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State v Noki [2021] PGNC 607; N9546 (21 October 2021)

N9546

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 665 OF 2018

BETWEEN:
THE STATE

AND:
RUBEN NOKI

Angoram: Rei, AJ
2021: 5^th, 11^th, 13^th & 21^st October

CRIMINAL LAW – Wilful Murder – S.299 of CCA – Revenge – Alleged Sorcery killing of accused father – Plea – 25 Years – Suspended on Good Behavour for 2 years.

Cases Cited:

Goli Golu -v- The State [1979] PNGLR 653
Lawrence Simbe -v- The State [1994] PNGLR 38
Manu Koivi -v- The State [2005] PGSC 34; SC78
Nomane -v- The State [1995] SCR
The State -v- Tola Kini [1995] N1359
The State -v- Sovou [1998] N1961
The State -v- Clive Surute, Clive Guvero, Didimus Surute, Redrich Guvero Harry Estegata [1999] N1847.
Ure Hane -v- The State [1984] PNGLR 105

Legislation:

Section 299(1) & (2) of the Criminal Code Act

Counsel

Mr. Solomon Kuku, for the State
Mr. Stanley Parihau, for the Defendant
21^st October 2021

1. REI, AJ: INTRODUCTION: The State through Mr. Popeu presented an indictment on 11^th October 2021 alleging that the accused: Ruben Noki of Masadanai Village, Angoram, East Sepik Province, did willfully kill one Dominic Mioypi on the 15^th of February 2018 in the said Masadanai Village.
   
2. The brief facts of the case are that, while watching a video show in the house belonging to a Belden Kongu on 15^th February 2018, between 8:30 pm and 9:30 pm the accused got hold of the deceased from the back, pulled him down onto the ground and stabbed him twice in the area of his stomach and chest. The accused used a 20cm brown handle tramontina stainless steel kitchen knife. The deceased fell into the hands of the owner of the house: Belden Kongu and died.
   
3. No reason was disclosed at the time a plea was administered. However, in his allocutus the accused stated that he did so in order to take revenge for the death of his father who was allegedly murdered by the deceased using sorcery and that he has been trying to track him down to avenge the death of his father.
   

ARRAIGNMENT

4. The accused was arraigned when the facts and the contents of the indictment were read to and translated to him by the interpreter in Court.
   
5. When asked how he pleads to the charge as laid, he said he enters a plea of guilty.
   
6. Defence Counsel Mr. Parihau submitted that the plea was consistent with his instructions.
   
7. This was confirmed upon my perusal of the committal file on the matter in which it was noted that the accused admitted that he did kill the deceased on the night of 15^th February 2018 between 8:30 pm and 9:30 pm at Masadanai Camp Site Kreer Village East Sepik Province.
   
8. The matter comes to this Court for sentence.
   

ANTECEDENTS

9. The prisoner has no prior convictions although I note there is a notation on file that he was previously charged with a minor criminal offence, cautioned and discharged. No certificate of prior conviction was tendered in evidence.
   

ALLOCUTUS

10. In his allocutus, the prisoner did express remorse and sought that the Court shows leniency in sentencing him.
    
11. He stated further that the reason why he did what he did was to avenge for the death of his father which he said irrevocably was in the hands of the deceased.
    

MITIGATING FACTORS

• Plead guilty to the offence, which saves the Courts time in running a trial
• First-time offender
• Admitted to committing the offence in his ROI
• Acted alone
• No strong intention to kill
• No pre=planning
• In his allocutus, he showed little remorse
• Had a very young family
  

AGGRAVATING FACTORS

The State submits the following aggravating factors are present in this matter.

• The deceased was unaware
• There was preplanning of the killing
• A life was lost
• A dangerous weapon was used to kill the deceased-a kitchen knife
• The deceased was unarmed.
  

DECISION ON SENTENCE

12. The circumstances leading to the commission of the crime were most unsuspecting in that everybody who gathered in the house belonging to Belden Kongu were there to watch and enjoy a video show hosted by Belden Kongu himself.
    
13. Both the prisoner and the deceased Dominic Moiypi were also there to watch and enjoy the video show.
    
14. It was not known to anyone including the deceased amongst the crowd that gathered that a serious trouble would come up as a result, the deceased was grabbed from the rear side, thrown to the ground and stabbed twice which immediately resulted in his death.
    
