N10350

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 691 OF 2019

THE STATE

V

BERRY MALIAKI
Prisoner

CR NO. 692 OF 2019

THE STATE

V

YAKASING MORGAN
Prisoner

Bulolo/Lae/Buimo: Polume-Kiele J
2021:	16th, 17th, 3rd, 18th & 22nd, November 2nd & 7th December
2022: 	1st March, 4th April, 16th June, 2nd December

CRIMINAL LAW- Sentence - Wilful murder – s 299 (1) - Criminal Code Act – Principal Offenders s 7 (1) (a) (b) (c) and s 8 – Offences committed in prosecution of common purpose - Criminal Code Act – Appropriate penalty.

CRIMINAL LAW – Sentence –Death penalty not mandatory – Court’s discretion under Section 19 (1) (aa) of Criminal Code - Aggravating and mitigating factors and extenuating circumstances taken into account – Appropriate sentence – 20 years less time in pre-trial/sentence detention – Nil suspension.

SENTENCE – Alternative count of murder on co-prisoner – Sentence after trial – Co-prisoner cuts deceased on leg and leaves scene – Takes no further part in killing of deceased – Mitigating and Aggravating factors and degree of participation considered – Appropriate sentence – 18 years less time in pre-trial/sentence detention – Nil suspension.

Brief facts

The prisoners, Berry Maliaki and Yakasing Morgan were each found guilty of one count of wilful murder on 16 June 2022. They were both convicted of the charge of wilful contrary to s 299 (1) of the Criminal Code. 

This is my decision on sentence.

The facts of the case are contained in my judgment on verdict delivered on 16 June 2022. 

Cases Cited
SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418
Avia Aihi v The State [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Goli Golu v The State [1979] PNGLR 653
Manu Kovi v The State (2005) SC789
Ure Hane v The State [1984] PNGLR 105
State v Bernard Hagei (2005) N2913
The State v Yanis Ipiri (2008) N3512
Lawrence Simbe v The State [1994] PNGLR 38
Thress Kumbamong v The State (2008) SC1017
The State v Lotivi Mal, Moses Mal, Emmanuel Ong, and Katherine Mal (2012) N4591
The State v Kepak Langa (2003) N2462
The State v Bongede [2012] N4683
The State v Paguari [2011] N4438
Simon Kama v The State (2004) SC740
Paul Oa Oakare v The State (2001) SC1010
Tony Imunu Api v The State (SCRA No 15 of 2011) 
State v Soso [2015] N6082
The State v Tanabo [2015] N6083
Erebebe v The State [2013] SC1228
Manu Kovi v The State (2005) SC789
Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836
State v Komboni [2015] N5991
State v Carol Alfred [2009] N3602
State v Mavis Uraro (2012) N5164
Mary Bomai Michael vs. the State (2004) SC737
Kuri Willie v The State [1987] PNGLR 298
State v Taulaola Pakai (2010) N4125 

Counsel

Ms. S. Joseph, for the State
Mr. C. Boku, for the Prisoner

RULING ON SENTENCE

2nd December, 2022

1.	POLUME-KIELE J: On 3 November 2021, Ms. Matana of the Prosecution Office presented an indictment against the accused, Berry Maliaki, an adult, and his co-accused, Yakasing Morgan an adult male, each with one count of wilful murder under s 299 (1) of the Criminal Code Act

2.	On 15 November 2021, the prisoners appeared before me charged on an indictment with the murder of the deceased, Amos Yasep. They pleaded not guilty to the indictment and raised a defence of self-defense.

3.	A trial was then conducted to determine the issue of culpability of the accused of the charge of wilful murder under s 299 (1) of the Criminal Code.

4.	On 16 June 2022, the Court returned a verdict of guilty against the prisoners respectively and they were convicted accordingly.

5.	On 6 September 2022, submission was heard on sentence. This is my decision on sentence.

The Penalty Provision

6.	Section 299 of the Criminal Code Act provides for the penalty of wilful murder:

(1)	Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder. 
(2)	A person who commits wilful murder shall be liable to be sentenced to death*. 
*It is however noted that there has been an amendment to this provision and the sentence to death is now amended. The penalty is now “Life imprisonment”.

