State v Karuka [2021] PGNC 504; N9281 (14 September 2021)

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CRIMINAL LAW – SENTENCE – Murder – Section 300 (1) (a) of the Criminal Code – Guilty Plea – Drunken youthful offender – Intruder into deceased’s family affairs - Deceased struck with iron rod once on hand –Vicious attack - Deceased died from severed and ruptured blood vessel and loss of blood

CRIMINAL LAW – SENTENCE - Sentencing principles - Denouncement of actions of drunken and youthful offenders – Deterrence aspect of punishment – Aggravating Factors outweigh those in mitigation – Head Sentence of 16 years imprisonment – Minus time in custody - Further reduction for guilty plea and being a first-time offender – Prisoner to serve balance of 12 years imprisonment - No suspension – Prisoner to undergo life skills courses and distance education whilst in prison
Cases Cited:
Papua New Guinea Cases

1. GANAII AJ: INTRODUCTION: This is a decision on what is the appropriate sentence to impose and factors at play in considering an appropriate sentence for a guilty plea to a charge of murder.

2. On the 22^nd of December 2018, the offender was drinking alcohol with a group of his friends at a nearby village (Ere’erena), to his village at Kivori Kui, in Bereina, Central Province. Between the hours of 9:00 -10:00 pm he left his friends and started walking home. Whilst on his way he came past the deceased’s family home and saw the brothers of the deceased having a quarrel amongst themselves. The offender ran into the yard to stop the quarrel.

3. The deceased and his brothers chased him out of their yard. The offender was under the influence of alcohol. He ran out of the premises, armed himself with a rusted three-sided iron rod and returned to the deceased’s family home, standing a few metres away from the yard. He then shouted to the brothers to come out and face him. The deceased went out to meet him. The offender struck the deceased’s arm with the iron bar. The offender then fled the scene. The deceased bled profusely.

4. Thereafter the deceased returned home, he eventually died from blood loss on the 23^rdof December 2018 at about 3 am. Through the medical report, the deceased died from loss of blood due to ruptured and severed blood vessels in the forearm.

6. The task of appropriating a suitable penalty to any case requires the court to take into account various relevant consideration.

7. The following considerations are discussed: the brief statement of facts the offender pleaded guilty to; the antecedent report of the offender; what the offender said in allocutus, the submissions of parties inclusive of the aggravating and mitigating factors; comparable case precedents; the Pre-Sentence Report inclusive of the deceased’s family’s views and the applicable and general sentencing legal provisions.

8. The offender is 24 years old and hails from Kivori Kui village, Kairuku District, Central Province. He was a student and was residing at Mainohana Secondary School, Bereina in the Central Province. At the time of commission of the offence, he was at home. He is single and belongs to the Catholic Faith.

9. He was arrested and incarcerated in January 2019. He has been in pre-trial custody for two years and seven months.

10. In Aieni v Tahain [1978] PNGLR 37 the court held that not administering allocutus to any of the appellants was a denial of natural justice and rendered each sentence pronounced a nullity: Moses Aikaba and Others v. Tami [1971-1972] P. & N.G.L.R. 155 followed.

11. The offender was given an opportunity to say what matters the court should take into account when considering and imposing a punishment. I have heard the prisoner in allocutus. He said the following:

“Thank you to this court. This is a high court in the land of which I have so much respect.

I apologise for what I did. I say sorry to the family of the deceased and to court. I say sorry to my family as well.

I am a first-time offender. I am too young to be in custody. I am a student and I didn’t complete my Year 12 because of this incident.

With regards to the incident, I had no intention to kill the deceased. I only punched him and he happen to die the next day.

I ask the court to be lenient on me and give me less time so I can come out and complete my education”.

12. The report shows that the offender is aged 23 years old. He was born on the 08^th of July 1998. His father is 60 years old, and mother is about 50 years old. Both parents are subsistence farmers and reside at Kivori Kui village, Bereina, Central Province. The offender is the second born out of a family of four brothers.

13. The following persons were interviewed: Mr. John Bahau, the father of the offender; Mrs. Margret Bahau Ume, an aunt of offender; Mr. David Naime, a Chief of the Village; Mr. Sylvester Ikupu and Mr. Peter Ikupu, both elder brothers of the deceased. A summary of their interview answers in the PSR is as follows:

14. He is the father of the offender. He did not say much except that the offence is serious and the court will decide on an appropriate penalty. He said some form of reconciliation was organized by his sister but the family of the deceased refused to participate.

