N9118

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 273 OF 2021

STATE

V

IW (A JUVENILE)

Waigani: Wawun-Kuvi, AJ
2021: 16th, 30th August, 1st & 3rd September
DISCLAMIER- Every effort has been made to comply with statutory provisions particularly section 112 of the Juvenile Courts Act 2014, prohibiting publication that apply to this judgement. The responsibility remains on any person using material in the judgement to ensure that the intended use of the material does not breach any such provision.      
CRIMINAL LAW-SENTENCE-JUVENILE-Guilty Plea-Murder, s 300(1)(a) Criminal Code- Application of the Juvenile Justice Act

Cases Cited

The State v A.W.P.(A Juvenile) (2021) CR 29 (JJ) Unreported(1 September 2021)
State v Hago [2019] PGNC: N7870
State v Soni [2019] PGNC 84; N7776 
State v Talingapua [2019] PGNC 73; N7734 
State v CJ (A Juvenile) [2018] PGNC 491; N7610 
State v FT (A Juvenile) [2016] PGNC 238; N6435
State v Kogen [2016] PGNC 39; N6211 
State v Wamingi [2013] PGNC 329; N5723 
State v Wakupa [2012] PGNC 229; N4783 
State v FSD [2011] PGNC 164; N4456 
Yalibakut v State [2006] PGSC 27; SC890
Manu Kovi v The State (2005) SC 789
Dambui v The State [2003] PGSC 20; SC724 
Gima v The State [ 2003] SC 730
State v Winston [2003] PGNC 146; N2347
State v Wangu [2001] PGNC 34; N2170 (12 December 2001)
Parkop and Make v The State [1999] PGSC 24; SC621 (23 August 1999)
Public Prosecutor v Hale [1998] SC 564
State v Mek [1997] PGNC 32; N1575 (21 March 1997)
The State v. Aruve Waiba [1994] CR1/94(Unreported and Unnumbered)
State v Kagai [1987] PNGLR 320	
State v Tardrew [1986] PNGLR 91
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Public Prosecutor v Sima Kone [1979] PNGLR 294.

References

Criminal Code Ch 262
Criminal Justice (Sentences) Act
Juvenile Justice Act 2014
Probation Act 1979
United Nations Convention on the Rights of a Child
Counsel
Ms Mercy Tamate and Mr Nathan Pare, for the State
Mr Fabian Timbi, for the Juvenile

SENTENCE

3rd September, 2021

1.	WAWUN-KUVI, AJ: On 5 March 2019, IW(Juvenile) was a 17-year-old seeking answers over the assault of his father. Sometime between 6.00 pm and 7.00 pm, IW (Juvenile), JT, RE along with two others proceeded to [X] Street at [X] Mile in the National Capital District. When they arrived, the deceased charged at them armed with a machete, more commonly referred to in Papua New Guinea as a bush knife. The deceased slashed JT. RE then swung a bush knife at the deceased. The deceased diverted his attention towards RE swung his knife and in almost dramatic effect both knives collided. Instinctively IW(Juvenile) charged towards the deceased and slashed him. He and the other men then got in a taxi and fled the scene. The deceased was rushed to the hospital where he succumbed to his injuries. 
2.	IW (Juvenile) pleaded guilty to the charge of murder pursuant to section 300(1)(a) of the Criminal Code (Code) based on the above facts. I am now to decide on penalty.
Sentencing in the case of a Juvenile
3.	Papua New Guinea is a signatory to the United Nations Convention on the Rights of a Child (UNCRC). Article 37 (b) requires that where a child is imprisoned, the imprisonment must be in accordance with the law and must be for the shortest appropriate period of time.

4.	In line with our international obligations, the Juvenile Justice Act 2014 (JJA) under Part VII, sets out the mandatory requirements when sentencing a juvenile. 
Prohibition of certain forms of punishment.
5.	Article 37 (a) UNCRC and section 85 JJA prohibit the following sentences for juveniles:
•	corporal punishment
•	life imprisonment
•	capital punishment.
6.	Restrictions on imprisonment under section 81 of the JJA are not automatically applicable to National Court Orders for sentences. Section 80 (n) and (p) in my view must be read together so as to come to the conclusion that the National Court may consider alternatives to imprisonment. This would be in line with the spirit of the JJA.