7.	The maximum penalty for wilful murder is now life imprisonment subject to s 19 of the Criminal Code Act (as amended). 

8.	Section 19 of the Criminal Code states:

19. CONSTRUCTION OF PROVISIONS OF CODE AS TO PUNISHMENTS. 

(1)	In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided– 

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term; and

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and 
… 
…

9.	The State also invoked Sections 7 and 8 of the Criminal Code. Under Section 7 - Principal Offender- Section 7, it reads: 

“(1)	When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it: -
(a)	Every person who actually does the act or makes the omission that constitutes the offence.
(b)	Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.
(c)	Every person who aids another person in committing the
offence.
(d)	Any person who counsels or procures any other person to commit the offence.
(2)	In subsection (1) (d) the person may be charged with-
(a)	Committing the offence.
(b)	Counseling or procuring its commission.
(3)	A conviction of counseling or procuring the commission of an offence entail the same consequences in all respects as a conviction of committing the offence.
(4)	Any person who procures another to do or omit to do any act of such nature that, if he had himself done the act or made the omission, it would have constituted an offence on its part is-
(a)	Guilty of an offence of the same kind; and
(b)	 Liable to the same punishment,
As if he had done the act or made the omission and may be charged with himself doing the act or making the omission.”
Under Section 8 – Offences committed in prosecution of common purpose. Section 8 reads: - 
Where- 
(a)	 Two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b)	In the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose, each of then shall be deemed to have committed the offence”. 

Issues for determination

10.	The issue for determination by this Court is whether the maximum penalty prescribed under s 229 of the Criminal Code (as amended) be imposed on the prisoner? 

Applicable law

11.	The crime of wilful murder is a serious crime and thus the question for this court is to consider whether this present case falls within the worst type of case that warrants the imposition of the maximum penalty of life imprisonment as held in SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v The State [1982] PNGLR 92, Ure Hane v The State [1984] PNGLR 105; Goli Golu v The State [1979] PNGLR 653. 

12.	Section 19 discretionary power provisions as to punishments are as follows: 

“(1) 	In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–
(aa) …
(a) 	a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and
(b) 	a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and
(c) 	a person sentenced on conviction on indictment to pay a fine may be sentenced–
(i) 	to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and
(ii) 	instead of being sentenced to be imprisoned until the fine is paid–to be imprisoned for a term (not exceeding the term provided for in Subparagraph (i)) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and
(d) 	a person convicted on indictment of an offence not punishable with death may–
(i)	instead of, or in addition to, any punishment to which he is liable–be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and
(ii) 	comply with such other conditions as the court may, in its discretion, impose; and
(e) 	a person convicted of any offence on summary conviction may, instead of being sentenced to any punishment to which he is liable, be discharged on his entering into his own recognizances, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a term not exceeding one year; and
(f) 	when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that–
(i) 	he shall appear and receive judgment at some future sittings of the court or when called on within a period specified by the court; and
(ii) 	if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.
(2) 	Imprisonment in accordance with Subsection (1) (c)(i), for non-payment of the fine–
(a) 	shall not extend for a term longer than two years; and
(b)	shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.
(3) 	In a case to which Subsection (1) (c) applies, the court may give such directions as it thinks proper as to the enforcement of the sentence of imprisonment, including a direction that the person sentenced appear at some future sittings of the court or when called on, by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period or any extension of that period.
(4) 	If under Subsection (3) a person directed to appear, or called on by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period, or any extension of that period, does not appear at the required time and place, a Judge may issue a warrant to arrest him and to bring him before a Judge.
(5) 	Imprisonment under Subsection (1) (d) for not entering into a recognizance–
(a) 	shall not extend for a term longer than one year; and
(b)	shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.
(6) 	When a court sentences any person convicted under Subsection (1) (d) to a term of imprisonment, it may further order that–
(a) 	the offender be imprisoned for such portion of that term as it thinks proper; and
(b) 	the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1)(d) but further conditioned that, if called on, he shall appear and receive judgment in respect of his service of the portion of the sentence.
(7) 	A Judge may, on being satisfied that the offender has committed a breach of any of the conditions of a recognizance under Subsection (6), forfeit the recognizance and commit him to prison to undergo the suspended portion of his sentence or any part of it.
(8)[9] [Repealed.]
(9) 	Notwithstanding that restriction of movement is not specified as a punishment for an offence, a court may, in addition to any other punishment or punishments imposed, also impose restriction of movement in accordance with Section 600.
(10) 	When a court is considering the punishment or punishments to be imposed in any case it shall also consider whether, in the circumstances of the case, restriction of movement is an appropriate punishment.

13.	 The Supreme Court has specifically established any sentencing guidelines relating to the crime of wilful murder. I am guided by guidelines set out in case of Manu Kovi v The State (2005) SC789 which I adopt and apply the sentencing guidelines used in that case to this present case. In that case, the Supreme Court has established sentencing guidelines for wilful murder which had left the National Court with wide discretion available to it when fixing a sentence, the Court did carefully consider the sentencing guidelines and gave detailed sentencing guidelines for manslaughter, murder and wilful murder which is useful to consider and can be useful when sentencing for wilful murder.  The various guidelines to be taken into consideration in order for the Court to determine the appropriate sentence for wilful murder offences are on the following scale of sentence for a conviction of wilful murder. 

Sentencing tariff

Category 			Wilful Murder	
1	Plea:
-	Ordinary cases
-	Mitigating factors
-	No aggravating factors.
	-	No weapons used – 

-	Little or no pre-planning – 

-	Minimum force used.

-	Absence of strong intent to do grievous bodily harm.	15 to 20 years
	
2	Trial or plea – 
-	Mitigating factors with aggravating factors.	-	Weapons used – 

-	Some pre-planning – some element of viciousness.

-	Strong desire to do grievous bodily harm –
	20 to 30 years
	
3	Trial or plea 
-	Special aggravating factors – 
-	Mitigating factors reduced in weight or rendered insignificant by gravity of offence.
	Brutal killing –Killing in cold blood.

Killing of innocent, defenseless, or harmless person

Dangerous or offensive weapons used, e.g., gun, axe – 

Killing accompanied by other serious offences.

Victim young or old

Pre-planned and premeditated.

Strong desire to kill	Life imprisonment
	
4	Worst case 
Trial or plea – 

Special aggravating factors
No extenuating circumstances.

No mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.		Death	

14.	This Court has wide discretionary powers given to it under s 19 (aa) and (a) of the Criminal Code. This means that the Court exercise discretion to impose a short term of sentence based on proper principles of law. Section 19(aa) states:

“S19 	(aa) – a person liable to death may be sentenced to imprisonment for life or for any shorter term.”

15.	It is trite that the maximum penalty prescribed for this offence is reserved for the worst form or category of offending for that particular offence. Wilful murder has always been regarded as one of the most intrinsically serious of all offences: Goli Golu v The State (1979) PNGLR 653 and carries a fixed penalty, previously a death penalty but it has been amended so the maximum penalty is now life imprisonment subject to s 19 of the Criminal Code. 

16.	In Ure Hane v The State (1984) PNGLR 105, the Court per Bredmeyer J set out some non-exhaustive list of the most serious instances of wilful murder and he listed these instances as follows: 

(i)	a wilful murder committed in the course of committing a theft, a robbery or rape.

(ii)	a wilful murder of a policeman or a prison warder in the execution of his duty

(iii)	a wilful murder in the course of resisting or avoiding arrest.

(iv)	a wilful murder of a person in police or court custody

(v)	a payback killing of an innocent person.

(vi)	a second or third murder

(vii)	where offender has a long record of violence

(viii)	wilful murder of the Governor General, Prime Minister, Chief Justice, a Bishop, and other VIPs.

17.	It must be pointed out that at the time of the Ure Hane decision, the maximum sentence for wilful murder was life imprisonment, it was then amended to “death” and recently, it has been amended again to “life imprisonment”.

18.	In the State v Bernard Hagei (2005) N2913, the Court said, and I quote:

“There are so many wanton killings happening in the country at will as though life is some form of commodity or a replaceable item that can be borrowed or bought from the hardware shop in town.  Killings in this country are becoming more daring without fear and there is no respect for sanctity of life.  Brutal horrific and cold-blooded killings are becoming too frequent.”

19.	I must say with respect that I adopt and endorse the observations made by the Court in that case and apply it to the circumstances of this present case.  This case was a premediated and cold-blooded murder. The prisoner had no respect for the sanctity of human life. The fight which led to the demise of the victim was unnecessary and could have been prevented. There was no need for such a brutal group attack which led to the death of the deceased. 

20.	In The State v Yanis Ipiri (2008) N3512, the Court stated, and I quote: 

“Life is lived only once.  It is therefore very precious.  The sanctity and value of a human life is more precious than money, gold or wealth and the Courts do take a serious approach to treating life as sacred.  No amount of compensation will ever restore a person’s life.” 

21.	It is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst type of case, under consideration, (SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v The State [1982] PNGLR 92, Ure Hane v The State [1984] PNGLR 105, Goli Golu v The State [1979] PNGLR 653. It is also well settled that each case must be treated on its own merits and its own set of facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38. The Courts have unfettered sentencing discretion under s 19 of the Criminal Code Act and the Courts are not necessarily bound by the maximum and minimum tariffs suggested by Supreme Courts (Thress Kumbamong v The State (2008) SC1017. 

Submission on sentence
22.	Mr. Boku in his submission on sentence, pointed out that there are established sentencing guidelines in relation to the crime of attempted murder. Mr. Boku in his submission contended that this is not the worst type of offence which calls for the maximum penalty of life imprisonment and that this Court should not waste its time in making enquiry as to the circumstances of the victim. He also submits that this Court has wide discretionary powers under s 19 of the Criminal Code Act, which creates an avenue for this Court to deviate from the maximum penalty and decide alternate sentences as established in the case authority of Thress Kumbamong v The State (2008) SC1017. He submitted further that this Court exercise discretion under s 19 (d) of the Criminal Code and impose a sentence term of 20 years under category 2 of the Manu Kovi guidelines because the prisoner has a mixture of aggravating and mitigating factors considering that the deceased provoked the offence. The death was not instant, it was not a surprise attack, and the prisoner is a first-time offender. It was a mob attack, and some co-accused are still at large. The prisoner is aged 65 years and is an old man now. He has voluntarily surrendered to the police and cooperated with the police. He has been in custody since 1 January 2019. Further, the deceased was armed. 

23.	In support of this line of argument, Mr. Boku referred me to a number of case authorities, but I am minded to only refer to case involving group fighting in the case of The State v Lotivi Mal, Moses Mal, Emmanuel Ong, and Katherine Mal (2012) N4591, in which the prisoners were involved in a fight between two groups of people. Sentence reflecting their varying degrees of involvement were imposed. The sentences were 20 years, 20 years, 30 years, and 17 years respectively.  

24.	I must at this juncture point out that this Court note Mr. Boku’s submission that this Court should consider that the prisoner also sustained injuries during the fight and that he was provoked by the deceased in breaking his car windows. This was a case of more than four men attacking one man, who was already chopped on the leg and on the ground. He was helpless and already severely handicapped. There was no further need to cause more injuries. The crime of wilful murder is a serious offence. It should not be taken too lightly, irrespective of what became of the victim or the complainant. 

25.	Mr. Boku then invited this Court to consider that since the prisoner had spent approximately some 10 months in custody awaiting trial, he submits that that time spent in custody is sufficient punishment for an injury that was sutured on the same day and the victim released on medication and antibiotics as per the undated Medical Report by David Manasseh from Bulolo Rural Hospital at page “J” of police hand up brief in the Court File. Thus, the prisoner should be returned to the Community as per the CBC report. Furthermore, this Court also consider rehabilitation (see State v Fimino (supra) instead of imprisonment and that the balance of a sentence term (if any imposed be wholly suspended with orders for good behaviour during periods of suspension. If in breach, the prisoner will be arrested and remanded in Buimo CIS to serve the suspended sentence.
26.	Ms. Joseph for the State in reply submitted that there is no reason provided for the unprovoked attack, it was a vicious attack with a bush knife which the prisoner used to cut the victim on the head. She further submitted that the injury is very serious. Whilst the victim may have survived, this is no justification for such an unprovoked attack and therefore the court must impose a stern punishment. Ms. Joseph submitted also that the Pre-Sentence Report does not speak highly of the accused. There is acknowledgement that the PSR is not a balanced report, there is no confirmation that the accused has paid any compensation nor shown any form of remorse and if he does say he is sorry, this gesture is not genuine. In addition, there is no evidence to show any form of reconciliation and therefore no assumption is to be made by this court on reconciliation or compensation to be made as there are no sufficient details on the accused’s behaviour which will assist in the determination of penalty. 

27.	Ms. Joseph relied upon a number of case authorities to support her submission. However, I will refer only to two of those case authorities as being more relevant to this present case. Firstly, Ms. Joseph has also referred this Court to the case of The State v Kepak Langa (2003) N2462, which although am not bound to follow, I am guided by as it is a useful guide which this Court can adopt and apply to the circumstances of this present case. In that case, the deceased was ambushed by the prisoner and a group of others. The deceased was chopped on the head. The killing was a payback killing by the prisoner’s tribe upon the deceased’s tribe.  The prisoner was sentenced to death. The court decided that this was not a payback killing as the deceased came from the same tribe as the prisoner. This was a killing of a defenseless man in cold blood.  An appeal had been lodged since.

28.	In The State v Bongede [2012] N4683, the prisoner convicted after trial of wilful murder. The prisoner was in his village, entertaining a visiting dignitary when the deceased and his friends were drunk and being a nuisance. The prisoner became angry with them, fought with them, and then attacked the deceased with a bush knife, inflicting multiple wounds from which the deceased died due to excessive blood loss. In determining sentence, the Court considered that there were mitigating factors: spontaneous incident, not premediated, attack on deceased caused by the conduct of the deceased and his friends, offender acted alone, payment of substantial compensation, no prior conviction, good community record and high degree of co-operation with the court. The mitigating factors were strong and warrant a sentence below the middle range. Twenty- four (24) years of imprisonment was imposed.  

29.	Ms. Joseph submitted that in the cases relied upon, the Courts did take into account the circumstances of each case and had exercised discretion under s 19 of the Criminal Code Act to impose a sentence term of years much less than the maximum penalty prescribed under the Criminal Code. Given these factors, Ms. Joseph invited this court to take into account the fact that there is a strong need for both personal and general deterrence, as this attack was an unprovoked attack on the complainant/victim with the use of a lethal weapon, a bush knife. Thus, taking into consideration the comparable sentences alluded to in the cases cited, she submits that a custodial sentencing range of 25 years to life imprisonment in hard labour is appropriate. This is necessary to reflect that we must never lose sight of the fact that life is scared, so we protect and uphold the principle of sanctity of human life.

Determining severity of sentence

30.    Mr. Boku submitted further that the prisoner is a first-time offender and has no prior convictions. He submitted that there are some mitigating factors: there was no planning involved in the offence, it was not a pre-mediated attack, the offender has no prior convictions and has paid some sort of compensation and had been awaiting trial for some time. He further submitted that this case falls within category 2 (the least serious category) of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789 and invited the Court to impose a sentence of no more than 20 to 30 years imprisonment. A number of case authorities were referred to support his contention on the sentencing guidelines which I have noted however, I find these cases cited unhelpful as the circumstances of the cases are not relevant as these case authorities relied upon by the defence are those which involved adults, not completely innocent persons or parties whereas this present case, involved a deceased who is an innocent and helpless child, completely unaware of the brutal and vicious attack upon her. The deceased was struck on the head in her slumber.

31.     Further and in addition, Mr. Boku also relied on the case of The State v Paguari [2011] N4438 which restated the case of Simon Kama v The State (2004) SC740 and invited this Court to exercise discretion to go outside the established sentencing principles in Manu Kovi v The State (supra) and impose a sentence otherwise than the maximum penalty of life imprisonment. In that case of State v Paguari (supra), three co-accused were charged for the offence of murder. In his judgment on sentence, his Honour Salika DCJ (as he then was), in consideration of sentence, did adopt the guidelines stated in the Kama case at paragraph 31: 

“The Supreme Court in Simon Kama v The State (2004) SC 740 said this:

“On the Court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first.  Then allow the offender to make out a case for a lesser sentence.   An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence were evidence is required. Once the offender is able to do that, only than should the Court carefully consider the factors both for and against an imposition of the maximum penalty.  At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind, we are of the view that the guidelines set by State v. Laura (No. 2)20 and Simbe v. The State21 for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

“(a) where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years.

(a)	where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years.

(b)	where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to committed another serious offence, a sentence of thirty-one (31) years to life imprisonment.

(c)	on a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years.

(d)	on a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years.

(e)	where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to committed another offence, a sentence of forty-one (41) years to life imprisonment;”

The accused persons were sentenced to a prison term ranging from 12 to 14 years.

32.    Mr. Boku in his submission invited this Court to exercise its unfettered discretion under s 19 noting however that the maximum penalty be reserved only for the worst type of offences under consideration (Goli Golu v The State (supra) and not to be bound by the sentencing guidelines established by the Supreme Court in the case of Manu Kovi v The State (supra) and that each case be considered on its own merits. Sentencing is discretionary matter for each Court (Thress Kumbamong v The State (supra).

Submissions by the state

33.     Ms Joseph in reply did not agree that this is a category 2 case according to the Manu Kovi guidelines. She submits that this present case is one where the offence falls into the worst-case category. Therefore, the principles established in the case of Manu Kovi category 4 should be followed to determine the severity of sentence. She submits further that this case is considered one of the worst as per the Manu Kovi guidelines in which considerations and factors listed in the case of Ure Hane v The State [1984] PNGLR 105 where killing is considered brutal, horrific killings of a human being. Here, the prisoner showed complete disregard for human life and safety, especially towards the deceased. Although, the offending is not pre-planned, it was horrific and viciously executed. Further, the deceased was chopped on the head, shoulder, legs and when he fell to the ground, he was continuously chopped and struck on the body, head and left shoulder using a bush knife and a grass knife. Further, they left him there on the ground bleeding to death. 

34.      Whilst Ms. Joseph acknowledges that two mitigating factors favour the prisoner and are important considerations, so too are matters relating to his aggravating factors. She submits that this is a case where not only that there was blow to the head, but that the victim is an innocent child and harmless person, who pose no harm to the prisoner, this killing is a vicious cold-blooded killing warranting a sentence of life imprisonment. Ms Joseph submits that a serious crime has been committed and this has occurred within the confines of a home and no amount of amity will bring back the victim to life. This sort of crime is prevalent and further, behaviour which does not value and protect life, must be dealt with.

35.     Ms Joseph referred this Court to a number of case authorities which I have noted and included a number of comparable cases which included a number of homicide cases that I had dealt with. Firstly, this court was referred to the case of Paul Oa Oakare v The State (2001) SC1010 where the appellant killed his 3-year-old son by slashing him with a bush knife and hid the body. He had earlier tried to drown him. He lied about the whereabouts of the deceased for some time. On arraignment, the appellant claimed to be mentally affected. A psychiatric report was tendered which indicated that the appellant may have had a “brief psychotic episode” but raised no defence of “insanity” under s 28 of the Criminal Code. His Appeal was allowed, and a sentence of 20 years was imposed in substitution of life sentence.

36.     In the case of Tony Imunu Api v The State (SCRA No 15 of 2011) unnumbered judgment of the Supreme Court, a fourteen-year-old school student had his skull crushed in different places and his body was dumped in an isolated location. The deceased was missing from school for two days. The deceased’s body was located by police with assistance from the prisoner. The prisoner was sentenced to life imprisonment.  In dismissing the appeal, the Supreme Court stated that the killing was “blatant and complete disregard for the sanctity of a young life which was terminated prematurely”; which sentiments I adopt and apply to this present case. 

37.     Further, in the case of State v Soso [2015] N6082, the prisoner used a bush knife to chop the deceased on the neck and body without any reason at all. Although it was a plea matter, the court considered that the offending occurred in a domestic situation and the attack was cold-blooded murder and the prevalence of such offending warrants a sentence term of life imprisonment. Similarly, in the case of The State v Tanabo [2015] N6083, the prisoner had an argument with his wife and got a bush knife and cut his wife three times on the head and also on her body. She died instantly. The court considered that the aggravating factors was that it was a pre-mediated attack, it was a vicious attack, there was a strong desire to do grievous bodily harms and the use of an offensive and lethal weapon, loss of life and prevalence of the offence. There was a need for punitive sentences for such a murder which was committed with such impunity. He was sentenced to life in prison. These sentences involved adults.

38.     In the case of Erebebe v The State [2013], SC1228, this is a cross-appeal by the Office of the Public Prosecutor pursuant to s 24 of the Supreme Court Act in which the Public Prosecutor requests the Court to impose the sentence of death upon the prisoners for the crime of wilful murder under s 299 (1) of the Criminal Code. The prisoners were each convicted of nine counts of wilful murder following a trial. They were sentenced to 30 years imprisonment with hard labour for five counts and life imprisonment for the remaining four counts. It must be noted that the four remaining counts were in relation to the four children (aged 4 and 5 years old) who were dragged from the vehicle and cut on their heads with bush knives. The Supreme Court in that case was satisfied that the payback killing of innocent children and the ambush killing, akin to a highway robbery, fall within two categories suggested by Bredmeyer J as being within the most serious kind of wilful murder”. The cross-appeal was upheld, and all sentences were set aside. The prisoners were all sentenced to death. 

39.     Although the sentence imposed related to a wilful murder case, the principles and considerations applied are factors which equally applies to a murder case. In this case, the attack was unwarranted, and the prisoner displayed a complete disregard for the sanctity of a young life which was prematurely terminated. I agree with Ms. Joseph that a life was prematurely terminated.

Decision making process.

40.     To determine the appropriate penalty, I will adopt the following decision-making process. The maximum penalty for murder under Section 300 (1) of the Criminal Code is subject to s 19, life imprisonment. The court has a discretion whether to impose the maximum by virtue of Section 19(1) (a) of the Criminal Code, which states:
“In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided … a person liable to imprisonment for life or any other period, may be sentenced to imprisonment for any shorter term”. 
41.     Regarding the sentencing guidelines for murder, I refer to and adopt the principles adopted and applied by Supreme Court in the leading case of: Manu Kovi v The State (2005) SC789 and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836. In Kovi the Supreme Court suggested that murder convictions could be put in four categories of increasing seriousness. I consider that category 4 of the Manu Kovi guidelines is appropriate and is the starting point for sentence.
Application of the Law
42.      According to law (s 300 (1) (a) of the Criminal Code, the maximum punishment for murder subject to s 19 is life imprisonment, it is however noted that the maximum punishment is of course reserved for the worst case of homicide. 

43.     It is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst type of offence; and thus, the question for this court is to consider whether this present case falls within the worst type of offence that warrants the imposition of the maximum penalty of life imprisonment as held in SCR No 1. Of 1984: Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v The State [1982] PNGLR 92, Ure Hane v The State [1984] PNGLR 105. 

44.     Bearing all these arguments in mind, this court now asked itself as what type of consideration would be applied in determining the severity of penalty to be imposed?  If incarceration was to be imposed, what purpose will incarceration bring to the community at large, particularly when such atrocity occurs within family circumstances? Thus, regard is had to the views expressed by the Supreme Court in Thress Kumbamong v the State (2008) SC1017, where concerns were expressed in relation to the sufferings that women and children in this country endure at the hands of their spouses or partners from violence ranging from threats to beatings to sexual assaults. Given those sentiments, what type of protection would the community enjoy from putting the prisoner away? Firstly, the immediate community would at least be safe from a member who does not refrain from taking the law into his own hands.

45.      Secondly, incarceration should also be seen as a deterrent to other men out there that such behaviour is unbecoming of fathers and a community member who fails to protect its members and not prematurely terminating their life. 

46.      In order to determine whether or not this case falls within the worst types of offences that warrant the imposition of the maximum penalty of life imprisonment, this court considered the case of Manu Kovi v The State (supra) which has established guidelines for sentencing in all homicide cases. The crime of murder is very serious case and whilst there were contentions that the actions of the prisoner were unintentional, this assertion alone does not justify the taking away of an innocent life. There is no reason provided for the killing, it was a vicious attack with a bush knife and grass knife which the prisoners had used to strike the victim on the head with intention to kill the deceased. In applying the principles established in Manu Kovi v The State (2005) SC789 to determine the severity of sentence where the prisoner pleaded guilty to the wilful murder of his wife and was sentenced to life imprisonment. 

47.      To assist determine what is the worst case of homicide, I have perused the file and evidence in the court disposition regarding the circumstances of the killing, the aggravation or extenuation of the crime or mitigation of the offence. To assist me determine an appropriate penalty, I have taken into consideration all relevant mitigating and aggravating factors including the method as to how these factors are weighed. In that I have to distinguish between ordinary or common mitigating factors including special mitigating factors. For instance, a normal ordinary mitigating factor here consist of the following: (i) the accused’s prior good character, (ii) stable good family background, (iii) education and religious background, (iv) first offender, (v) guilty plea, (vi) remorse and (vii) co-operation with the police. In circumstances where there are special mitigating factors to consider, this would include the offender’s (i) very young or very old age, (ii) poor health and (iii) payment of compensation.

48.     The payment of customary compensation is an area which is still evolving although, the practice is commonly used in traditional societies of Papua New Guinea. In addition, the amount or value of compensation also varies and is very much dependent on the special circumstances and values of each and every traditional society. Thus, how the court weighs these compensation payments is also subject to the different practices of custom in traditional societies of PNG. However, the Courts are guided by the procedure and principles prescribed under the Criminal Law (Compensation) Act 1991 which prescribes the maximum amount of compensation payment at K5, 000.00. However, there are cases where the amount of compensation has exceeded this amount; just to mention a few cases (State v Komboni [2015] PGNC 63; N5991 (17 June 2015) N5991) (K10, 000.00); State v Carol Alfred [2009] N3602 (K15, 000.00) and State v Mavis Uraro (2012) N5164 (22,000.00). 

49.      With regard to aggravating factors, these include whether there was deliberate intention to harm, the use of dangerous or offensive weapon, pre-planning and pre-meditation, duration of the attack, multiplicity of injuries inflicted on vulnerable parts of the body, the high degree of force used, nature and extent of the injury inflicted on vulnerable parts of the body, group involvement and the infliction of other cruel or inhuman acts in effecting the crime, the special position of the victim in the community, whether victim is under disability such as old or young ages. The cases do not distinguish between ordinary and special aggravating factors. However, depending on the particular circumstances of the case, some of these aggravating factors may be regarded as special as or are graver than others and may warrant the imposition of severe punishment (Manu Kovi v The State (2005) SC789). 

50.     For this present case, I find that there was deliberate intention to harm, the use of dangerous or offensive weapon, duration of the attack, multiplicity of injuries inflicted on vulnerable parts of the body, the high degree of force used, nature and extent of the injury inflicted on vulnerable parts of the body are evidence of a more grave aggravating factors which warrant the imposition of a severe punishment and thus say that this type of crime is categorized to be one of the worst types of homicide and level it as a case category 3 case (Manu Kovi v The State (supra).

51.     Having heard submissions on sentence from both the Prosecution and Defence Counsel on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner. This Court now has to consider what is to be an appropriate sentence to be imposed in this present case.

52.       Indeed, the death was tragic and unwarranted, for those family and community members affected by the victim's death. However, remorseful the prisoner appears to be, no amount of amity will bring the victim back to life.  This sort of crime is prevalent and behaviour which does not value and protect life must be dealt with. 

53.      Too often the women, children and vulnerable members of the community are subjected to uncontrollable and physical abuse of their husbands, partners, and fathers and members of their community in a family surrounding such as this. Thus, there has to be stern punitive actions taken to protect the vulnerable from such brutality (Mary Bomai Michael v. the State (2004) SC737) where the Supreme Court expressed the views that the "The community looks to the Courts for justice and for the protection of its interest...” For this present case, a young life has been taken away with such brutality.

54.      For the present case, a serious crime has been committed and this has occurred within the confines of a family home and community area.  This court is minded to thinking that in such a family relationship, there should be understanding between the parties as they are known to each other and live within proximity of each other. Where circumstances permit, expression of good will and common sense must prevail. In the prisoners’ case, they chose to act in such a manner that had resulted in the unlawful killing of Amos Yasep, the deceased. 

55.     Thus, in the consideration of the factors outlined above, I am guided by the principles held in Manu Kovi guidelines and will apply the upper range of category 3 sentencing tariff applied in Manu Kovi case (supra) of life imprisonment to be appropriate penalty under the circumstances.  

56.      Applying these principles to this case, it is difficult to apply some discretion in a difficult domestic situation such as this. It is therefore a situation where this attack is a cold-blooded murder, and such attack are prevalent in Papua New Guinea and must be dealt with accordingly.

57.     With regard to the prisoners’ pleas for leniency and being first time offenders in court, I restate the position taken and views expressed in the cases such as  this in The State v Soso (supra) and The State v Tanabo (supra) where I had adopted and distinguished the statement made in the cases of Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128  where youth was considered as a mitigating factor or the case of Kuri Willie v The State (1987) PNGLR 298 where Hinchliffe, J (as he was then) discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first time offenders and the need to consider alternative mode of punishment to imprisonment. However, although this prisoner is a first-time offender and young man, the crime of murder which is committed with such impunity must carry with it some serious penalties as a deterrent factor. I have however, adopted the principle applied by Hartshorne J in the State v Taulaola Pakai (2010) N4125, where he stated that:
“Courts should not lose sight of its duty to impose what is a just and fair punishment on an offender." A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."
58.     Given this view, I am inclined to disregard the recommendation presented in the PSR Report. I accept the submission made by the State that this is a case where there is a strong need for both personal and general deterrence.  The assault was unprovoked and that a lethal weapon was used.  No indication or information has been provided before this court of any moves towards compensation or reconciliation. Furthermore, no material has been presented that warrants suspension of any part of the sentence.

59.    In these circumstances, this court considered that incarceration is an appropriate penalty. Consequently, the following sentences are imposed: 

(i)	 Berry Maliaki is sentenced to 20 years imprisonment with hard labour less the period of 3 years 11 months 2 days being the period that the prisoner has been held in custody pursuant to s 3(2) of the Criminal Justice (Sentences) Act.

(ii)	Yakasing Morgan is sentenced to 18 years imprisonment with hard labour less the period of 3 years 11 months 2 days, being the period that the prisoner has been held in custody pursuant to s 3(2) of the Criminal Justice (Sentences) Act.

Sentence
60.      Having convicted Berry Maliaki, of one count of wilful murder, he is now sentenced as follows:
Length of sentence imposed: 			20 years.	
Pre-sentence period deducted:			3 years, 11 months 2 days	
Balance of term of sentence to be served:	16 years, 28 days. 
Amount of sentence suspended:			Nil	
Time to be served in custody:			16 years 28 days.

61.      Having convicted Yakasing Morgan, of one count of wilful murder, he is now sentenced as follows:
Length of sentence imposed: 			18 years.	
Pre-sentence period deducted:			3 years, 11 months 2 days.	
Balance of term of sentence to be served:	14 years, 28 days. 
Amount of sentence suspended:			Nil	
Time to be served in custody:			14 years 28 days.

Sentenced accordingly.
__________________________________________________________________
Public Prosecutor: 	Lawyers for the State	
Public Solicitor:  	Lawyers for the offender