15. The deceased was defenceless.
    
16. The prisoner was told by Henry Kongu to stop, but he did not and even after he had stabbed the deceased twice, he went on a rampage damaging the flower garden of Belden Kongu.
    
17. This is a clear case of the prisoner being pre-determined to murder the deceased in the way he did.
    
18. It is a very serious matter and should not be looked down on by society. A heavy prison term is on offer.
    
19. I however, note that the mitigating factors outweigh the aggravating factors.
    

LIFE IMPRISONMENT

20. Section 299(1) & (2) Criminal Code Act provides that:
    

“(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death ..... is guilty of wilful murder

(2) A person who commits wilful murder shall be liable to be sentenced to death.”

21. The offence of wilfull murder carries a sentence of death according to Section 299(2) of the Criminal Code Act. However, the Courts have imposed sentences ranging from 15 years to 35 years as is demonstrated in Nomane -v- The State [1995] SCR 2195 of 30 years; The State -v- Tola Kini [1995] N1359 of 22 years; Ure Hane -v- The State [1984] PNGLR 105 of 15 years and The State -v- Clive Surute, Clive Guvero, Didimus Surute, Redrich Guvero and Harry Estegata [1999] N1847.
    
22. However, in Goli Golu -v- The State [1979] PNGLR 653, it was decided that each case be decided on its own merit and that a sentence of death should be reserved for the worst scenario cases.
    
23. It has been decided in Lawrence Simbe -v- The State [1994] PNGLR 38 and The State -v- Sovou [1988] N1961, each case should be determined on its own peculiar facts and circumstances.
    
24. The Supreme Court in the case of Manu Kovi -v- The State [2005] PGSC 34; SC789 set out the sentencing tariffs for murder cases as follows:
    

Category 1 – Plea

These are plea cases with mitigating factors and no aggravating factors. These are when no weapons were used, there is little or no pre-planning, less force is used, and there is absence of strong intention to kill. Here the sentence tariffs ranges from 15 to 20 years.

Category 2 – Denial or Plea

This category includes cases where there is pre-planning, vicious attack, weapon is used, and no strong intention to kill. The sentence range from 20 – 30 years.

Category 3 – Denial or Plea

Involves brutal killing, killing in cold blood, killing of innocent, defenceless or harmless persons, dangerous or offensive weapons used, killing accompanied by other serious offence, the victim is younger or old, the killing is pre-planned and there is a strong desire or intention to kill. Sentence is life imprisonment.

Category 4 – Denial or Plea

The last category attracts a sentence of death. Such cases are where there are special aggravating factors with no extenuating circumstances, and the gravity of the offence is such that outweighs any mitigating factors.

The maximum penalty of death sentence should not be imposed in the present case as it is not worst type of wilful murder case. It is the sentencing practice that the maximum penalty is usually reserved for the worst types of cases as enunciated in the case of Goli Golu -v- The State [1979] PNGLR 635.

25. I am of the view that this case falls within Category 2 of the Manu Kovi case (Supra).
    
26. Given that the mitigating factors outweigh the aggravating factors, this prisoner should be given a term of 25 years to serve.
    
27. A sentence of 25 years is imposed less time spent in gaol in remand which is 3 years 7 months 14 days.
    
28. The prisoner is to serve 25 years (less time in remand) which is 21 years 5 months 9 days out of which he shall be in custody for 12 years 5 months 9 days the balance of 9 years is suspended upon the following conditions:
    
    • (i) The prisoner is placed on 2 years probation
    • (ii) Report to the Probations Officer when required within that 2 year period
    • (iii) Keep the peace and good behaviour for the probation period
    • (iv) Not to commit any offence whilst on probation
    • (v) Not to change residence
    • (vi) Allow the Probation officer to enter his home at reasonable hours within the 2 year probation
    • (vii) Restrain from consuming alcohol or any intoxicating drugs during the probation period
    • (viii) Restrain from having physical contact with the deceased’s relatives or family members
    • (ix) Breach of any of these conditions, he will be arrested and will serve the balance of his sentence in prison.
      

______________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant