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State v Mandar [2022] PGNC 404; N9847 (5 August 2022)

N9847

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 380 OF 2021

THE STATE
-v-

MALAWA MANDAR

Madang: Geita J
2022: 13^th May; 2^nd &5^th August

CRIMINAL LAW – Sentence - guilty after trail – Wilful Murder - Section 299 (1) (a) of the Criminal Code.

CRIMINAL LAW – Sentence – Favourable pre-sentence report paled by aggravating factors and sentencing consideration in Manu Kovi.

Cases Cited

Goli Golu v The State [1988-89] PNGLR 653
Lawrence Simbe v The State [1979] PNGLR 38
Manu Kovi v The State [2005] SC785
Public Prosecutor v Don Hale [1998] SC564
The State v Risipu [2021] N9325
The State v Kingsford Kari & Clive Dugumari [2015] N6017
The State v Vincent Itaar & 3 Ors No.2 [2013] N5558
Ure Hane v The State (1984) PNGLR 105

Counsel:

Mr. Francis Popeu, for the State
Mr. Noel Loloma, for the Accused

JUDGMENT ON SENTENCE

5^th August, 2022

1. GEITA J: The accused was found guilty after trial on one count of wilful murder contrary to Section 299 (1) (a) of The Criminal Code Act. He pleaded not guilty and trial ensued. This section, subject to s.19 Criminal Code attracts a maximum life imprisonment.

2. The facts as found by the court on the conviction following trial are these: On the 8 July 2022 between 3pm and 5 pm at Wadan village in Sumkar District the accused was drinking alcohol with three of his friends. After drinking alcohol/yawa and whilst under the influence of such drink, armed themselves with offensive weapons and went looking for the deceased Wesley Joe. Upon finding the deceased at Joseph Willie’s premises they attacked him with their weapons. The accused was the main aggressor and caused extensive bush knife injuries to the victim’s neck, legs which resulted in his death. His three friends were acquitted after trial. This sentence is for the accused.
3. During allocutus the accused apologised to the victim and his family members. He also apologised to the Court, CS and Lawyers and to his family. He said his family has paid K1000 plus a pig to the victim’s relatives. He said he was married with 2 children, but his wife has since left him and remarried to another man and does not know where his children are. He said he has been in custody for more than 2 years and during those time there were three instances of mass break outs, but he has chosen to remain behind and attended to his case. He asked to be considered for probation or to be put on a short time in prison.

4. No prior convictions were recorded against him. As to aggravating factors, a life was taken, dangerous weapon was used, a bush knife and prevalence. As to mitigation factors, the accused is a first-time offender with no prior convictions, prisoners expressed remorse and paid some compensation in cash and kind valuing approximately K3000.00.

5. A pre-sentence report detailing his family background, work experiences and future plans were submitted into Court. He is aged 34, married with 3 children and comes from a family of four siblings. His children are aged between 5 years down to 15 months. His elder sister has taken care of his children as his wife has since left for another man. He presents a very favourable community acceptance and is said to be very quiet and committed to his day job as a “lock saw operator”. His former employer spoke very highly of his honesty and hard worker. A former ward member of Wadan village attributed him as a good citizen and said his community was involved in contributing over K1000 towards his compensation payment. On her part the probation officer recommended that the accused was not a danger to his community and recommended his suitability for probation. Her recommendations were largely based the complainant’s views of a non-custodial sentence with peace and reconciliation since restored.

Defence Submissions
6. Counsel of defence Mr Loloma submitted for a sentence below the lower range of category 2 of wilful murder cases in Manu Kovi. A sentence between 20 – 30 years considered appropriate in light of the following considerations: That the prisoner’ s co- accused persons were acquitted of the same charge with the prisoner now left to take full responsibility of their actions, adding that Court consider the case of Lawrence Simbe v The State [1979] PNGLR 38. Mr Loloma submitted against the use of the maximum penalty as its best reserved for the worst types of cases. (Goli Golu v The State [1988-89] PNGLR 653 and Ure Hane v The State [1984] PNGLR 105. Furthermore, in the two comparative cases referred to the Court under the same section the prisoners were sentenced within the ranges 20 to 25 years respectively. The first case involved the use of a knife in the killing: (The State v Kingsford Kari & Clive Dugumari [2015] N6017. The second case involved the use of a bayonet as a weapon on the deceased’s body by three prisoners: (The State v Vincent Itaar & 3 Ors No.2 [2013] N5558.) State v Risipu [2021] N9325. All the prisoners were found guilty after trial. Mr Loloma submitted for similar sentences within the ranges imposed in the two cases.

Prosecution Submissions.

7. Mr Popeu submitted for a head sentence of 30 years to maximum life imprisonment based on the sanctity of a life being taken away unnecessarily. As to the accused’s aggravating factors, he submitted that the killing was by a group upon an innocent person for no apparent reason. The group committed the crime whilst under the influence of alcohol and went out to kill the deceased. As to the payment of some compensation Mr Popeu submitted that no amount of compensation would replace a life: (Manu Kovi v The State [2005] SC785). He submitted that the sentence must uphold and reflect the sanctity of live. As to suspension of some of the sentence Mr Popeu submitted that there was no justification for this to be considered.

8. As to the Court’s invitation for submissions on the case of Public Prosecutor v Don Hale [1998] SC564 in light of the accused’s favourable pre-sentence report, Mr Popeu submitted that the principles in favourable pre-sentence reports in Manu Kovi (supra) remain superior and ought to take precedence. Mr Loloma submitted for a suspension.

Decision making process

9. I state at the outset that four persons were indicted for wilful murder however three were acquitted, leaving the accused to answer for this crime. It is not disputed that they were all drinking alcohol or yawa and whilst being intoxicated, they all went looking for the deceased on suspicions that he was having an adulterous affair with Nathan Karip’s wife. Under those circumstances it is quite probable to infer that his actions were fuelled by the energy he drew from his three friends. Having considered the circumstances surrounding this death I am satisfied that his ultimate sentence will be reflected in this regard. As regards his favourable pre-sentence report warranting a suspended sentence as per Public Prosecutor v Don Hale [1998] SC564 this case is paled by sentence considerations as stated in the case of Manu Kovi (supra). The accused’s prior good character and first offender falls within what is termed as common or ordinary mitigation factors. As to Mr Popeu’s submission for a term of 30 year or life is considered superfluous, in my view as maximum sentences are best reserved for the worst type of crimes. Notwithstanding that a life has been lost I do not think this crime fits into the most heinous of crimes.

10. I take judicial notice of your concerns for your young family, and you are a first-time offender, however your aggravating factors outweigh your mitigating factors in that the victim received multiple wounds resulting in instant death and the attack was vicious on an innocent person. The fatal wounds were inflicted on his head and neck, normally considered as vulnerable parts of the body. Due to the foregoing reasons, I sentence you in this manner as a form of personal and public deterrence. Such attributes fall under category 2 of wilful murder cases in Manu Kovi v The State (supra).

Court Order

11. You are sentenced to a head sentence of 20 years in hard labour of which 2 years will be suspended. You are to serve 18 years minus your pretrial custody period.

Sentence accordingly.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused