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State v Injewa [2022] PGNC 495; N10016 (15 November 2022)

N10016

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 960 OF 2022

STATE

V

PATSON INJEWA

Popondetta: Wawun-Kuvi, AJ
2022: 26^th October, 2^nd & 15^th November

CRIMINAL LAW-SENTENCE-Guilty Plea-Murder, s 300(1)(a) Criminal Code-Youthful Offender- Use of a bush knife- Strong Intent to do grievous bodily harm-Sentence of 20 years.

Cases Cited

State v Kopa [2022] PGNC 275; N9729
State v Hago [2019] PGNC 148; N7870
State v Soni [2019] PGNC 84; N7776
State v Kondo [2018] PGNC 369; N7483
State v Gideon [2018] PGNC 242; N7340
State v Asep [2018] PGNC 144; N7220
State v Pinapang [2017] PGNC 16; N6616
State v Ururu [2015] PGNC 291; N5980
Mikoro v State [2015] PGSC 12; SC1424
State v Kare [2013] PGNC 379; N9037
State v Wamingi [2013] PGNC 329; N5723
State v Wakupa [2012] PGNC 229; N4783
State v Matai [2011] PGNC 26; N4256
Manu Kovi v The State (2005) SC789
State v Wangu [2001] PGNC 34; N2170
Lialu v The State [1990] PNGLR 487

Kalabus v The State [1988-89] PNGLR 193
Goli Golu v The State [1979] PNGLR 653.

References

Criminal Code Ch 262
Criminal Justice (Sentences) Act

Counsel

Mr Dale Digori, for the State
Mr Emmanuel Yavisa, for the Juvenile

SENTENCE

15^th November, 2022

1. WAWUN-KUVI, AJ: Patson Injewa (offender) like many young men these days, brandish knives openly and use them more too often when angry or under the influence of liquor.
   
2. In this case, Patson Injewa decided to enter John Taylor Toya premises under the influence of liquor while armed with a long bush knife. He used profanity and cut trees. When he saw Jonah Gaso, he swung the knife at him but missed. Jonah Gaso ran off. John Taylor Toya on hearing the commotion stepped out of his house to investigate. Patson Injewa cut him on his left leg. He fell to the ground in pain. Patson Injewa swung the knife and cut him on his head. He then ran off.
   
3. These are the facts in which he has pleaded guilty to. I must now decide the appropriate penalty.

The Charge

4. The offender was convicted following his guilty plea on the charge of Murder under section 300 (1) (a) of the Criminal Code.

Penalty

5. The maximum penalty is life imprisonment subject to section 19 of the Criminal Code.
   
6. The maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.

Personal Antecedents

7. The offender is 18 years old and is from Konje Village, Oro Bay LLG, Popondetta, Northern Province. The offender has two brothers and a sister. His parents are both alive and are subsistence farmers.
   
8. He attended school up to Grade 7 at the Kikiri Primary School. He did not further his education.

Allocutus

9. The offender stated:

“I want to say sorry for breaking the laws and Constitution of the country. I want to say sorry to the Court Officials for sitting and hearing my case. I want to say sorry to John Taylor. I want to say sorry to my family and my community. The family of John Taylor demanded K5000 from my family. My family left the Oil Palm Block for 10 months. Thankyou Your Honour. I ask for a lenient sentence in light labour at CS. That’s all.”

10. I find from his statement that he has fully appreciated the gravity of his offending and the consequences thereof. From his early cooperation with police and his early guilty plea, I accept that he is truly remorseful: see Kalabus v The State [1988-89]^[1] as to genuineness of remorse and contrition.
    

Sentencing Guidelines

11. Sentencing guidelines do not curtail the sentencing court’s discretion. They assist to provide parity in sentencing. Each case is decided upon its own peculiar circumstances: Lialu v The State [1990] PGSC 16; [1990] PNGLR 487 (30 November 1990).
    
12. I reject Mr Digori and Mr Yavisa’s submission that this case falls within the second category of the guidelines in Manu Kovi v The State (2005) SC789. Given the factual circumstances of the case, I find that it falls within the 3^rd category which attracts a sentence between 20-30 years.
    

Comparable cases

13. Mr. Yavisa submitted the following comparable cases:
    
14. State v Kopa [2022]^[2], Wawun-Kuvi AJ: The offender pleaded guilty. The offender and others chased the deceased. Police followed the crowd. Other males ran off on seeing the police vehicle. The offender pulled a small knife and stabbed the deceased multiple times on his body. The offender stopped when a police officer discharged a firearm into the air. The offender was sentenced to 12 years imprisonment.
    
15. State v Kopa [2022] is factually distinct because there was present strong de facto provocation. The deceased had attacked the offender by striking him with an iron bar. The offender did not take time to consider his action and urged by others, chased the deceased and stabbed him.
    
16. State v Kondo [2018]^[3], Miviri, AJ (as he then was): The offender pleaded guilty. He was angry with his brother over an oil palm harvest. He got a bush knife and cut his brother on both his hands and legs. The deceased died from loss of blood. He was sentenced to 25 years imprisonment.
    
17. State v Asep [2018]^[4], Miviri, AJ (as he then was): The offender pleaded guilty. He was 20 years old at the time of the offence. He and the deceased were working on a garden plot. The offender without any explanation picked up a bush knife and started slashing the deceased. The deceased managed to get to his feet and run off. The offender chased after him and cut his head off. The offender was sentenced to 26 years imprisonment.
    
18. State v Kare [2013]^[5], Toliken J: The offender pleaded guilty. He was aged 19 years at the time of the offence. He was drinking with the offender when an argument erupted between them. A physical fight ensured. The deceased assaulted the offender and one other. He then left the party shouting that he would return with a homemade gun. The offender angered ran after him and stabbed him multiple times in the chest with a bush knife. The Court found that it fell within the 2^nd Category of the Manu Koivi guidelines but imposed a sentence of 15 years imprisonment because of the mitigating factors which included the youthfulness of the offender.
    
19. This case distinguishable to State v Kare [2013] and far more serious. Here the deceased was an innocent person. He came out to find out what happening outside and was attacked by the offender.
20. The State submits the following cases:
    
21. State v Gideon [2018]^[6], Numapo, AJ (as he then was): The offender Willie Gideon was drunk and asked one of the deceased friends for money. His demanded was refused. He swore at the deceased friend. He was then assaulted. He left and he returned with his co offender Sony Yauri. They chased the deceased and his friends. Sony Yauri threw stones at the deceased friend, whilst Willie Gideon took out a knife and stabbed the deceased. Both offenders were in their early 20’s. Both offenders were sentenced to 18 years imprisonment.
    
22. State v Pinapang [2017]^[7], Cannings J: The offender pleaded guilty to the murder of his mother. He was 20 years old at the time. He was gardening with his father when his mother arrived. His father left them in search of mustard. While he was away, some form of argument erupted, and the offender cut his mother on the neck. She died. The community described the offender as a heavy drug user and did not want him reintegrated in the community. He was sentenced to 21 years imprisonment.
    
23. State v Ururu [2015]^[8], Cannings J: The offender pleaded guilty to killing his stepsister. He hid behind a coconut and was waiting in ambush. When she finished her activities at school and was walking home, the offender grabbed by her hair and cut her across the neck. Her jugular vein was severed. The offender was 19 years old, and the deceased was 13 years old. The offender was sentenced to 30 years imprisonment.
    
24. State v Matai [2011]^[9], Cannings, J: The offender pleaded guilty to the murder of his brother-in-law. He was upset at the treatment of his sister by the deceased. On the day of the offence, he came upon his brother collecting coconuts in his plantation. He argued with the deceased. He then cut the deceased using a bush knife on various parts of the body. He was sentenced to 22 years imprisonment.
    
25. I have also found a similar case to the present case. The difference is that it was a trial, and the present case is a plea.
    
26. Mikoro v State [2015]^[10]: The appellant appealed a sentence of 20 years. He was convicted following a trial. The appellant was drunk. The appellant had an argument with another person. He armed himself with a bush knife and went in search of that person. He came across three men. One of who was the deceased. He thought one of the men was the person he had earlier had an altercation with. He swung the knife and cut the deceased who was a totally different person. The deceased was cut on the head and died instantly. The appeal was dismissed and the sentenced of 20 years was confirmed.