15. Due to the fact that both families of the deceased and the offender are related, i.e., their grandfather and grandmother are blood brother and sister, Mr. John Bahau has forfeited a piece of his customary land to the deceased’s family who were already occupying the land with user rights. The land contains sago tress for food and land for gardening and the land is approximately 50 x 50metres or half a hectare in size.

16. She is the aunt of the offender and sister to the offender’s father. She stated that the offender was young when his parents separated. She assisted her brother to take care of the offender’s eldest brother. The offender and his two younger siblings were taken care of by their father. She said the offender was a hard-working person who showed responsibility in doing household chores. She believed the offender didn’t have proper guidance because his parents were separated.

17. After the incident, she organised their family and they raised monies and collected food items namely a K800 live pig that she bought and K500 cash with vegetables to give to the deceased’s family. The deceased’s family refused to take the food and monies and said they wanted the law to take its course. She also said the matter is serious and the court will decide on an appropriate penalty.

18. He is a chief of Kivori Poe village. He said the offender has no history of violence. He was in the company of people or peer group with wrong influence and ended up committing a serious offence. He said the offence is serious and the court should decide on an appropriate penalty.

19. He is the elder brother of the deceased. He stated that at the time of the incident, the deceased had gotten married and they were having celebrations. The offender was an intruder and he went into their yard and punched their elder brother. They chased him out and he returned with an iron rod and hit the deceased. The deceased died from blood loss.

20. He said he still talks to the father of the offender and other family members but he does not wish to see the offender’s face as he is the instigator of the problem and he caused the life of their innocent brother.

21. Mr. Ikupu also stated that his late brother was a newly married man and his widowed wife cannot enjoy and will miss her married life with her husband.

22. He wants the court to impose the maximum penalty to punish the offender for taking away a precious life.

23. He is another brother of the deceased. He said he was at home during the Christmas break when the incident happened. The offender was an intruder into their home and family affairs. He caused the problem.

24. He said it is heart breaking losing a brother. His feeling of sadness is turning into anger.

25. He said the compensation or bel kol should have been done during the time of mourning or when the haus krai was being held. He does not want his family to receive anything now as it is too late. He had struggled alone at the time of the incident to transport his late brother to Port Moresby General Hospital morgue and without the aid of an ambulance. He also repatriated the body of his late brother back home and it costed him about K10 000 on the vehicle hire and the coffin. He said it was too much for his family and he wants the court to impose a penalty that the offender deserves for putting the family through this.

26. He also said he has no grudges against the offender’s family members as they are innocent.

27. He was told about what the offenders father said in relation to the giving of the traditional land to them by the offender’s family and he disputes that. He said both families own the customary land and have been sharing user rights and occupation of the land. He said due to the offence by the actions of the offender, his family have fled and are no longer using the land.

28. The offender was a Grade 11 student at Mainohana Secondary School at the time of commission of the offence. He said the offence was committed during the Christmas holidays and he was not able to continue his year 12 in 2019.

29. The offender is a student and depends on his biological parents for their support.

30. The offender has no major health problems. The offender does not consume drugs but he does consume alcohol.

32. The offender had no prior convictions and no prior probation supervision records.

33. The offender said he was drinking with his peers and heard the deceased family having an argument. He went in to assist to stop the fight. The deceased and his brothers chased him out. He grabbed the iron and hit the left wrist of the deceased which caused him to lose blood and die.

34. He stated that he blames himself. He is sorry and he didn’t mean to kill the deceased. He did not plan and had no intention to kill. He did not know the full consequences of his action then.

35. He apologized again through the report to the deceased’s relatives, his father, extended families, to the court and he humbly seeks leniency for light labour. He wants to be able to return to the community and seek further education.

36. His actions do not reflect the character his aunt described him to have. Sylvester Ikupu, the deceased’s brother does not want to see him in the community. He still holds grudges against him.

37. Brothers of the deceased want imprisonment term. The offence is serious. There is no acceptance of compensation. The writer of the report leaves it to the discretion of the court.

38. State did not present any victim impact statement (VIS.) The views of the deceased’s family (i.e., father and brothers) were captured in the PSR.

40. It is settled law in this jurisdiction that the maximum penalty for any offence is reserved for the worst kind of case. Principle in case of Goli Golu v the State [1988089] PNGLR 653 is applied.

41. Section 19 of the CCA vests the sentencing authority the discretion to impose a sentence less than the maximum prescribed sentence, where the circumstances of the case warrants.

42. The offender is 24 years old and hails from Kivori Kui village, Kairuku District, CP. He resided at Mainohana Secondary School, Bereina in the Central Province. He is single and is a student at Mainohana Secondary School. He belongs to the Catholic Faith.

