N9325

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 623, 625 & 626 OF 2016

THE STATE

V

	FRANK RISIPU
ELIZAH RONNY AINGI
SEBASTIAN TONY AKUI

Kimbe:  Numapo J
2021:	25th November

CRIMINAL LAW – Sentencing – Murder s.300 Criminal Code– Sentencing Principles – Aggravating & mitigating factors – Co-offenders – Parity Principle – Sentencing discretion s 19 Criminal Code – Sentencing tariffs.

Held:

(i)	An appropriate sentence is determined from the factual circumstances of the case being; the aggravating factors and circumstances, the mitigating factors and extenuating circumstances.

(ii)	Sentencing tariffs serve only as a guide, it does not take away the unfettered discretion of the sentencing authority.

(iii)	Non-custodial sentence is rarely given in murder cases. 

(iv)	Compensation is not a significant mitigating factor to warrant a suspended sentence in a murder case.

(v)	Prisoners sentenced to between 10 and 15 years imprisonment.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653 
Rex Lialu v The State [1990] PNGLR 487
Manu Kovi v The State (2005) SC789
Kumbamong v The State (2008) SC1017 
State v Augustine Mautu & 2 Ors CR. No. 03 of 2015 
State v Ben [2019] PGNC 249; N8021
State v Gango Nathan Kaiyak, CR. No. 922 of 2018
State v Lom [2012] PGNC 63; N4725
State v Pinapang [2017] PGNC 16; N6616
State v Bonsu (No.2) [2014] PGNC 312; N5571
The State v Jackson (2206) N3237
The State v Michael Gend Cr. No. 760/2011. 17th February, 2014
State v Sony Yauri and Willie Gideon CR. No. 1045 & 1046 of 2017
State v James Peter Kenneth CR. No. 381 of 2017
Willy Kelly Goya v The State [1987] PNGLR 51  
State v Silingo Abitena & Ors (2018) N7290
State v Joshua Sagalol & Ors (2018) N73531 
State v Keroi Gurua & Ors [2002] PGNC 41; N2312 
State v Mal & Ors [2012] PGNC 19; N4591. 

Counsel:

E. Kave, for the State
D. Kari, for the Defence

SENTENCE

25th November, 2021

1.     NUMAPO J: This is a decision on sentence. The accused persons each and severally were found guilty on one count of Murder contrary to Section 300 (1) (b) of the Criminal Code following a trial and were convicted accordingly. 

A.	BRIEF FACTS

2.     There was a soccer match held on the 4th December 2015 at Galai No. 1 Primary School Oval in Kimbe, West New Britain Province. At around 3pm two teams namely Brothers and Nonstop played in the finals knock out. Brothers won the match at fulltime. The three accused persons namely; Frank Risipu, Elizah Ronny Angi and Sebastian Tony Akui were all players and supporters of the Nonstop team. They together with others attacked the deceased Isaac Vitilis Dilu and other players and supporters of the Brothers team after the match ended. The decesaed plays for the Brothers team. During the fight the accused persons attacked the deceased. Accused Frank Risipu picked up a brick and hit the deceased on the head causing the deceased to fall to the ground and collapsed. Deceased was taken to Buvusi Health Centre for treatment and later got transferred to Kimbe General Hospital but died early the next morning. 

B.	THE LAW

300. MURDER

(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person;

Penalty: Subject to Section 19, imprisonment for life.

C.	ISSUE ON SENTECING

3.    The issue is; what would be the appropriate sentence for this particular offence? 

D.	SENTENCING PRINCIPLES

4.     The common law principles of deterrence, rehabilitation, restitution and retribution provides the purpose of sentencing.  The Court over the years has being guided by these principles in imposing sentences to achieve a specific outcome, purpose or objective. In general, the sentence must reflect the views of the society at large such as for example, the society’s attitude towards a particular type of offending and their expectations on the type of punishment to be imposed. The prevalence of the offence is a matter for consideration as well. 

E.	AGGRAVATING & MITIGATING FACTORS

(i)	Aggravating factors & circumstances

•	This was a mob attack
•	Unprovoked attack
•	Use of dangerous objects such as a piece of brick, stones and sticks
•	Deceased was hit with a brick on the head, a vulnerable part of the body
•	Loss of life
•	Prevalence of the offence.

(ii)	   Mitigating factors

•	First time offenders
•	No prior convictions
•	Expressed remorse
•	Some compensation was paid to the relatives of the deceased.

F.	PRE-SENTENCE REPORT & ALLOCUTUS

5.    Prisoner Frank Risipu is 33 years old and married with one child and is currently unemployed and lives at Galai 1, section 16. He completed Grade 10 at Hoskins Secondary High School and undertook an Auto Mechanical training at Moramora Technical School. He previously worked with Kutubu Transport and later with Kimbe Concrete Product. He was laid off due to less contract work. He now lives in his one (1) hectare oil palm block and harvest and sell oil palm fruits and receives between K500 to K1000 per month to sustain him and his family. 

6.     In his allocutus he told the court that he is very sorry for what he did and regretted his actions. He has paid some compensation comprising K2000 cash and a live pig worth K1000 to the deceased’s father. He is willing to pay additional compensation if ordered by the court. He asked the court for probation to serve his sentence outside.

7.     Prisoner Elizah Ronny Angi is 23 years old and is married with one child and resides at Galai 1, section 16. He is unemployed and living with his parents.  He did his Grade 10 in 2015 and was supposed to go to Grade 11 in 2016 but was arrested for this offence and did not continue with his education. His family has a 4 hectare oil palm block and his father recently bought a 3 hectare block next to where the family lives. They earn between K500 to K1000 every month from the sale of the oil palm fruits. 

8.     In his allocutus the prisoner told the court that he is very sorry for what he did. He said although, he was in the group that attacked the deceased, he never laid a hand on the deceased.  His family has contributed some money with the co-accused Frank Risipu’s family and have paid K2000 cash and one live pig to the father of the decesaed. He is willing to pay further compensation if ordered by the court and asked that he be given probation to serve his time outside and raise the money to pay compensation.

9.    Prisoner Sebastian Tony Akui was not present throughout his trial after he was arraigned. He absconded bail and a warrant of arrest was issued on him. He is still on the run. The trial proceeded in his absence and he was found guilty and convicted along with his two co-accuseds. 

G.	DEFENCE SUBMISSION ON SENTENCE

10.     Mr Doko Kari for the defence submitted that this case does not fall under the category of worst type offence to attract the maximum penalty prescribed by law. It is trite law that maximum penalty is reserved for the most serious instances of the offences. Counsel referred to the case of Goli Golu v The State (1979) PNGLR 653 as the authoritative case law with respect to maximum penalty.

11.     Mr Kari urged the court to exercise its wide sentencing discretion under section 19 of the Criminal Code and impose a lesser sentence than the prescribed maximum sentence. The case on point regarding the exercise of the sentencing discretion is found in the Supreme Court decision in; Rex Lialu v The State (1990) PNGLR 487 where the Court held that:

“This exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in specific sentence from the general principles.” 

12.     Counsel further submitted that the court consider applying the sentencing tariffs fixed by the Supreme Court in Manu Kovi v The State (2005) SC 789 and determine an appropriate sentence for this particular case. The sentencing tariffs on Murder is set out below:

CATEGORY	MURDER	
Category 1 	12 – 15 years	
Plea
Ordinary cases
Mitigating factors with no aggravating factors	No weapons used – Little or no pre-planning
Minimum force used
Absence of strong intent to do GBH.	
Category 2	16 – 20 years	
Trial or Plea
Mitigating factors with aggravating factors	No strong intent to do GBH
Weapons used
Some pre-planning
Some element of viciousness.	
Category 3	20 – 30 years	
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 GBH
Dangerous or offensive weapons used e.g. gun or axe
Other offences of violence committed.	
Category 4 	Life Imprisonment	
Worst Case – Trial or Plea
Special aggravating factors
No extenuating circumstances
No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	Pre-meditated attack
Brutal killing, in cold blood
Killing of innocent, harmless person
Killing in the course of committing another serious offence
Complete disregard for human life.	
 