7.	Section 80 (1) (p) empowers the National Court in the exercise of its discretion to impose a sentence similar to an adult who has committed a similar offence under similar circumstance.

8.	The discretion is however exercised within the framework of the JJA.
Purpose of Sentencing for Juveniles
9.	When sentencing a Juvenile, the Court must have regard to the following principles:
•	For avoidance of labeling and stigma, the dignity and privacy of juveniles shall be respected at all times, and
•	The sentence must encourage the juvenile to understand the consequences of and be accountable for the harm caused by his or her actions; and
•	The Sentence must promote an individual response which is appropriate to the juvenile's circumstances and proportionate to the circumstances surrounding the offence; and
•	The sentence must promote the rehabilitation and reintegration of the juvenile into the family and community; and
•	The sentence must ensure protection of the public.
10.	The Court must also ensure that:
•	the sentence shall have regard to the juvenile's age and limited capacity to appreciate the consequences of his or her actions; and
•	the sentence shall not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; and
•	if appropriate, juveniles shall be permitted to remain in the community; and
•	deprivation of liberty shall be used only as a measure of last resort, for the shortest period necessary to achieve the purposes of sentencing for a juvenile .
Factors to be considered in the case of a juvenile
11.	The factors for the Court to consider are:
•	the seriousness of the offence and the circumstances in which it was committed; and
•	the degree of participation of the juvenile in the commission of the offence; and
•	the harm done to the victim and whether it was intentional or reasonably foreseeable; and
•	the age, maturity, education, health, character and attitude of the juvenile; and
•	the juvenile's previous history in respect of offences and his or her responses to previous orders in relation to those offences; and
•	the community services and facilities that are available to assist the juvenile and his or her willingness to use those services or facilities; and
•	any proposals that the juvenile or his or her parents may put forward for the future improvement of the juvenile; and
•	any views of a juvenile justice officer in relation to the juvenile; and
•	any views of any person who is involved in the education or custody of the juvenile; and
•	information contained in a pre-sentencing report; and
•	any sentencing recommendations made by a community-based conference; and
•	any time spent by the juvenile in custody on remand in relation to the offence; and
•	any other factor that the Court considers relevant.

Penalty

12.	The maximum penalty for Murder under section 300(1) of the Code is life imprisonment. The sentence for life is subject to section 19 of the Code.

13.	Due to the prohibitions under the law, a juvenile cannot be sentenced to life imprisonment.
Personal Antecedents
14.	At the time of the offence, IW (Juvenile) was 17 years old. He is presently 19 years old. He is from [I], [District], [Province]. He attended primary school in [X] school where he completed Grade 6. He was financially supported by his parents.
Allocutus
15.	IW (Juvenile) in Allocutus stated:
“I thank the Court for hearing for my case. I thank the lawyers for hearing my case. I sincerely apologize for the offence I committed. I am the only child in the family and my family will also rely on me. And I ask the Court to consider what I said and give me a sentence that I can spend and get released. I say sorry to the deceased and his family and my family.”

16.	 I find from his last statement that he has fully appreciated the gravity of offence that he has committed and the consequences. From his early cooperation with police and his final plea, I accept that he is truly remorseful: see Kalabus v The State [1988] as to genuineness of remorse and contrition.

Submissions by the Defense

17.	Mr. Timbi for the juvenile contends for a term of imprisonment between 8 to 10 years. He submits that this is consistent with the sentencing trends. He relies on the following cases.

18.	State v Soni [2019], Gora AJ: the prisoner pleaded guilty. The prisoner was 64 years old at the time of the offence. This was a domestic dispute. The brother of the deceased threw a spear knife and the prisoner which cut the prisoner’s hand. The prisoner picked up the same knife and threw it at the brother of the deceased. The knife missed and struck the deceased head. The prisoner was sentenced to 14 years imprisonment. However, as a result of the favorable pre-sentence report and the advanced age of the offender, the whole sentence was suspended on conditions.

19.	State v Wangu [2001], Kandakasi J: The prisoner cut the deceased with a bush knife three times on the body. There was some evidence that the deceased was unarmed and there was also evidence that the prisoner’s reasons where over an alleged rape perpetrated by the deceased on the prisoner’s sister-in-law. The age of the offender was not stated. He was sentenced to 10 years imprisonment. No part  of the sentence was suspended.

20.	Parkop and Make v The State [1999]: The Supreme Court upheld a sentence of 10 years. The appellants appealed against the sentence being excessive. They pleaded guilty for a group attack on one of their clansmen over a dispute relating to customary land. The deceased was attacked with bush knives and sticks.
21.	State v Mek [1997], Injia J: The prisoner pleaded guilty to murder pursuant to section 300 (1) (a) of the Code. He was a first-time offender and a simple villager. His age was estimated to be in the early 20’s. His stepfather and his biological father are brothers. His mother married his stepfather when he was a young child. He took his mother’s side in an argument between his mother and stepfather. He struck his stepfather several times in the head with an axe. The Court considered his age and the factors that were in his favour and sentenced him to 8 years imprisonment. No part of the sentence was suspended considering the gravity of the offence and the high degree of culpability.

22.	All the cases relied on by Mr Timbi involve adult offenders with no discussions pertaining to sentencing considerations for Juvenile offenders. Whilst an analogy can be drawn as to the type of sentences that are received by adult offenders, that was an analogy that counsel should have drawn in his submission.

23.	The only case in which Mr Timbi cites which involves a juvenile was the case of State v CJ (A Juvenile) [2018] presided by Toliken, J. The juvenile pleaded guilty. He was a first-time offender. The juvenile was with others. They were angry over an incident that happened the previous day when the victim damaged one of his friend’s market table. They chased the victim and the juvenile stabbed him in the back with a knife. The victim died as a result of the injury sustained. The Court applied the process within the JJA and sentenced the juvenile to 10 years imprisonment. No part of the sentence was suspended as the Court found that there was a high degree of culpability.

24.	The case of State v CJ (A Juvenile) (supra) bears similarities to the present case and principles of the JJA were applied in determining sentence. The difference is that in State v CJ (A Juvenile), the victim was unarmed and posed no threat to the prisoner.

25.	He further relies on the JJA but merely copies and pastes sections without any discussion as to how it is applicable to his client’s case.

26.	He finally contends that the Court consider suspension and cites the principles in the State v Tardrew [1986] PNGLR 91. He does not identify the factors in his client’s case that may warrant suspension but generally submits that the peculiar circumstance of his client’s case justifies suspension.
The State’s submissions
27.	Mr. Pare for the State submits for a term of imprisonment between 12-14 years. He contends that no part of the sentence should be suspended. This is because a life has been lost.

28.	He also refers to the case of State v CJ (A Juvenile). Additionally, he refers to the case of State v Talingapua [2019]. The prisoner was 20 years old. He pleaded guilty and was a first-time offender. The deceased had an argument with a group of men with whom the offender was part of. The deceased was angry over one of the men engaging in sexual intercourse with his daughter. Deceased was under the influence of home brew and was armed with a bush knife. The offender and the group of men, retreated and returned with stones and a bush knife. They threw stones at the deceased which caused him to drop the knife. The offender picked up the knife and cut the deceased across his face. The deceased died as a result. The Court found that the offence was prevalent and sentenced the prisoner to 20 years imprisonment.

29.	Whilst the offender was 20 years old in State v Talingapua (supra), he was nonetheless an adult. 

Comparative cases

30.	I have found cases as they relate to juveniles:

31.	The State v A.W.P.(A Juvenile) (2021) Cr 29 (JJ) Unreported(1 September 2021), Ganaii, AJ: the juvenile pleaded guilty to murder contrary to section 300 (1) (a) of the Code. He was a first-time offender. He was 16 years old at the time of the offence. He and his friends were returning from a school party. The deceased was walking with his family. The deceased assumed that the juvenile was attempting to rob them, he punched the juvenile. The juvenile retaliated and used a knife to stab the deceased once in the chest. This led to the death of the deceased. The Court in considering the JJA and the relevant principles as they apply to juveniles sentenced the juvenile to 8 years imprisonment. The sentence was not wholly suspended because of the high degree of culpability, the deceased family’s views were considered and that there was no alternative available for the offender.

