N9581

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 476 OF 2019
BETWEEN:
THE STATE

AND:
TAKIMA HODOME

Waigani: Ganaii, AJ
2022: 07th April

CRIMINAL LAW – SENTENCE – Murder – Section 300 (1) (a) of the Criminal Code – Guilty Plea – Domestic Setting – Use of Knife – Three Stab wounds – Fatal stab wound to the chest area - Sentencing Principles - Aggravating Factors outweigh those in Mitigation – Head Sentence of 16 years – PSR Favorable to Offender – Time in Custody Deducted – Partial Suspension – Probation - Compensation 
Cases Cited:
Papua New Guinean Cases

Aieni v Tahain [1978] PNGLR 37 
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Manu Kovi v The State (2005) SC789
State v Amos Young (2008) N3548   
State v Douglas Mareva [2012] N4805
State v Eroane N9028, CR  1392 of 2019 
State v Esom [2019] PGNC 264; N8041 
State v Guina [2020] PGNC 91 N8311
State v Hotsia Geria (2008) N3868
State v Isaac Parao (2009) N3625 
State v Javopa [2014] PGNC 49; N5579
State v Jimmy Ketu (No 2) (2007) N3394
State v John Laiam [2010] N3995
State v Joseph Cr 866 of 2007 (Unreported and unnumbered judgment)
State v Kagai [1987] PNGLR 320
State v Kiaro [2020] PGNC 277; N8610 
State v Kiri Kirihan Harisu (2006) N3968
State v Kogen [2016] PGNC 39; N6211 
State v Ligat [2019] PGNC 178; N7888 
State v Nancy Kimine Cr 175 of 2018 
State v Pakova [2016] PGNC 80, N6286 
State v Paroa (2009) N3625
State v Paul Karuka N9281
State v Penge [2002] PGNC 90; N2244
State v Tokau [2008] PGNC 284; N5462 
State v Wamingi [2013] PGNC 329; N5723 
State v Yauri and Gideon Cr. No. 1045 & 1046 of 2017
State v Young (2008) N3548

Overseas Cases	 
Veen v The Queen (No 2) (1988) 164 CLR 465  
	 
Legislation

The Constitution, Section 35
The Criminal Code Act, Chapter 262 of 1974, Sections 19, 300
The Criminal Justice (Sentences) Act of 1986
The Holy Bible, Old Testament, Book of Exodus, Chapter 20 and Verse 13
United Nations Universal Declaration of Human Rights, Article 13 

Counsel

Ms. Elsie Kariko, for the State
Mr. Jimmy Rupavele, for the Defendant 				

DECISION ON SENTENCE 

7th April, 2022

1.     GANAII, AJ	: This is a decision on sentence for the offender Takima Hodome on a guilty plea to a charge of Murder contrary to section 300 (1) (a) of the Criminal Code. 

Facts

2. 	 The offender and the deceased were married but were separated. They had two children. The deceased had gone to reside with her mother at Tari Block, East Boroko, NCD. She had taken one of their children with her. On the 22nd of June 2018, the offender went to Tari Block, to the residence of the mother of the deceased to see their child. An argument erupted between the deceased’s mother and the offender. The offender punched the deceased’s mother several times causing her to fall to the ground. The deceased saw this and ran to the aid of her mother. The offender produced a kitchen knife and stabbed the deceased three times. The stab wounds were effected on her bicep, back and left breast. The deceased collapsed and fell to the ground. She was pronounced dead on arrival at the hospital. The cause of death was from a penetrating wound to the interior of her left breast. 

Outline of appropriate Consideration

3.	On the task of appropriating a suitable penalty, the court takes into account these relevant considerations: the statement of facts the offender pleaded guilty to; other facts in the depositions favourable to the offender, her personal particulars and antecedent report, what the offender said in allocutus, the submissions of parties inclusive of the aggravating and mitigating factors; the views of the deceased’s family,  the Pre- Sentence Report (PSR), the law, comparable case precedents and general sentencing principles.
4.	As the offender had pleaded guilty, he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocatus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890).
 
Allocutus

5.	The offender was given an opportunity to say what matters the court should take into account when considering and imposing a punishment. (Aieni v Tahain [1978] PNGLR 37. He said the following:

“I say sorry to God. I say sorry to the family of the deceased. I was at home, and I paid for the deceased to come here to get her education. I spent K8, 200. In 2017 I was at home alone. We had two children and I was looking after them in the village. I came here, I stayed away from her. I went to East Boroko, some men saw me and they assaulted me, and this incident happened. I say sorry to this court. 

Court can give me whatever penalty. I seek God’s leniency so that I can serve some time and be released to go home to look after the children. Thank you.” 

Pre- Sentence Report 
Origin, Family and Place of Residence

6.	The offender is 45 years old and hails from Wabia Village, Tari-Pori District, Hela Province. The offender did not have a steady residential address. He lived at three different locations before his arrest. Firstly, he lived with a cousin brother David Kawaia, a police officer, at Tasion Police Barracks; sometimes he lived with Peter Philip, a political friend and other times he lived with the deceased’s family at East Boroko. His parents are deceased. They originate from Tari-Pori, in the Hela Province and were simple subsistence farmers. The offender is the fifth born out of a family of five sisters and two brothers. All his siblings live at home. 

Marital Status and Dependents

7.	The offender’s first wife is Apeli Minape and they have three children, two sons and a daughter and they reside in Hela Province. Whilst being a PMV bus driver along the Highlands Highway, he met his second wife, the deceased. They have two children who are currently living in Hela Province with the offender’s family. He states that he also has other de facto relationships apart from his first and second wives. 

Education and Work History

8.	The offender has not had any formal education. He is illiterate and communicates in pidgin. The offender was unemployed. He sustained his living and that of his family by working as a PMV Bus driver along the highlands highway. 

Person interviewed

9.	The writer was not able to obtain views from the offender’s immediate family members as they all live in the village. The writer also was not able to obtain the views of the offender’s cousin brother David Kawaia, a police officer based in Port Moresby, and whom the offender had lived with.

10.	Mr. Tene Koyu, was interviewed. He is a member of the offender’s community. He resides at Komo Magarima District. The writer contacted him and he was interviewed by phone. He stated that he is the Deputy Chairman of Wabia Village and had witnessed the bride price ceremony whereby the offender paid monies and pigs to the deceased’s mother and family members. He also confirmed the payment of bel kol monies in the amount of K1, 400 in cash and four live pigs given to the deceased’s family in Hela Province after the offence was committed. Mr. Koyu said the actual compensation demand was K50, 000. The offender and his family were not able to pay this amount. He confirmed that the offender was a PMV driver along the highlands highway when he met the deceased and they got married by custom. 

Complainant’s Views

11.	Ms. Haijabe Mauwa was interviewed. She is the mother of the deceased. She stated that the deceased was only 26 years old when she died. She was doing her Grade 12 at Jiwaka Province when the offender lured her with money and married her. She then came to Port Moresby and enrolled at the Nursing School at Hohola. She paid for her school fees all by herself. The deceased was supposed to complete school, work and support her children but that is not possible now. The court must impose a deterrent punishment on the offender. She also said she did not receive any bel-kol money and does not want to get any. She wants the law to deal with the offender. 

Financial Situation

12.	The offender is a simple villager. Through his employment as a PMV driver he was able to earn some money to take care of his family. He said his family contributed K1, 400 and 4 live pigs as bel-kol and paid this to the deceased’s family. This was in Hela Province. This was necessary to prevent tribal warfare between the deceased’s line and his line. 

Health, Future and Prior Conviction

13.	The offender has no major health problems. He says he does not have any specific plans about the future but only wants to seek employment as a PMV Bus driver along the highlands highway to earn a fortnightly salary so that he can take care of his children. The offender had no prior convictions and no prior probation supervision records. 

Circumstances of the Offence and the Offender’s attitude towards Commission of the Offence

14.	The offender admitted to killing the deceased. He blames himself and says sorry to the family of the deceased. He seeks the courts mercy and wants to come out to find a job as a driver to take care of his children. 

Potential Danger to of offender to other and Community

15.	The writer of the Report states that the offender’s actions do not reflect the type of character the CIS described him to have, that is that he is a respectable person. He could not resolve his own marital problem in a proper way and took a precious life. His actions say he is a danger to the community.