Culpability

27. The offender did not plan to kill the deceased. He says that he was searching for his enemy who had entered the deceased premises. According to his section 96 statement and ROI, he was looking for a Maisel Dino.
    
28. The offender and Jonah Gaso were completely different people.
    
29. Whilst the offender did not plan to attack the deceased, he admits to grabbing a bush knife and arming himself and purposely venturing out in search to cause bodily harm to Maisel Dino. This is indicative of a calculated act on the offender’s part.
    
30. The offender was given an opportunity to desist in his search for Maisel Dino when Jonah Gaso ran off. However, he did not relent but proceeded and cut the deceased.
    
31. The deceased and Jonah Gaso were at their home going about their own activities. It was the offender who entered their premises in search of someone else and started cutting their trees and attacking them.
    
32. Whilst the offender was intoxicated, I find that it was not to a level that distorted his mental faculty. He clearly has a clear recollection of cutting the deceased and attempting to cut Jonah Gaso.
    
33. I find that he has a high degree of culpability.
    

Aggravating Factors

34. I have considered the submissions and find the following to be aggravating:
    
    • (1) A life has been lost.
    • (2) The offender used a bush knife. The photograph depicts that it is a long knife. This is an implement that people use to cut timber and clear the bush for gardens and homes. It is used to slaughter livestock. This is a lethal weapon when used inappropriately as in the present case.
    • (3) The offender cut the deceased twice.
    • (4) The force used was significant. The medical report or autopsy report described the wound as 12 cm long and 15 cm deep. The wound was open and brain matter was exposed.
    • (5) The force and the location of the wound is indicative of a strong intent to cause grievous bodily harm.
    • (6) The deceased was at his own home and came out when he heard the commotion outside. The offender had unlawfully entered his premises and was swearing and cutting his trees. He did nothing to incur the wrath of the offender. If indeed the deceased was armed with some weapon, given the facts and the admissions by the offender that he only realized that he attacked the wrong person after the deceased fell; the deceased was warranted to arm himself because he was an innocent person whose home was being invaded, his property being destroyed, and his person being attacked.

Mitigating Factors

35. The following are mitigating:
    
    • (1) He cooperated with police and made early admissions.
    • (2) He made early admissions at his committal hearing.
    • (3) He pleaded guilty.
    • (4) He is a youthful first-time offender. However, I find that his youthfulness is diminished by the gravity of the offence.
    • (5) I accept that he has expressed genuine remorse and regret for his actions. This is demonstrated by his admissions since arrest.

Pre-Sentence Report

36. I thank the Probation Officer Mr. Wep Ninau for his comprehensive and timely Pre-Sentence Report.
    
37. The Ward 18 Councilor Mr. Napoleon McKoda describes the offender as a violent person. He has a history of petty crimes and is a consumer of home brew liquor or what is better known as “Eveka”. The offender causes a lot of problems in their community. Two weeks prior to the offence, the offender was detained at Popondetta Police Station for allegations of robbery.
    
38. The Ward 17 Councilor Mr. Hennington Binjari shares similar views as Mr. Napolean McKoda. He says the murder involving young persons is becoming prevalent in the province and asks the Court to impose a sentence that will deter likeminded individuals.
    
39. The Village Court Magistrate, Mr. Henry Onya shares similar views regarding the offender. He states that there has been an increase in crime in their area and asks for a deterrent sentence.
    
40. The deceased father David Touia described his son as being an intelligent young man. Out of his siblings, he appeared to have a promising future. He was the last child. He was attending Holy Cross Primary School and was in Grade 8 at the time he was killed. He says that the attack on his son was brutal. His family spent about K17, 000.00 as burial expenses which included K500 for the autopsy. The offender’s family did not contribute to any funeral expenses and his family did not make any demands for compensation. He asks the Court to impose a sentence of life imprisonment.
    
41. The Chief of Kurou Clan, Mr. Hillary Injewa says that both the deceased and the offender’s fathers are from Kurou Clan. Their fathers are first cousins. The deceased mother is his younger sister and the offender’s father is his older brother. Because he is the clan leader, he decides the terms of the usage and benefits of their clans oil palm block. The offender’s claim about the deceased family taking over the oil palm block is misleading. Following the death of the deceased, the offender’s family home was burnt and the situation is tense. He stopped the offender’s family from harvesting any oil palm.
    
42. The father of the offender Patson Injewa Senior says that whilst he sympathizes that his son will not return home for a very long time, he acknowledges that his son must serve a prison term for the offence in which he has committed. His family lost everything when their home was burnt as retaliation for the deceased death. He has relocated his family to another village and has plans to return subject to him hosting a reconciliation ceremony.
    
43. The Probation Officer does not recommend Probation.
    

Consideration

44. This a tragic case where one cousin has caused the death of another. The death was because the offender ventured out to attack another person but instead, he brutally slayed his own cousin. He realized too late when his cousin was already on the ground.
    
45. In Papua New Guinea where families are close knit, this offence had caused damage to family relationships. The offender’s family has been forced out of the clan and the usage of the Oil Palm block. Their family home was destroyed. They live in another village. This is the aftermath of the offender’s conduct.
    
46. His family will not get to see him for a very long time and the deceased family has lost a son that they will never see again.
    
47. This is a prevalent offence in all parts of Papua New Guinea. It is very prevalent in Northern Province. The use of bush knives and grass knives to kill, maim or rob people in this Province is prevalent. Young men openly carry knives around Popondetta town and use them without hesitation or regard to the sanctity of human life. The type of killings with the use of bush knives and grass knives in this province are brutal and cold blooded. The number of cases in this circuit alone involving young men and the use of bush knives or grass knives is demonstrative of how prevalent this type of offence is.
    
48. In this case, the offender intentionally set out to cause serious bodily harm to someone. He carried a long bush knife and attacked one innocent person who ran away. When the deceased came out, he attacked the deceased. Not once but twice. A young life has been prematurely lost and can never be replaced.
    
49. Whilst he is 18 years old and a young person, considerations for his age are diminished by the gravity of his offending and his prior continuous acts of violence and disorderly behaviour against the members of his community.
    
50. In considering all the foregoing matters which include the aggravating and mitigating factors and the relevant sentencing principles, the offender is sentenced to 20 years imprisonment.
    
51. Pursuant to Section 3(2) of the Criminal Justice (Sentences) Act, the pre-sentence custody period of 9 months, 6 days is deducted. The offender shall serve the balance of 19 years, 2 month, 3 weeks and 1 day.
    
52. This is a violent and prevalent offence and a life had been lost. Suspension is not appropriate.
    

Orders

53. The Orders of the Court are as follows:
    1. The prisoner is sentenced to 20 years imprisonment.
    2. Pre-sentence custody of 9 months, 6 days is deducted.
    3. The offender shall serve the balance of 19 years, 2 months, 3 weeks and 1 day in hard labor at Biru Correctional Institution.

_______________________________________________________________
Office of The Public Prosecutor: Lawyer for the State
Office of The Public Solicitor: Lawyer for the Defence

^[1] PNGLR 193 (27 October 1988), per Kapi, CJ :“Remorse and contrition are factors weighed in the matter of sentence in favour of accused persons, particularly if they are manifested in a plea of guilty. Whether remorse or contrition are shown by a plea of guilty depends upon the time and circumstances in which the plea is advanced. The earlier the expression of remorse or contrition after the commission of the offence the more favourable it will be for the accused”.
^[2] PGNC 275; N9729 (30 June 2022)
^[3] PGNC 369; N7483(27 September 2018)
^[4] PGNC 144; N7220 (16 April 2018)
^[5] PGNC 379; N9037 (9 August 2013)
^[6] PGNC 242; N7340 (3 July 2018)
^[7] PGNC 16; N6616 (3 February 2017)
^[8] PGNC 291; N5980 (4 June 2015)
^[9] PGNC 26; N4256
^[10] PGSC 12; SC1424 (1 May 2015)