32.	State v FT (A Juvenile) [2016], Toliken J: The juvenile pleaded guilty to murder. He was a first-time offender. He was with his older brother. His older brother pressured him into fetching a spear which he used to spear the deceased on his side. There was history of dispute between the offender’s family and the deceased family over a parcel of land. The deceased was armed with a pinch bar and was chasing two other boys and was approaching the offender and his brother. The juvenile was sentenced to 5 years imprisonment which was wholly suspended. He was placed on probation for 2 years with conditions. The basis for the suspension was his degree of culpability. 

33.	State v Wakupa [2012], David J: The offender pleaded guilty to the murder of a young girl. He had broken into her home while her parents were away. He sexually penetrated her and as she ran off to seek help, he followed her and chopped her multiple times. The Court considered factors that were relevant to young offenders and sentenced the prisoner to 25 years imprisonment. The Court assessed aged to be not less than 16 and less than 18 years old. No part of the sentence was suspended because of the gravity of the offence.

34.	State v FSD [2011], Cannings J: Two juveniles pleaded guilty to murder and manslaughter arising out of the same set of facts. One 16 and the other 14. They planned to attack the victim who had insulted the other juvenile earlier on.   On juvenile punched the deceased whilst the other stabbed him with a knife.  The 14 years old juvenile who was responsible for stabbing the deceased was sentenced to 14 years. The 16 year who pleaded guilty to manslaughter was sentenced to 8 years imprisonment. No part of the sentence was suspended because the parents of the deceased did not want a suspension. The Court found that the factors that were in favor of the juveniles sufficiently reduce sentence.

35.	In considering the range of sentences for juveniles, it appears that the midpoint is 12 years and depending on the peculiarity of each case, it is increased or decreased. The higher end appears to be State v Wakupa, which attracted 25 years; due to the viciousness of the attack, that death was a result of concealment of a rape and the high degree of culpability. State v FT (A Juvenile) is on the lower range, which attracted a wholly suspended 5 year sentence; because the offender whilst involved was not the person who applied the killing blow or applied any form of physical violence on the deceased.
Application of Manu Kovi Guidelines
36.	Had the accused been an adult, the case would have fallen into category two of the guidelines in Manu Kovi v The State (2005) SC 789. This is because a weapon was used, there was some element of viciousness, some pre-planning and no strong intent to do grievous bodily harm. The sentencing range would be 16-20 years.

37.	However, in terms of juvenile and in compliance with the law and principles as they apply to juveniles, the sentencing range would appear to be between 10-14 years.
Mitigating Factors
38.	Whilst both counsels submitted on what was mitigating, I find the following to be mitigating:
•	Plea of Guilty
•	First time offender
•	He cooperated with police and made admissions
•	He expressed remorse
•	His appreciation of the gravity of the offence

39.	Whilst Mr Timbi contends that factors in mitigation are the juvenile’s prior good character and that he was inadequately educated, mere submissions from the bar table are insufficient. A sentencing hearing is separate to the trial or plea process. Defence counsel must not merely rely on pre-sentence reports but must also obtain evidence which will be favorable to an offender: see State v Kagai [1987] PNGLR 320. It is a far stretch to submit that the juvenile’s inadequate education should reduce his sentence. It an offender’s intellectual capacity that is significant, that is the ability to coherently appreciate the significance of their actions as opposed to their level of education. Simply put, a person may not have the best education in the world but still appreciate that the taking of someone’s life is wrong and there are consequences for doing so.
Aggravating Factors
40.	The aggravating factors in this case are:
•	The use of an offensive weapon, namely a bush knife
•	The prisoner was in the company of others
•	Life was lost
•	Some intent to cause grievous bodily harm
•	Deceased was cut more than once
•	Pre-planning or retaliatory attack
41.	Whilst Mr Pare submits that the deceased was stabbed by the accused in his back, he neither alleged it in his facts and there is little evidence showing that the juvenile was responsible for the fatal wound to the back. The juvenile admits to cutting the deceased on the head, which was not the fatal wound. And that was only in the aid of his uncle. Although, Mr. Pare submits that there was a strong intent to do grievous bodily harm, the facts as presented by him demonstrate that the juvenile’s reaction was as a result of watching his uncle being attacked by the deceased. And that, the juvenile went to the scene unarmed and used the deceased own bush knife to cut the deceased: see Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006).

