4. He is a villager. He has no prior convictions. On his allocutus he elected to remain silent.
   
5. On his behalf Ms Peu sought a head sentence of 20 to 25 years imprisonment as this case fell into the 2nd and 3rd category of the guidelines in Manu Kovi v the State (2005) SC789 which suggested sentences between 16 and 30 years.
   
6. He cooperated with police and was a first-time offender. Even though this case displayed a strong intention to do grievous bodily harm it was not serious as the deceased was struck only once on the head. Several cases were referred to as possible guides in sentencing.
   
7. For the State Ms Patana also submitted for a sentence of 20 to 25 years even though the case fell into the 2^nd category of the Manu Kovi guidelines. There was a loss of life in a vicious, senseless killing without any justification. A digging iron was used as a weapon and the deceased was struck on the head, a vulnerable part of the body. There was a deliberate intention to do harm with total disregard for human life. The body was concealed with a rock near a creek. The offence was prevalent in the Bulolo area. Several cases were also referred to as possible guides in sentencing.
   
8. Murder under s 300 of the CCA prescribes a maximum penalty of life imprisonment. It is the second most serious homicide.
   
9. Pursuant to this provision the prisoner stands liable to be sentenced to life imprisonment. However, the Court has discretion under s 19 CCA to impose other sentences. It augurs well with what the Supreme Court in the case of Lawrence Simbe –v- State [1994] PNGLR 88 said:
   

“Each case of murder must be decided on a case-by-case basis, but always remembering that the sentence laid down by s.300 is life imprisonment and the term of years is by virtue of s.19.”

10. It is also a principle of law that the maximum is reserved for the worst category of each offence. Worst category can be discerned from the facts and circumstances in each case.
    
11. Courts are continuing to impose varying sentences for Murder. The guidelines and tariffs suggested in Manu Kovi are readily applied. Despite criticisms the guidelines and tariffs suggested in that case are still good law.
    
12. There is no inhibition to depart from those guidelines as sentencing is an exercise of discretion. Sentencing discretion would naturally determine how high or low a sentence would be.
    
13. In the case of State v Timothy Sangai (2016) N6247 where the offender bludgeoned the deceased with the blunt side of an axe causing brain matter to spill was sentenced to 20 years.
    
14. The State v Clement Watete (2017) N6969 the prisoner who pleaded guilty to murder for cutting his father’s neck nearly severing it was sentenced to 16 years with deductions.
    
15. In the State v Mailong Pinapang (2017) N6616 the prisoner who pleaded guilty to cutting the neck of his adopted mother was sentenced to 21 years.
    
16. In the State v Alois Lagu (2011) N4354 where the offender stabbed the deceased on the chest causing death was sentenced to 20 years with deductions.
    
17. In Mikoro v the State (2015) SC 1424 Supreme Court dismissed an appeal against a sentence of 20 years for slashing to death an innocent person.
    
18. The cited cases and the cases referred to by both counsels reflect the position of the Courts to treat Murder offences seriously with high sentences. The sanctity of life is a paramount consideration in sentencing. Life is precious and to lose it in such fashion is a tragedy that deserves adequate punishment. Deterrence must also be reflected in the sentence to be imposed.
    
19. The present case involved a wanton killing in a vicious and surprise attack on an unsuspecting person. There is no evidence of any provocation. Whatever the reason for the killing, only the prisoner knows. He gave no explanation by his election to remain mute after witnesses gave incriminating evidence against him. This case is similar in nature to the ‘Timothy Sangai’ case where the victims in both cases were bludgeoned to death. In that case there was provocation present. This case has nothing to show for the killing.
    
20. Under these circumstances the only conclusion is that the prisoner brutally and mercilessly murdered an innocent man. He approached the deceased from the back and struck him on the head. The medical report by Dr Yupae showed cervical spine injury by a blunt force head trauma.
    
21. The only mitigating factor is that he is a first-time offender. That falls into insignificance by the severity of the injuries which culminated in the death. A single blow does not operate in his favor as the result was a loss of a life. Life is precious to all including the prisoner and must be preserved.
    
22. The offence is prevalent. It is more prevalent in Bulolo as shown by the number of cases dealt with this month. In the three-week circuit in Bulolo the Court dealt with 11 cases of homicides. That is 11 humans gone forever.
    
23. Wanton killings like the present case must be deterred for society to live peacefully.
    
24. This case falls into the 2nd category of the Manu Kovi guidelines. Even though the highest tariff under category two is 20 years the circumstance of this case persuades me to depart from the category two guidelines. A sentence higher is appropriate. The death was the result of an unprovoked merciless killing of an unsuspecting innocent victim. The now prisoner led the court to an irrelevant trial that ended with him electing to remain mute. Election to remain silent is a right but that but cannot operate at the expense of others who could be doing something else instead of dwelling on his misdeeds.
    
25. The prisoner is sentenced to 28 years imprisonment. The time spent in pre-trial custody shall be deducted. He shall serve the balance at CIS Buimo.

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