13.     Counsel submitted however, that he court is not necessarily bound by the sentencing tariffs set out in Manu Kovi and the Court’s discretion on sentence remains unfettered. Reference was made, on point, to the case of Kumbamong v The State (2008) SC 1017 in the following terms:

“To the extent that these two decisions further categorize and prescribe minimum and maximum sentences within the already prescribed maximum sentences, we are of the respectful view that, they are an unnecessary and illegal curtailment or fettering and or restriction of the discretion vested in a trial judge. We are thus of the view that, no trial judge should feel compelled or bound to follow these prescriptions. Instead, they should exercise the wide discretion vested in them in the way they see fit as long as they take into account all of the relevant factors and the particular circumstances in which the offence under consideration was committed and the sentence they eventually arrive at, sufficiently reflects the factors taken into account and the particular circumstances in which the offence under consideration was committed.” 

14.     Based on the above, Counsel submitted that the appropriate sentence for this case would be between 10 to 15 years imprisonment similar to the recent case of State v Augustine Mautu & 2 Ors CR. No. 03 of 2015 that was dealt with by this court.

H.	STATE’S  SUBMISSION ON SENTENCE

15.     Ms Elizabeth Kave for the State submitted that the aggravating factors outweighs the mitigating factors and the sentence to be imposed should reflect that. The killing was totally unnecessary and a young man in his prime was killed by a group of people for no apparent reason at all. 

16.     Below are some comparative case laws to show the current trend on sentencing in murder cases to assist the court in determining an appropriate sentence:

(i)	State v Ben [2019] PGNC 249; N8021

17.     The prisoner was convicted of murder for killing his wife after an argument over money. Prisoner was drinking home brew with some men when the argument started. Prisoner was furious and angry at the deceased and struck her on the head with an axe. Decesaed received a deep gash and bled to death. Prisoner was sentenced to 30 years imprisonment.

(ii)	  State v Gango Nathan Kaiyak, CR. No. 922 of 2018

18.     Prisoner was sentenced to 20 years imprisonment for stabbing the deceased with a kitchen knife on his chest. The deceased died soon after from a loss of blood.

(iii)	State v Lom [2012] PGNC 63; N4725

19.     The prisoner pleaded guilty to killing his wife by chopping her with a bush knife 4 times in the garden. The wife was accused of having an affair with another man. Prisoner was sentenced to 18 years imprisonment. 

(iv)	State v Pinapang [2017] PGNC 16; N6616

20.     The offender pleaded guilty to killing his adopted mother. He had an argument with her and cut her neck with a bushknife. She died instantly from wound inflicted on her. The offender was sentenced to 21 years.

(v)	The State v Bonsu (No.2) [2014] PGNC 312; N5571

21.     The prisoner was found guilty on one count of Murder. At Ambunti Station in East Sepik Province, the prisoner hit the deceased with a 4x2 piece of timber on the deceased’s head and neck killing him instantly. He was sentenced to 20 years.

(vi)	 The State v Jackson (2206) N3237

22.    The offender pleaded guilty to murder of a deceased whom he suspected of killing his father through sorcery. On the day of the incident, the offender and his friend armed themselves with long bush knives and went to the deceased’s house. It was very early in the morning and they were still asleep. When they finally woke up, the offender and his friend came out of their hiding place and attacked the deceased who was holding his grandchild. The offender inflicted two knife wounds to the deceased’s neck. He fell down motionless and they escaped. The court imposed 24 years with none of the sentence being suspended.

(vii)	The State v Michael Gend Cr. No. 760/2011. 17th February, 2014

23.     The prisoner pleaded guilty to murder under section 300 (1) (a) of the Criminal Code and was sentenced to 25 years less pre-trial period of 3 years and 2 months leaving the balance of 21 years and 9 months to serve in prison.

24.     The offender and his wife were having an argument that started at the market place.  The offender was armed with a knife and stabbed his wife at her back and around the genital and abdomen area. They reached their house and the deceased fell to the ground and died due to loss of blood from injuries she sustained. She received multiple injuries to her body. She was taken to the hospital and but was pronounced dead on arrival. She was 4 months pregnant at the time.

(viii)	State v Sony Yauri and Willie Gideon CR. No. 1045 & 1046 of 2017

25.    The offenders pleaded guilty to one count of Murder. They stabbed the deceased with a knife on his left chest. Both were sentence to 18 years imprisonment.

(ix)	State v James Peter Kenneth CR. No. 381 of 2017

26.     The prisoner pleaded guilty to killing his wife by stabbing her twice on her chest and twice on her abdomen. He was sentenced to 18 years imprisonment.  

27.    Ms Kave submitted for an imprisonment term of between 16 to 20 years for the prisoners. Counsel further submitted that parity principal applies and that each offender is to be punished according to their degree of participation and level of criminal culpability. 

I.	APPROPRIATE SENTENCE

28.     There was no apparent reason at all for the deceased to be attacked. If anything, the only reason the deceased was attacked was because he scored the only goal that won his team in the finals. This was an unprovoked coward attack on an innocent person. The deceased was attacked by the perpetrators from all angles with very little chances of defending himself.  In a situation like this, the chances of survival can be very minimal at best of times. It would be difficult even for a more seasoned fighter to defend himself under these circumstances.  The prisoners must take responsibility for their actions. Killing in sport is not sportsmanship and those who wants to resort to violence has no place in sport. There is always one winner in the game and people must learn to accept this fact.

29.     Having considered all the factual circumstances of this case, I considered that this case falls within category 1 of Manu Kovi which is an imprisonment term of between 12 to 15 years.

30.     In intend to apply the parity principle that applies to co-offenders which states that an offender should be punished based on the degree of his participation and level of criminal culpability; (see; Willy Kelly Goya v The State [1987] PNGLR 51.  State v Silingo Abitena & Ors (2018) N7290; State v Joshua Sagalol & Ors (2018) N73531; State v Keroi Gurua & Ors [2002] PGNC 41; N2312 and State v Mal & Ors [2012] PGNC 19; N4591). 

31.     Based on the evidence before me, I am satisfied that the prisoner Frank Risipu delivered the fatal blow that killed the decesaed by hitting him on the right side back of his head with a brick. Prisoner retaliated after he was punched by the deceased and fell to the ground. Prisoner got up and picked up the brick and hit the deceased with it. Prisoner Sebastian Tony Akui started the fight by swearing at the other team and charged towards the players of the Brothers team. Had he not done that a fight would not have erupted and the deceased would not have died. He also assaulted the deceased whilst he was lying on the ground. He played a major role and his sentence should reflect the degree of his participation in committing this crime. Prisoner Elizah Ronny Angi also joined in and attacked the deceased whilst he was lying on the ground. However, he played a minor role and was generally moving around with the group carrying out the attack. 

32.     Prisoners asked the court for a non-custodial sentence to serve their time outside of the prison which will also give them the opportunity to find the money to pay further compensation. However, non-custodial sentence is rarely given in murder cases. Furthermore, compensation is not a significant mitigating factor to warrant a suspended sentence in a murder case.

J.	SENTENCE

(i)	I sentence Frank Risipu and Sebastian Tony Akui to fifteen (15) years each IHL.

(ii)	 I sentence Elizah Ronny Angi to twelve (12) years IHL.

(iii)	 Pursuant to section 3 (2) of the Criminal Justice (Sentences) Act 1986, I deduct one (1) year for the pre-trial custody period leaving a balance of 14 years for prisoners Frank Risipu and Sebastian Tony Akui and 11 years for Elizah Ronny Angi.

(iv)	Pursuant to sections 2 and 5 of the Criminal Law (Compensation) Act 1991, I further order that each of the prisoners is to pay a compensation of K2000 cash each with one (1) live pig each worth not less than K1000 to the relatives of the deceased within 3 months of this Order.

(v)	If compensation is paid, a term of two (2) years will be deducted from their total respective balance terms of imprisonment leaving 12 years to be served by prisoners Frank Risipu and Sebastian Tony Akui and 9 years for prisoner Elizah Ronny Angi. 

(vi)	Payment of compensation is to be supervised by the Probation Officer and the Police.

(vii)	No suspended sentence.

Orders Accordingly.
__________________________________________________________________
Public Prosecutor	: Lawyer for the State
Public Solicitor	: Lawyer for the Defence