Prevalence
42.	The machete or bush knife was designed to assist man and not as a weapon to maim and kill. Unfortunately, that is what it has become. Whilst the law under the Summary Offences Act criminalizes the carrying of such items in public, people continue to openly carry them. Whilst one can understand the carrying of a bush knife in the village, it is unfathomable as to the need to brandish them in the streets and neighborhoods of cities such as Port Moresby. 

43.	The number of cases that involving the use of bush knives continue to rise and so the sentences must reflect societies condemnation of such behavior.  As stated by Anis J in State v Hago [2019], “the use of bush knives or properly called Machetes in Papua New Guinea to cause death, serious assaults and threats are prevalent. Therefore, strong punitive and deterrent sentences are warranted”.
Head Sentence
44.	Whilst Mr Timbi contends that the juvenile and his male relatives went to investigate who was responsible for the attack on the juvenile’s father, the evidence including the pre-sentence report indicate otherwise. Both sources reveal that there have been ongoing disputes resulting in loss of lives on both sides. It is inconsistent with logic and common sense that the juvenile and his male relatives went to talk to the other side following the serious assault on the juvenile’s father. Moreover, they went armed with bush knives. 

45.	I do accept that he was with a group that was armed and that they went with an intention to confront the deceased and his family. That confrontation ultimately led to the tragic, unfortunate and untimely death of a young man.
46.	In considering the above factors, the relevant laws and the principles as they relate to the sentencing of juveniles and being reminded that Court should not impose a sentence similar to an adult in like circumstances, I find the appropriate head sentence to be 10 years.

47.	The pre-sentence custody shall be deducted pursuant to Section 3(2) of the Criminal Justice (Sentences) Act from the date of arrest to date of sentence. The pre-sentence custody being 2 years, 5 months and 1 week.

48.	The prisoner shall serve 7 years, 6 months and 3 weeks.
Suspension
49.	 The principles regarding suspension are as follows:
•	Suspension is not an act of leniency but is in the interest of the community and to promote rehabilitation and prevent recidivism: The State v Kagai [1987].
•	Sentencing is a community response and so the views must be obtained in a pre-sentence report. Without the report, the Court cannot suspend sentence: Gima v Independent State of Papua New Guinea [2003], State v Winston [2003] and Public Prosecutor v Hale [1998].
•	The community’s view must be obtained, if it is intended that the offender be placed back into the community: Gima v Independent State of Papua New Guinea [2003], State v Winston [2003]and Public Prosecutor v Hale [1998]
•	Suspension pursuant to section 19 (6) of the Code should only be exercised in three broad categories, (1) promotes personal deterrence, reformation or rehabilitation of the offender, (2) encourages the repayment or restitution of stolen money or goods and (3) imprisonment would cause excessive degree of suffering, for example, because of bad physical and mental health: Public Prosecutor v Tardrew [1986].
•	The factors that were considered to lower the sentence should not be the same used to suspend sentence. It amounts to double discount in the prisoner’s favor: Public Prosecutor v Thomas Vola [1981].
•	In cases where the offence is prevalent, only in exceptional cases can the circumstance of the case override imprisonment: Public Prosecutor v Sima Kone [1979].
•	What is exceptional in each case is infinite. Each sentencing court in the exercise of discretion makes that determination: State v Malko [2018].
•	Evidence of good character supports suspension. There must be actual evidence and not based on submissions that the offender has good character: State v Kagai [1987] PNGLR 320.
•	In violent offences, the views of the victim are important when considering suspending sentence: State v Kogen [2016], State v Wamingi [2013] and State v FSD [2011]
•	Partial suspension pursuant to section 19 (f) of the Code should be exercised on proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412.
•	The procedure under section 19(f) of the Code is for the prisoner to enter into recognizance first prior to commencing the portion that the prisoner was ordered to serve: Public Prosecutor v Thomas Vola [1981].
•	For offences with minimum penalty provisions, it is open to the Court to consider suspension after imposing the minimum penalty. This is dependent on the peculiar circumstance of each case: The State v. Aruve Waiba [1994] and Dambui v The State [2003].

