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State v Lar [2021] PGNC 667; N9959 (30 July 2021)

N9959

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 232 OF 2019

THE STATE

V

JERRY LAR

Kerevat/Kokopo: Suelip AJ
2021: 9^th April, 7^th, 24^th May & 30^th July

CRIMINAL LAW – sentence – plea – murder s.300(1)(a) Criminal Code – deceased drunk and disturbing – prisoner cut deceased with bush knife – deceased bled and died on the way to hospital from cut on left hand – no intention to kill – mitigating factors weigh against aggravating factors – prisoner genuinely remorseful – sentence of 15 years partly suspended with order for payment of compensation.

Cases Cited

Goli Golu v The State [1979] PNGLR 653
Manu Kovi . The State [2005] SC789
State v. Laha Joe Waluka [2014] N5788
State v. Petrus Kuau & Dominic Binu (2018) N7602

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

30^th July, 2021

1. SUELIP AJ: On 9 April 2021 in Kerevat, the prisoner of Viviran village, Gazelle District pleaded guilty to one count of murder of Henry Havoa.

2. This is my decision on sentence.

3. The facts are these. During the early hours of the 28 November 2018, between 2:00am and 3:00am, the prisoner was at Gaulim Teachers College, Gazelle District, East New Britain Province. At that time, date and place, the deceased namely Henry Havoa and his friends were drunk and walked past the prisoner’s house with a boom box playing music. He got angry that they were making noise and disturbing his sick father and got a bush knife, approached them, and cut the deceased two (2) times on his left hand. He also charged at one of the deceased’s friends and tried to cut him also. The deceased and his friends then left, and the deceased (Henry Havoa) went to his house. He was then rushed to the hospital however, he died along the way from loss of blood from the sustained cuts. The State states that the actions of the prisoner had contravened section 300 (1)(a) of the Criminal Code Act and charges him with one count of murder under that provision.

4. Section 300 of the Criminal Code Act provides:

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; or
...

Penalty: Subject to Section 19, imprisonment for life.

5. The maximum penalty for the offence is imprisonment for life, subject to Section 19 of the Criminal Code. However, it is trite law that the maximum penalty is reserved for the worse type case as held in the case of Goli Golu v The State [1979] PNGLR 653.

6. For purposes of sentencing, the prisoner’s personal particulars are these. He is 27 years old and come from Viviran village, Gazelle District but reside at Gaulim Teachers College, also in the Gazelle District. He is the fourth born in a family of 5 sisters and 4 brothers. He was adopted when he was only 2 years old by his mother’s brother. At the time he committed the offence, he was living with his grandfather at Gaulim Teachers College.

7. During allocutus, he said this is his first time to appear in Court and he apologized to the Court, the deceased, and the family of the deceased. He said he has respect for the Court.

8. In his favor, the mitigating factors include the prisoner being a first-time offender and this is one off incident. There was also no pre-planning and he co-operated with the police. Further, he pleaded guilty early, and he showed genuine remorse.

9. Against him, the mitigating factors are these. He used an offensive weapon with force and caused serious injuries to the victim. Also, he cut the victim more than once and the victim died. Moreover, this offence is prevalent in society.

10. I am guided by the principles outlined in Manu Kovi v. The State [2005] SC789 where the circumstance of this case falls within the range of the second category with a sentencing range of 16 – 20 years. Both counsels agree on this. The State counsel submits that a sentence towards the higher end of the sentencing range in category 2 and lower end of the sentencing range in category 3 is appropriate for prisoner whilst your counsel asked this Court to consider the starting point of his sentence to be at 16 years.

11. I do not find the case authorities referred to by the State’s counsel relevant in the circumstances. The prisoner’s counsel, on the other hand, has cited two cases. The only relevant one is the case of State v. Laha Joe Waluka [2014] N5788 where the offender pleaded guilty to murder. This happened when he tried to stop a fight and was allegedly shot at by the deceased. He ran to the deceased, swung the bush knife at him and slashed him just below the knee. He was sentenced to 15 years less time spent in prison.

12. In my research, I found the case of State v. Petrus Kuau & Dominic Binu (2018) N7602 where the prisoners were sentenced to 15 years and 16 years, respectively. In that case, the deceased was acting in a disorderly manner and provoked the first prisoner in the first prisoner’s home when both prisoners assaulted him causing rapture to his spleen.

13. The views from his family and community are taken from the pre-sentence report. In that report, the prisoner’s adopted father, his biological parents and his grandparents share the common view that he is a good person and does not involve himself with troublemakers. In fact, he was at Gaulim Teachers College to upgrade his courses under the Department of Distant Learning (DODL) at Malabunga. All his family want him to be placed on probation and they are all prepared to pay the maximum of K5000 with shell money as compensation to the deceased and his family.

14. His local church pastor and ward member share the same sentiments about his good character. Both are willing to supervise him in the community and at church.

15. The parents of the deceased have provided their statement to say that they have lost their innocent child and want the maximum penalty for the crime to be given to you. In the mother’s statement, she says that the budget to repatriate their son’s body to Pomio was K37,860.00. They had to take out a loan to pay the funeral expenses. Neither of them said they wanted compensation.

16. I take particular note of the high praises each parent had for their late son. They say he is innocent and is multi-talented and tries to help everyone. This is weighed against being drunk, noisy and playing loud music on public road at night in a college campus.

Consideration

17. This is not a worse type case and so the maximum penalty will not apply. There is also no dispute that the starting point for the prisoner’s sentence is between 16 and 20 years of imprisonment for the crime he has committed. A life was lost, and so I take that as a serious factor against him. He must be penalized for the crime he has committed, no doubt. However, I also consider the circumstances that led him to commit the crime. There is obviously some provocation by the deceased and his friends when they were drunk, used insulting words, and played loud music on the public road on the night of the murder. The prisoner had a genuine reason to be upset with them because his father was sick. There would be use trying to reason with them in their intoxicated state of mind. His actions therefore were intended to hurt them, not kill them.

18. As it is, the mitigating factors balance out with the aggravating factors. I am therefore satisfied that the circumstances in this case warrants a sentence of 15 years on the charge of murder.

19. Section 3(2) of the Criminal Justice (Sentence) Act 1986 gives this Court the power to deduct pre-sentence custody term from the head sentence. The prisoner has been in custody since 12 December 2018 and so, he has spent 2 years and 8 months now in prison. Hence, this period will be deducted from the head sentence.

20. Because there is provocation on the part of the deceased and his friends to cause the disturbance in an educational institution, I suspend 5 years from the balance of his sentence. That leaves the prisoner with 6 years and 8 months to spend in prison.

21. The parents of the deceased have not mentioned any desire for compensation. However, the mother has provided an account of how much was spent to repatriate the deceased to Pomio. Pursuant section 5(3)(b) of the Criminal Law (Compensation) Act 1991, the highest amount of compensation to be ordered is K5,000 either in cash, goods, services or a combination of all. As a gesture to show the prisoner’s remorse along with his family’s willingness to compensate the family of the deceased, I will order payment of K5000 cash as compensation to be paid at any time but before the prisoner’s release from prison.

Orders

22. The Orders are:

(i) He is sentenced to 15 years in prison.

(ii) His pre-sentence custody time of 2 years and 8 months is deducted.

(iii) 5 years is suspended.

(iv) He will spend 6 years and 8 months in prison.

(v) He and his family will pay the sum of K5000 in cash to the family of the deceased prior to his release in prison.

________________________________________________________________
Public Prosecutor: Lawyer for State
Public Solicitor: Lawyer for Prisoner