 Suitability for Probation Supervision

16.	The writer says the offender has no priors, is a first-time offender, has realized his wrongs, and has paid bel kol. 

Character References other Documentations

17.	The following is a summary of the offender’s character references provided by respective authors. 

1)	Sergeant Gomara Malala – Deputy Shift Supervisor, Bomana CIS

The offender prevented another remandee from committing an offence on duty CIS officers at the Reception and Discharge Office. He had shown bravery for the prevention of crime and respect for rule of law. He also assists other remandees to settle their differences amicably and has demonstrated leadership skills and attributes. 

2)	Corporal Benedict Simerato – Shift Supervisor, Bomana CIS

The offender was on remand awaiting his case for three years. Unlike other remandees who became frustrated and lash out on CIS officers, he did not. He stood in to save the lives of six CIS duty offices who would have been attacked and seriously harmed by an armed remandee. Amidst the overcrowding and challenging post Covid19 times, the offender did not show any frustrations but acted to consciously to prevent harm and danger. The writer recommended that he should be given recognition for consideration to be released on bail or some other reward for his self-sacrificing act in saving the lives of duty CIS offices in a difficult and dangerous place like the prison. 

3)	Letter of Commendation - Inspector Brian Aian Jnr, Operations Security, 
Bomana CIS 

The letter of commendation is dated 04 May 2021 and was given as a token of appreciation to the offender for his courage displayed on the 22 April 2021. The offender acted consciously by doing the right thing in saving the life of a young CIS officer and preventing other possible injuries and harm to others. This act has shown that he understood the difficult task of CIS officers and respected that. The writer says that the offender will make a good leader in his community one day because of the care, respect for authority and leadership he showed. 

4)	Mr. Tene Koyu – Chairman of Wabia Village Court 

Confirmed the payment of bride price by the offender to the line of the deceased. He said the offender is a peace negotiator and mediator in the village with issues involving marriages, other domestic disputes, land issues, and issues with properties such as pigs. He was a community leader. 

5)	Greg Teine – A/Chaplain, Bomana CIS 

The offender participated in spiritual rehabilitation programs and is now a changed man. He is a member of the Pentecostal church and always lends a helping hand in prison church programs. He has learnt a lot of things and uses his knowledge to help and assist church leaders to organize crusades, dedications and Sunday service. He gets alone well with leaders, elders and church members. He attends Sunday Service faithfully. He participates in prison roll call and cell devotions. He is humble, helpful and has earned respect. He is in the committee for cell D4, is a spokesmen and peace maker. There has not been any complaint against him by other inmates. He is well behaved. His time in remand has made him a better person If given the opportunity, the writer believes that he can make a positive contribution to society. 

6)	CW Robin Aimin – Shift A, Bomana CIS 

The writer joins his colleagues Sgt Gomara Malala and Corporal Benedict Simerato in commending the offender for his act of bravery and understanding of the challenging role of CS officers and regard and respect for the rule of law. 

7)	Statutory Declaration by the Offender 

The offender promised to pay K50 000 and pigs as compensation to the deceased’s line. On the same document, Tindipu Lupu declares that payment of bel kol took place with a payment of K1, 400 in cash and four live pigs. 

 Defence Submission 

18.	Apart from the relevant sentencing principles, counsel relied on comparable case laws of: State v Kiaro [2020] PGNC 277; N8610 (30 October 2020), State v Esom [2019] PGNC 264; N8041 (4 October 2019); and State v Yauri and Gideon Cr. No. 1045 & 1046 of 2017. In State v Kiaro (supra), on a guilty plea, the court imposed 13 years, for the prisoner who caused death by stabbing the deceased twice, firtsly on the head and then on the chest of the deceased with a knife. In State v Esom (supra), on a guilty plea, the prisoner was sentenced to 25 years with no suspension for gunshot wounds causing death. In State v Yauri (supra), the prisoners pleaded guilty to stabbing the deceased with a knife on his left chest. Both were sentence to 18 years imprisonment. Comparing those cases to the present case, Defence submitted that an appropriate sentence is one between 10 – 15 years. 

19.	The offender had spent three years and nine months in pre-trial custody. He was incarcerated on the 2nd of July 2018. Pursuant Sections 3 and 4 of the Criminal Justice (Sentences) Act 1986, Defence had asked that the Court deduct this from the head sentence. 

State Submission 

20.	State submitted on the relevant sentencing principles and guidelines including the case of Golu v State [1979] PNGLR 653, Simbe v State [1994] PNGLR 38 and Manu Kovi v The State (2005) SC 789. This case falls within category 2 of Kovi case where there was some strong intent to do grievous bodily harm, weapons used, there was pre-planning, and there was presence of some elements of viciousness. The starting point of 16 years is appropriate and a sentence of between 16 – 20 years can be imposed. 

21.	State submitted the following aggravations to be present, that there was disregard for the sanctity of life; crime is violent in nature, there is some desire to do grievous bodily harm, the deceased was unarmed and defenceless; a dangerous and lethal weapon was used, there were multiple stab wounds to various parts including to a vulnerable part of the body, murder is a prevalent offence and the offence was committed within a domestic setting.  The only mitigations which are far outweighed by the aggravations are the offender’s guilty plea, being a first-time offender and that he acted alone. 
22.	State also relied on three comparable cases. In State v Jonathan Joseph Cr 866 of 2007 (Unreported and unnumbered judgment). In a domestic setting, the prisoner was frustrated that the deceased was involved in sexual misconduct. He stabbed the deceased three times causing her death. The prisoner was sentenced to 17 years. 
23.	In the case of State v Tokau [2008] PGNC 284; N5462 (25 April 2008), on a guilty plea, where there was a family dispute and the prisoner killed his father-in-law by stabbing him three times on the collar bone, abdomen and back, he was sentenced to 22 years. 
24.	In the State v Guina [2020] PGNC 91 N8311, on a guilty plea with extenuating circumstance of a polygamous marriage, where the prisoner stabbed a co-wife, the deceased in the left breast with a small kitchen knife, penetrating the heart, she was sentenced to 12 years. 

25.	In the State v Eroane N9028, CR  1392 of 2019 Waigani: Berrigan, J (13th August 2021), on a guilty plea to the murder of her husband’s girlfriend, with the following considerations: extenuating circumstance, clear intention to cause grievous bodily harm, vicious attack of a defenceless and unsuspecting victim from behind, element of planning present, and with use of offensive weapons to inflict multiple injuries, the prisoner was sentenced to 15 years.  
26.	State submitted that the Courts have imposed sentences of 12, 14, 17 and 22 years respectively, considering the factors at play including any extenuating circumstance of the cases. In the case of State v Javopa [2014] PGNC 49 N5579, State submitted that the court will take into account the need for strong deterrence in the interest of the community. 

27. 	In the present case, State acknowledged that compensation or bel-kol took place in the Hela Province, where the mother of deceased was not aware of and that she did not benefit from any of the compensation paid. She expressed her wishes for the offender to be punished. State also concedes that the offender has expressed remorse however, the PSR does not recommend probation for the offender. In urging the Court to consider the Right to Life enshrined in the Constitution; loss of life, loss to family and friends, prevalence of offence, and the use of a lethal weapon, State submitted that a sentence between 16 – 20 years is appropriate. 

Application

The Purpose for sentencing

28.	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) 164 CLR 465; applied in State v Paul Karuka, N9281, (14th September 2021). 
Maximum penalty is reserved for the worse case

29.	Under Section 300 of the Criminal Code, the maximum penalty for the offence of murder   is life. Subject to Section 19 of Criminal Code, the courts have a wider discretion to impose lesser penalty than the maximum. Goli Golu v The State [1979] PNGLR 653 is applied. 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).

30.	In State v Hotsia Geria (2008) N3868, Kandakasi, J posed the following questions which are pertinent to determining an appropriate penalty: what the relevant facts pertinent to the case are; what the relevant sentencing trends applied by the courts are; what the aggravatin and mitigating factors are; what the appropriate head sentence is; and should any or part of it be deducted.

31. 	The case of Manu Kovi v State (2005) SC789 provides a schedule of sentencing guideline for homicide cases as contained in the table below. 

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	

Comparable Cases

32.	In recent past decisions on sentence, this court was able to discuss a number of comparable cases. I discuss them below. 

a)	State v Isaac Parao (2009) N3625, on a guilty plea to a charge of murder, 
where the prisoner stabbed the deceased twice with a knife on the chest and back, and where K80 000 was paid as compensation, the prisoner was sentenced to 15 years imprisonment. 

b)	State v John Laiam [2010] N3995, on a guilty plea, where the prisoner 
and deceased were students at a college and had an ongoing unfriendly relationship, and where the prisoner stabbed the deceased once on the chest, he was sentenced to 15 years imprisonment.

c)	State v Douglas Mareva [2012] N4805, on a guilty plea, 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. The prisoner was sentenced to 24 years imprisonment.

d)	State v Jimmy Ketu (No 2) (2007) N3394, where the prisoner was found 
guilty after trial on a charge of murder in circumstances where he used a bush knife to inflict wounds on the head and hands of the deceased causing death, the prisoner was sentenced to 22 years imprisonment.

e)	State v Kiri Kirihan Harisu (2006) N3968, where the prisoner pleaded 
guilty to the use of an axe to cut the deceased twice on the knee and face, and where the deceased died from injuries and loss of blood, the prisoner was sentenced to 22 years imprisonment. 

f)	State v Amos Young (2008) N3548, where the prisoner was found guilty 
after trial for using a knife to stab the deceased once, the prisoner was sentenced to 17 years imprisonment. 

g)	State v Nancy Kimine Cr 175 of 2018, where the prisoner used a piece of 
wood to hit the deceased several times on the head and body resulting in serious injuries, and where the deceased collapsed and died the next day, the prisoner was sentenced to 12 years imprisonment.

h)	State v Kiaro [2020] PGNC 277 N8610 (30 October 2020) on a guilty plea, 
where the prisoner was drinking with some friends and had an argument with the deceased, and where he effected two stab wounds with a knife to the right arm and chest of the deceased resulting in loss of blood and death, he was sentenced to 13 years imprisonment. The court took into account the presence of an element of de-factor provocation and that the prisoner’s family had suffered reprisal through loss of their family home. 

i)	State v Pakova [2016] PGNC 80, N6286 (14th April 2016), on a guilty plea, 
where the prisoner used reef stones to hit his wife’s head and where she died from serious head injuries and bleeding, he was sentenced to 15 years imprisonment. 

j)	State v Ligat [2019] PGNC 178 N7888 (21st June 2019), on a guilty plea, 
where the prisoner and the deceased fought on the road, and where the prisoner hit the deceased on head with an iron rod where the deceased died from head injury, he was sentenced to 20 years imprisonment.
 
Summary of Comparable cases 

33. 	In summary of the above cited cases, on a guilty plea in circumstances where a knife was used to effect a single or two stab wounds to vulnerable parts of the body including the chest and the head, the prisoners were sentenced to terms of imprisonment between 15 to 22 years. Where assaults were made over a number of days, a sentence of 24 years was imposed. In one case (Kiaro, supra), a much lower sentence of 13 years was imposed and among other considerations, the court was mindful of the presence of an element of de-factor provocation and that the prisoner’s family had suffered reprisal through the loss of their family home at the hands of the deceased’s relatives. 

34.	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. The offender has been convicted of one count of murder after a guilty plea contrary to section 300 (1) (a) of the Criminal Code. The maximum penalty for this offence is life imprisonment subject to the section 19 discretion of the Court. 

Circumstances of the Killing and Effect of the Crime 

35.	The circumstances of this case involve a killing within a domestic setting. It shows the offender’s inability and or ignorance to settle his marital dispute amicably and lawfully. It also shows his inability to deal with custody and access issues regarding their child who was in the care and custody of the deceased after the offender and the deceased separated. The offender assaulted the deceased’s mother against that background. When the deceased went in aid of her mother, the offender turned on her and stabbed her, not once, but three times. The attack was vicious as there were multiple stab wounds, one of which was fatal, penetrating a vulnerable part of the body, namely the breast, and causing death. 

36. 	The family and mother of the deceased have gone through the pain of losing a loved one. The children of the deceased and the offender are now without a mother and a father. There is no element of de-factor provocation as the deceased had acted in the aid of her elderly mother who was being assaulted by the offender. This is another one of those sad statistics where a young life was innocently cut short at the hands of someone who is supposed to love, care and protect her.

37.	The right to life, in which the deceased was supposed to enjoy, given by God through creation, protected by His law through the Ten Commandments, and promoted by the law of the land in the Constitution, was pre-maturely, sinfully and unlawfully taken away. The deliberate taking of another human life is a violation of the sixth commandment in the Book of Exodus, Chapter 20 and Verse 13 of the Holy Bible. Being a citizen of this Christian nation, the offender’s action shows a complete disregard by him of his Christian duty towards his neighbour, and more so owed to his wife to love, care and protect her. God is the giver of life, through creation and through pro-creation by God’s sanctification of marriage. The killing of the deceased by her husband is a perversion of God’s creation and a perversion of his command to pro-create through the union of marriage. The offender not only had violated God’s laws, but the laws of the land too. 

38. 	The right to life is a right that every human being is entitled to have, to enjoy and to protect or guard. Article 13 of the United Nations Universal Declaration of Human Rights, states that ‘everyone has the right to life, liberty and security of person’. The right to life is enshrined in the Constitution as a fundamental right where section 35 says that ‘no person shall be deprived of his life intentionally’ except in certain circumstances permissible by law. In guarding the sanctity of life, the courts must denounce in the strongest terms the actions of offenders who turn to readily available weapons to struck to cause harm, injure and kill members of their family and the society including the vulnerable. Generally, women, children and the elderly are regarded as vulnerable members of society. The denouncement of this crime must be reflected in a stern and deterrent sentence imposed by the Courts. 

39.	This Court takes note of what the prisoner said in allocutus, the aggravations and mitigations present in his case and is mindful that the aggravations far outweigh the mitigations. The Court is also mindful of the contents of the PSR particularly the views of the mother of the deceased where she had stated that no compensation or reconciliation has been given and made to her. Regardless, the offender and all must be reminded that no amount of compensation or reconciliation can bring back a life that has been lost. 

40. 	I take into account the comparable case laws cited by both counsels and the guidelines in the Manu Kovi case which has always been a useful guide for the courts. I accept the submissions by both parties that this case falls within category 2 of the Manu Kovi case. It is a case involving a guilty plea where there was stabbing on a vulnerable part of the body. The head sentence would be at the starting point of 16 years. In noting the viciousness of the attack, that the aggravations far outweigh the mitigations and the comparable case laws cited above, this case is one where the sentence should not go below the starting point of 16 years. A prison term of up to 16 years will act as both general and specific deterrence, against the offender and other likeminded persons. 

Sentence 

41.	In saying the above, I hereby consider it appropriate in the circumstance of this case and impose a head sentence of 16 years imprisonment in hard labour. 

Principles of Suspension of Head Sentence

42.	Case law principles on suspension of head sentences say that suspension is not an act of leniency but in the interest of the community, it is considered necessary to promote rehabilitation and prevent recidivism (tendency of a convicted prisoner to re-offend): State v Kagai [1987] PNGLR 320. Evidence of good character supports suspension. In considering suspension based on good character, there must be actual evidence and not mere submissions that the offender has good character: State v Kagai (supra). In violent offences, the views of the victim are important when considering suspension of sentence: State v Kogen [2016] PGNC 39 N6211 (19th February 2016) and State v Wamingi [2013] PGNC 329 N5723 (20th June 2013). 

43. 	In my consideration of whether there is a favourable PSR for the offender, and in determining his likelihood to be rehabilitated, I note in particular that this is one case so far for all the remandees I had to pass sentence on, where three prison shift supervisors, a prison Acting Chaplain and a High-ranking Commissioned CIS Officer and Inspector responsible for Security/Operations in prison have all expressed their respective views on an offender’s changed character. In essence, the sum of their views as described in their respective references demonstrate that during the offender’s three years and nine months pre-trial custody period, as a remandee, awaiting an outcome of his case, he had become a changed person and has earned the respect of these gentlemen and others including his fellow prison inmates. They have all recommended that this be taken into account in sentencing. I note what Inspector Brian Aian Jnr has stated in his letter of commendation to the offender dated 04th May 2021. He said:

“I know you will make a good leader in your cell, the compound, and in your community someday because of the care, respect, and understanding you have shown in your actions.” 

44.	I am satisfied that from all of these character references put together, the offender’s spirituality, the support for the offender’s ability and attitude towards recognizing the wrong he has done, and his willingness to be rehabilitated, are genuine, true and convincing. He has also shown remorse in court and through his guilty plea and payment of bel-kol. I am of the view that the offender has learnt from his mistake and can legitimately be rehabilitated. 

45.	Consequently, serving some time outside of prison will achieve that purpose of rehabilitation and with the view of him living a changed life. 

46.	Whilst I note that the mother of the deceased is reluctant to participate in compensation and she is entitled to feel that way as she has lost a loved one, and no amount of money can bring her daughter back to life, I am also of the view that this court must give the parties an opportunity to reconcile and build relationships, noting that there are two children left behind by the deceased and the offender. Pursuant to the Criminal Law Compensation Act, and the principle in the case of State v Penge [2002] PGNC 90; N2244 (24 May 2002), the Court can make an order for compensation to encourage reconciliation. 

47. 	The court’s consideration of compensation is not only viewed as a means of punishment but also as a means of encouraging reconciliation for this main reason that two precious and innocent lives are left without a mother and a father as a result of the offender’s actions. The two children belong to both lines of the family. They must not be denied their rights to a relationship with their maternal grandmother and other family members of their late mother’s line. It is hoped that through compensation and reconciliation, the children can be free to have and build those relationships. When released from serving partial sentence in prison, it is hoped that the offender will do his best to provide the love, care, custody and protection for his two children who deserve nothing more from him than these. He must not wait for the time that he is released from custody, but where it is safe and in the best interest of the children to do so, to allow them to start to have and build their relationship with their maternal grandmother and other members of their late mother’s family. 

48.	In consideration of all of the above, I deduct the spent time in custody which is three years and nine months, noting that the offender was arrested on the 2 of July 2018. The offender is to serve a balance of 12 years and three months imprisonment in hard labour. I consider the good character reference and am satisfied that the offender can be rehabilitated with stringent conditions. I suspend six years and three months of the prison term. The offender will serve a balance of six years imprisonment in hard labour. 

49.	Upon release after serving time in prison, the offender will be placed on Probation for six years with stringent conditions. 

Conditions on the Probation Order

50. 	The following conditions are imposed in the Probation Order:
 
1)	The probationer shall inform the Probation officer of his intended residential address a month before his release from prison. 

2)	The probationer shall report to the Probation Office within 48 hours from the release from prison. 

3)	The probationer shall not leave his place of residence without the leave of this court and in the course of his six years probation period. If the probationer has to change his residential address, he shall inform the Probation Office of his new or intended address.

4)	The probationer shall perform 600 hours of community work at a worksite to be approved by the Probation Office.

5)	The probationer shall keep the peace and be of good behaviour at all times.

6)	The probationer shall not consume alcohol or any intoxicating substance whilst on probation.

7)	The probationer shall not commit any indictable or summary offences including the summary offences of Breach of Peace, Domestic Violence, and Possession of Dangerous Weapons whilst on probation. 

8)	The probationer shall pay compensation in the amount of K5, 000 to the mother, of the deceased within a period of 12 months from release from prison. 

9)	This matter on the Compensation Order returns to Court after 12 months from date of release from prison at 9:30 am for review on compliance. 

10)	In default of compensation payment of K5, 000 within 12 months from release from prison, the probationer shall serve the balance of the 6 years in prison in hard labour. 

11)	The Probation Officer shall file a report on the responses and progress of the probationer once a year for the six years of his probation term. The report shall be filed at the National Court Registry at the end of each of the six probation years. The first report will be due in one year’s time from the probationer’s date of release from prison. 

12)	In breach of any of these Probation Orders, the probationer’s Probation shall lapse and he shall be arrested and ordered to serve the six years sentence or the balance of it, in prison in hard labour.

Orders accordingly. 
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Public Prosecutor: Lawyer for the State
Public Solicitors: Lawyer for the Defendant