50.	In the present case there is a pre-sentence report which has obtained both the views of the juvenile’s family and the deceased family. What is significant from the report is that both parties are related. The deceased grandmother and the juvenile’s grandfather are siblings. Furthermore, a reconciliation ceremony was conducted in the village and compensation was paid. The spokesperson for the deceased family asks for a non-custodial sentence.
51.	I must balance this with the factor that a life has been prematurely lost and that offences of this nature are on the rise. 

52.	I further consider that the report did not provide a comprehensive plan as to how the juvenile will be reintegrated and how the Probation Office may assist him to become a contributing member of society. The whole scheme of the JJA is to assist the juvenile in that regard.
 
53.	Whilst it is his family wish that he should be reintegrated, they were the adults that were responsible for his decision to avenge his father’s assault. His uncle whom he aided was one of the family members that was interviewed by the Probation Office. It is this senior member of the family that should provide him with some sense of direction. Unfortunately, without any plans and no responsible adult to guide the offender, a wholly suspended sentence is also not appropriate on that basis.

54.	The juvenile is now 19 years old. I consider that a partial sentence is appropriate for the above reasons. I so suspended 2 years.

55.	The balance he must serve because of the gravity of the offence and that young people especially ones like him where they are months from adulthood, must learn to take responsibility for their individual actions. Whilst compensation appeases the situation and prevents retaliatory killings or property damage, an individual must learn to take responsibility for his own action. For this juvenile, it was a choice that he made to venture out that day and avenge his father rather than report the case to the police.

56.	After serving his sentence, he shall be released on Probation for a period of three years. Because he is now an adult, the Probation shall be pursuant to the terms stipulated in the Probation Act 1979.

Orders

57.	The Orders of the Court are as follows:
1.	The prisoner is sentenced to 10 years imprisonment.
2.	Pre-sentence custody of 2 years, 5 months and 1 week is deducted.
3.	Prisoner shall serve 7 years, 6months and 3 weeks.
4.	Two years is suspended.
5.	Prisoner shall serve 5 years, 6 months and 3 weeks.
6.	During his sentence, it is recommended that Correctional Services organized for the Juvenile to attend some literacy or FODE studies.
7.	Following his release, the Juvenile shall be on Probation for a period of three years on the following conditions:
7.1	The probationer shall provide his home address to which he is to go and shall remain until he is contacted by a probation officer. 
7.2	The probationer shall report to the probation officer as and when required by the probation officer to do so.
7.3	The probationer shall keep the peace and be of good behavior during the period of probation.
7.4	The probationer shall not change his address, other than the address referred to in Paragraph (3.1), unless he has given to a probation officer reasonable notice of his intention to do so and the reasons for the proposed change; and
7.5	Where by virtue of the change of address, the probationer has moved to another declared area–he shall, within 48 hours of arrival, report to a probation officer in that area and advise that officer of the nature and place of his employment and of his new address in that area; 
7.6	The probationer shall give to a probation officer reasonable notice of his intention to change his employment and advise him/her of the nature and place of his proposed employment; and
7.7	The probationer shall, for the purposes of the Probation, allow a probation officer to enter his home during reasonable hours.
8.	Failure to comply with any of the conditions, the Probationer shall be arrested and shall serve the full sentence.
________________________________________________________________
Office of The Public Prosecutor: Lawyers for the State
Office of The Public Solicitor: Lawyers for the Defence