43. In State v Hotsia Geria (2008) N3868, Kandakasi, J posed the following questions which are pertinent to determining an appropriate penalty:

44. The case of Manu Kovi v State (2005) SC 789 provides a schedule of category of sentencing guideline for homicide cases as follows:

Category	Description	Details	Tariff
1	Plea: ordinary case, mitigating factors with no aggravating factors	No weapons used, offender emotionally under stress- de factor provocation, e.g. killing in domestic settings, killing follows straight after argument – Little or no preparation-Minimal force used – Victim with pre-existing diseases which caused or accelerated death e.g. Enlarged spleen cases	12-15 years
2	Trial or Plea: Mitigating factors with aggravating factors	Use of offensive weapon such as knife on vulnerable parts of body – Vicious attack – Multiple injuries – Some deliberate intention to harm – Pre-planning	16-20 years
3	Trial or Plea: Special aggravating factors – Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Used dangerous weapons e.g. Gun or axe – Vicious and planned attack – Deliberate intention to harm – Little or no regard for human life.	20-30 years
4	Worse Case Special aggravating factors. No extenuating circumstance – No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence	Some elements of viciousness and brutality – Some pre-planning and pre-meditation – Killing of innocent, harmless person – Complete disregard for human life	Life Imprisonment

45. Defence submitted the following to be the aggravating and mitigating factors:

where the prisoner stabbed the deceased with a knife on the back, and where K80 000 was paid as compensation, prisoner was sentenced to 15 years imprisonment.

murder, where the prisoner assaulted his wife using a car jack handle over 3 days in their house, the court held that the continued series of assault over a number of days is serious than a single attack repeated in a single day. Prisoner was sentenced to 24 years imprisonment.

47. In comparison to the above cases, Defence submitted that this case is not a worst case to those mentioned above. This case falls within the 2^nd category of Manu Kovi case and attracts a sentence of between 16-20 years.

48. Defence submitted that the court has a discretion under Section 19 of the CCA to deduct pre-trial custody period, pursuant to section 3 of the Criminal Justice Act 1986. Further, that the whole or part of the sentence can be suspended to allow for the prisoner to further his education.

50. The Manu Kovi case is a guide for the court in determining appropriate sentence in homicide cases.

51. The following are the aggravating and mitigating factors present in the case.

52. In order to impose a fair sentence that befits the crime of murder, regards must be had to decided cases which share the similarities on the main facts. The facts found relevant in the present case are that a weapon was used, prisoner pleaded guilty plea and is a first-time offender.

54. State submitted that the maximum penalty of life should be is reserved for worst case, principle in Goli Golu applied.

55. This case falls within the 2^nd category of Manu Kovi’s case i.e. that the case attracts a sentence of between 16-20 years, as a weapon was used, the prisoner had planned to go, look for a weapon, return with it and use it. The attack was a vicious resulting in the rupture and severing of blood vessels in the forearm, causing blood loss and eventual death. A summary of the above cases and sentences show a range from 12 to 20 years, imposed on prisoners who were known to each other and were in domestic settings, who had used weapons to cause grievous bodily harm resulting in death.

56. State submitted that the court apply the principle in Lawrence Simbe [1994] PNGLR 38 where each case is to be determined in its own facts and circumstance and impose an appropriate sentence for the present case. The aggravations outweigh the mitigations.

57. State submitted that the denouncement aspect of punishment be considered to deter youthful and drunken offenders, acting from peer pressure, and causing disturbance to peace loving community.

58. State submitted that, in considering an appropriate penalty, the courts must take note of the sentencing principle in Acting Public Prosecutor v Uname Aumane [1980] PNGLR 150, a case which reinforces the purpose of sentencing by considering deterrence, separation, rehabilitation, and retribution. An appropriate penalty must be imposed to deter youthful offenders.

59. In Manu Kovi, the court stated the sanctity and value of human life is far more precious and valuable that anything else and no amount of remorse or compensation will restore a lost life. The unlawful taking of another person’s life is a serious and horrendous crime which must be adequately punished. This fundamental principle had been re-iterated by the courts in many any cases.

60. Therefore, state submits that in considering the aggravations as mitigations, loss of life, prevalence of offence, sentencing trend in Kovi case, comparable cases, specific and general deterrence sentence, a sentence of 12-20 years subject to court’s discretion under s 19 is appropriate.

61. The purpose for sentencing is to ensure that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his or her actions, to denounce the conduct of the offender, and to recognise the harm done to the victim of the crime and to the community. In Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Mason CJ, Brennan, Dawson and Toohey JJ said at 476:

“... sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence ...”.
Maximum penalty is reserved for the worse case

62. A consideration which the courts must have regards to is the Section 19 CCA discretion of the courts. This provision of the law provides for the wider discretion of the courts to impose lesser penalty than the maximum. The principle in case of Goli Golu v The State [1979] PNGLR 653 is applied where it states that the maximum penalty is reserved for the worst type of case.

63. The punishment should be in proportion to the harm inflicted and the level of responsibility of the offender. Although society needs to be protected, an offender is entitled to be punished to the extent commensurate with the seriousness of the crime. The sanction should not be too severe or too lenient. State v Kiaro [2020] PGNC 277; N8610 (30 October 2020. Narokobi, J)
64. The case of Manu Kovi provides useful guidelines which I take note of.

65. I am grateful for the cases cited to me by counsels. I take note of the facts of the case and the sentencing imposed by the courts and the reasonings given in those cases.

66. As in all cases, the sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

67. The offender has been convicted of one count of murder after a guilty plea contrary to section 300 (1) (a) of the CCA. The maximum penalty for this offence is life imprisonment.

68. The offender is youthful and was in school when he committed the offence. He is 24 years old and was residing at home when the incident occurred.

69. The circumstances of the case involve a youthful drunk offender, uninvited into the family affairs of his cousins. He used an iron rod and according to the medical report the attack was vicious where the wound was measured to be 8 cm by 4 cm in size, resulting in severed and ruptured blood vessels. Due to the remoteness of the locality of the village where the deceased was at, medical help was out of reach resulting in blood loss and eventual death.

70. The family of the deceased had gone through a lot having to deal with the pain of losing a loved one. The partner of the deceased has to go through the pain of missing her husband whom they were only about to launch into starting a family life together. No one should be deprived of their right to life and enjoyment of it.

71. The right to enjoyment of life is given by God and is once lived and should never be taken away by anyone. The right to life is enshrined in the Constitution and in the Bible. It is in the Ten Commandants. PNG is a Christian country, and we must promote our Christian values and principles.

72. This is another one of those sad statistics where a young life is innocently cut short at the hands of yet another youth under the influence of alcohol. In the guard against sanctity of life, the courts must denounce in the strongest terms the actions of youthful offenders, who turn to readily available weapons to struck and cause harm and injure unarmed and unsuspecting members of the community. The denouncement must be reflected in the type of sentencing the court must impose.

73. I take note of what the prisoner said in allocatus, the aggravations and mitigations present in his case. I note that the aggravations far outweigh the mitigations. I take note of the contents of the PSR particularly the views of the family members of deceased. I note that no compensation or reconciliation has been made. But all must be reminded that no amount of compensation or reconciliation can bring back life.

74. I take into account the comparable case laws cited by both counsels and the guidelines in Manu Kovi case which can guide the court. I accept the submissions by both parties that this case falls within category two of the Manu Kovi case. It is a case involving a guilty plea where there was one struck on a not so vulnerable part of the body. Because of that the sentence would be at the lower end of scale in category two of Manu Kovi, that is that it should have a starting point of 16 years as the head sentence.

75. In noting the viciousness of the attack and that the aggravations far outweigh the mitigations, this sentence is one that should not go below the starting point of 16 years.

77. I deduct the spent time in custody that is 2 years and 7 months, noting that the offender was arrested in January 2019.

78. The offender is to serve a balance of 13 years and 5 months imprisonment in hard labour.

79. I further deduct 1 year and 5 months as discount on the guilty plea and for being a first-time offender. The offender will serve a balance of 12 years imprisonment in hard labour.

80. I will not make any orders for part or full suspension for the following reasons:

Final Orders on Sentence

81. The court imposes the following orders on sentence:

2) Time spent in pre- trial custody is deducted, i.e., 2 years and 7 months, leaving a balance of 13 years and 5 months to be served in hard labour at Bomana, CIS;

3) In consideration of the offender’s guilty plea and being a first-time offender, and in discount of that, deduct 1year and 5 months as discount. The offender will serve the balance of 12 years imprisonment in hard labour; and

4) Given his youthfulness, and his wishes to gain further education, recommends that the Commander of Bomana Correctional Institution make arrangements for the offender to undergo any Flexible Open and Distance Education (FODE) or and life skill courses during the term of imprisonment.

Sentenced accordingly.
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Public Prosecutors: Lawyers for the State
Public Solicitors: Lawyers for the Defendant

National Court of Papua New Guinea

State v Karuka [2021] PGNC 504; N9281 (14 September 2021)