N10355

PAPUA NEW GUINEA
[IN THE NATIONALCOURT OF JUSTICE]

CR No. 566 OF 2019

THE STATE

V

DEN LUKE
Prisoner

Bulolo/Lae: Polume-Kiele J
2021: 	2nd August, 3rd, 10th, 19th & 22nd November, 2nd & 9th December.
2022:	22nd & 23rd February, 13th May, 15th June

CRIMINAL LAW – Guilty Plea – Murder, Criminal Code Act, Section 300 (1) (a) - Maximum penalty subject to Section 19 life imprisonment - Victim stabbed on lower abdomen with a pair of scissors  

CRIMINAL LAW - Sentence - Early guilty plea - First time offender -Incarceration appropriate 

CRIMINAL LAW– Sentence – 16 years’ imprisonment – Criminal Code Act, Section 300 (1) (a) and Criminal Code Act, Section 19 - Pre-trial period in custody of 3 years, 3 months 6 days is deducted pursuant to s 3 (2) of the Criminal Justice (Sentences) Act.  The prisoner to serve 12 years 8 months 24 days in prison

Brief facts
On 6 December 2019, between 4 p.m. and 5 p.m., the accused Den Luke and the deceased Buka Hamin were drinking alcohol and beer together at Sasango Village, Kaindi, Morobe Province. During the drinking spree, an argument arose between them, with the prisoner accusing the deceased of having an affair with his wife so the prisoner got a scissors and stabbed the deceased on the lower abdomen. The deceased died of loss of blood. 
These relevant facts were put to the prisoner during arraignment and it was submitted by Defence Counsel that these facts were consistent with his instructions to him as counsel and also contained on the depositions for the plea of guilty: “The prisoner is 20 years old and is from Aiya Village, Menyamya, Morobe Province. On 6 December 2019, at Sasango Village, Kaindi, Morobe Province, he murdered Buka Hamin. The prisoner was convicted with murder contrary to s. 30 (a) of the Criminal Code Act”
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
Manu Kovi v The State (2005) SC789
State v Paguari [2011] N4438
Simon Kama v The State (2004) SC740
The State v Bonifas Apa (Unreported judgment) Cr 623 of 2018)
The State v Rebecca Ameiu, (Unreported judgment) CR 1003 of 2003 to 
State v Christine Omui (Unreported Judgment), CR No. 384 of 2007
State v Lagu [2011] N4354
The State v Michael Gend (2014), CR No. 760 of 2014, (Unreported Judgment)
The State v Hiri [2017] N6281
Thress Kumbamong v. the State (2008) SC1017
Goli Golu v The State [1979] PNGLR 653
The State v Aiwa [2017] N6948
Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128
Kuri Willie v The State [1987] PNGLR 298
State v Taulaola Pakai (2010) N4125
State v Matao [2015] N6084
State v Nemao [2015] N6131
State v Andrew Yawing (CR No. 1201 of 2021) Unreported 15 June 2022
State v Clem Lukas (CR No. 575 of 2021) Unreported 14 June 2022
The State v Lagu [2011] N4354

Counsel:
Ms. S. Joseph, for the State
Mr. C. Boku, for the Prisoner
SENTENCE
15th June 2022
1.	POLUME-KIELE J: On 3 November 2021, Ms. Matana of the Public Prosecutor’s office presented an indictment against the accused, Den Luke for one count of murder contrary to s 300 (1) (a) of the Criminal Code. 

2.	On 12 November 2021, the accused, Den Luke appeared before me and by his own guilty plea, admitted guilty to one count of murder contrary to s.300 (1) (a) of the Criminal Code Act. 

3.	The maximum penalty for murder subject to s 19 of the Criminal Code Act, is imprisonment for life. Section 300 of the Criminal Code provides as follows: 
“Section 300 - MURDER.
(1) 	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder: –
(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person.
(b) if death was caused by means of an act–
(i) done in the prosecution of an unlawful purpose; and
(ii) of such a nature as to be likely to endanger human life;
(c) if the offender intended to do grievous bodily harm to some person for the purpose of facilitating–
(i) the commission of a crime other than a crime specified by a law (including this Code) to be a crime for which a person may only be arrested by virtue of a warrant; or
(ii) the flight of an offender who has committed or attempted to commit an offence referred to in Subparagraph (i);
(d) if death was caused by administering any stupefying or overpowering thing for a purpose specified in Paragraph (c);
(e) if death was caused by willfully stopping the breath of a person for a purpose specified in Paragraph (c).
Penalty: Subject to Section 19, imprisonment for life.
(2) 	In a case to which Subsection (1) (a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.
Committal Court Disposition
4.	Ms. Joseph for the State tendered the Lae District Court Deposition into evidence by consent which comprised of the following: 

(i)	The Record of interview both the original pidgin and English Version conducted on 12 December 2018, CB 7820 of 2018, marked as Exhibit "A" relating to the defendant Den Luke during which he admitted to using a scissors to stab one namely Buka Hamin on the afternoon of 6 December 2018 between 5 p.m. and 6 p.m. at Sasango Compound, Kaindi, Menyamya, Morobe Province.

(ii)	The Statements of State witnesses namely Timothy Henge undated, David Sanny undated, Den Luke (undated), Constable Silas Mugare (undated) and Constable Sam Maki, undated. 

(iii)	The statement of Constable Sam Maki deposed to him conducting the Record of Interview which was corroborated by Constable Silas Mugare who respectively confirmed the identity of the prisoner and his demeanour following the commission of the offence. Included in the Court disposition is the Coroner’s Report dated 11 January 2019 with photographs of the victim’s lifeless body and injuries caused, Medical Certificate of death of the same date. 

5.	Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the prisoner’s guilty plea was accepted, and the prisoner was convicted on the charge of murder prescribed under s 300 (1) (a) of the Criminal Code.
Antecedent Report
There are no prior convictions registered against the prisoner.

Pre-Trial Detention
6.	The prisoner was remanded on the 22 February 2019 and has been held in custody for a period of 3 years 3 months 25 days to the date of this decision on sentence. 
Allocutus 
7.	Upon arraignment, the prisoner was given the opportunity to speak on the question of penalty. In administering the allocutus, the prisoner said that he was sorry to God and this Court for breaking the law of the country, sorry to the judge for the time taken in hearing the case, sorry to the victim and also told the Court that his parents are very old, and he request for mercy and to be placed on probation.

8.	He is also sorry for his children aged between 2 and 1 years who he left behind. The prisoner also asked for leniency from the court. The prisoner stated that this is his first time in court and is worried about the welfare of his children and also his aging parents who depend on him for financial support. Counsel for the prisoner, Mr. Boku submitted that this is case involving family circumstances and thus requested that a Pre-Sentence Report (PSR) on behalf of the prisoner to be provided by the Community Based Corrections Officer (Probation Officer), Bulolo and Lae. The CBC Officer was thus directed to prepare a Pre-Sentence Report and to have it filed by 16 November 2021.
Pre-Sentence Report
9.	The Community Based Corrections Officer, Ms. Jane Taibob has in response to this request, prepared the Pre-Sentence Report which is now available to this court for consideration.  According to the Pre-Sentence Report, the prisoner is about 20 years old, married with two children. The prisoner comes from Sasango Village, Kaindi, Morobe Province. He is illiterate. The prisoner comes from a family of seven (7), 5 brothers and two sisters. All siblings are married and live elsewhere with their own families.  The prisoner is the 4th child in the family. His parents are still alive and also living in Kaindi. The prisoner earns his living by gold penning and appears to be in good health and remorseful for what he had done to the victim. He asked that he be placed on probation so that he can go back to the village and look after his family.  

10.	With regard to the prisoner’s suitability for rehabilitation back into the community, this aspect of the assessment was carried out and a member of the community in his assessment has indicated that the prisoner presents no threat to anyone in the community and that he had a good reputation in the community. On the other hand, the wife of the deceased person says that the prisoner and his relatives have not paid the balance of the K6,000.00 compensation (of the K10,000.00) which the prisoner and his relatives promised to pay. They have only paid K4,000.00. She has 4 school aged children who currently have lost their father due to the actions of the prisoner. She is also apprehensive of the feelings of the relatives of the prisoner and the prisoner himself if released or that the prisoner should be made to pay compensation for the loss of her husband so that she can support herself and her children.

11.	Nevertheless, whilst the prisoner appeared remorseful and has said that he is sorry for what has happened, and regretted his actions, he also stated that he would like to apologize in person to the deceased family and that both families should reconcile to maintain peace in their community. Whilst I accept that this is what the prisoner hopes to achieve, I find no evidence of any attempts being carried out by the prisoner or his relatives in making this gesture or complying with the initial undertaking of making compensation payment of a sum of K10,000.00 (of which an initial sum of K4,000.00) has been paid with an outstanding amount of K6,000.00 yet to be paid. Three years have come and gone and this failure on the part of the prisoner or his relatives do not speak favourable of a man taking seriously, his undertaking of making amends for wrongs done and respect for life general. 

12.	I understand from the overall assessment gathered from the Pre-Sentence Report is that the community will not benefit from the prisoner in his rehabilitation progress back into the society. Therefore, the prisoner’s suitability for probation is not recommended. 

Mitigation factors

13.	The mitigating factors were that there was no prior conviction, an early guilty plea and the accused had surrendered and co-operated with police and is a first-time offender.
Aggravating factors
14.	The aggravating factors were that this was a vicious attack, where the accused had used a dangerous weapon, a scissors to stab the victim on the lower abdomen. There was a strong desire to inflict grievous bodily harm which had resulted in the loss of life and is an assault which is prevalent in the community.

Submissions on sentence
15.	Mr. Boku in his submission on sentence, submitted that the issue before the court was whether the present case is one of the worst types of case under s 300 (1) (a) of the Criminal Code Act that attracts a term of life imprisonment.  In addition, Mr. Boku also submitted that this court has considerable discretion as to whether this court can impose the maximum penalty by virtue of s 19 of the Criminal Code Act. Whilst it is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst type of case, it should be noted that the crime of 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.  

16.	Mr. Boku in his submission on sentence, referred me to the case of Manu Kovi v The State (2005) SC789 which had established the guidelines for sentencing in all homicide cases. Although Mr. Boku conceded that the crime of murder was serious, he contended that there were some elements of provocation in the non-legal sense and the actions of the prisoner were unintentional.  Therefore, it does not fall under the worse category of murder cases. He submitted further that this case would fall within the category 2 of the Manu Kovi sentencing tariff which attracts a sentence ranging from 16 years to 20 years imprisonment or less as an appropriate penalty. 

17.	Mr. Boku also referred this court to a number of comparable cases and invited this Court to also considered the sentencing guidelines discussed more particularly in the case of State v Paguari [2011] N4438 where the Court considered a sentencing guideline range between 12 years to 16 years where there is a guilty plea with no or factors in aggravation (see Simon Kama v The State (2004) SC740) and furthermore submitted that this court exercise its discretionary powers under Section 19 of the Criminal Code and consider a lesser sentence. Mr. Boku also submitted that this court is not restricted by the sentencing guidelines enumerated in Manu Kovi (supra). In that this Court still had a wide discretion to go outside Manu Kovi guidelines (Thress Kumbamong vs. State) and that this case was not the worst type of murder: (Goli Golu v The State [1979] PNGLR 653) and invited this Court to impose a sentence range between 10 to 13 years and relied on The State v Bonifas Apa  (Unreported judgment) Cr 623 of 2018) and The State v Rebecca Ameiu, (Unreported judgment) CR 1003 of 2003 to support his submission on sentence.

18.	Ms. Joseph for the State in reply submitted that there is no reason provided for the killing, it was a vicious attack with a scissors which he used to stab the deceased on the lower abdomen with intention to kill the deceased. She further submitted that killing in that manner is very serious. This is no reason for such a merciless killing 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. Whilst there is acknowledgement that the PSR is not a balanced report, there is confirmation that the accused has not paid the full amount of the K10,000.00 compensation, which was pledged, and this shows that the pledge or 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. 

19.	A number of cases were relied upon by the State to distinguish this present case and these were State v Christine Omui (Unreported Judgment), CR No. 384 of 2007) the offender pleaded guilty to stabbing the deceased with a knife following an argument. The deceased was pregnant when she was stabbed. There was de facto provocation in that the deceased mocked the prisoner that she was old and cannot find a husband.  The prisoner was sentenced to 16 years with hard labour. 

20.	In State v Lagu [2011] N4354, the prisoner pleaded guilty to murdering a fellow villager by stabbing him with a pocketknife once in the chest, while the deceased was at a family gathering. There was no apparent motive. The Court held that the starting point for sentencing for this sort of murder (vicious attack, strong intent to do grievous bodily harm, weapon used is 20 to 30 years. The mitigating factors were that there was only one stab wound, an unplanned attack, early guilty plea. The aggravating factors were that it was a vicious attack with a lethal weapon so the sentence should remain within the starting point range. The prisoner was sentenced to 20 years imprisonment. The pre-sentence period in custody was deducted and none of the sentence was suspended. 

21.	In the case of The State v Michael Gend (2014), CR No. 760 of 2014, (Unreported Judgment), the prisoner pleaded guilty to the murder of his wife. The offender used a knife to stab his wife at the back around the genital area and abdomen area. She died due to loss of blood. The prisoner was sentenced to 25 years less pre-trial period of 3 years and two months leaving a balance of 21 years and 9 months to serve in prison. 

22.	In The State v Hiri [2017] N6281, the offender is the father of the deceased. He pleaded guilty to stabbing his son with a kitchen knife. The stab was under the deceased’s left arm. The Court sentenced the prisoner to 15 years in hard labour. Pre-trial custody period of 1 year six months was deducted and the balance of 14 years and six months was to be served in hard labour.

23.	Ms. Joseph submitted that comparing the above cases to this present case, it is the State’s submission that the Courts in dealing with sentences for a guilty plea of murder cases, the Courts have readily imposed punitive and deterrent sentences. Furthermore, suspension of sentences in homicide cases has not been readily available. 

24.	Given all the factors set out above, Ms. Joseph submitted that this case falls under category 2 sentencing guideline (tariff) applied in Manu Kovi case (supra) and invited this Court to impose a sentence range from 16 to 25 years as appropriate penalty under the circumstances. Ms. Joseph acknowledged that the mitigating circumstances in favour of the prisoner were important consideration, however, so too are the matters relating to his aggravating factors. 

Determining severity of sentence

25.	I have heard submissions on sentence from both the Defence Counsel and the Prosecution on relevant laws applicable to this offence. I have also considered the mitigating and aggravating circumstances for and against the prisoner. I now have to consider what is to be an appropriate sentence to be imposed on the prisoner. 

26.	Indeed, the death was tragic and unwarranted. For those family and community members affected by the victim's death, they have lost a father, brother, uncle or brother in-law and valuable community member. However, remorseful the prisoner appears to be, no amount of amity will bring the victim back to life.  This sort of crime is prevalent. Human life and community need to be protected from such brutality. In this case, the young children of the deceased will grow up without the protection, love and attention of their father. They need not be placed in such situation.

27.	Further and in addition, bearing all these observations in mind, this court now asked itself as what purpose will incarceration bring to the community at large, particularly when such atrocity occurs within family circumstances. Thus, in consideration of the severity of penalty to be imposed, regard is thus 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, it is my considered view that the prisoner here must be placed in incarceration as this is the consequences of his decision to terminating another person’s life, a person whose support is now lost to his immediate family. The wound and the force within which this wound is inflicted does indicate that the accused had intended to cause real harm to the deceased, and it was a very vicious attack. There was a strong desire to inflict grievous bodily harm which had resulted in the death of the victim. Thus, in the consideration of the factors outlined above, I am guided by the principles held in Manu Kovi v The State (2005) SC789 and will apply the upper range of category 2 sentencing tariff applied in Manu Kovi case (supra) of 16 to 25 years to be appropriate penalty under the circumstances.  “Table 1: below sets out sentencing guidelines for murder from supreme court’s decision in Manu Kovi’s case.

Table 1 – Sentencing guidelines (Manu Kovi case) for murder case
Item	Description	Details	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.	12-15 years
	
2	Trial or plea
-	mitigating factors with aggravating factors.
-	No strong intent to do grievous bodily harm	-	weapons used
-	some pre-planning
-	some elements of viciousness.
	16-20 years
	
3	Trial or plea 
-	special aggravating factors
-	mitigating factors reduced in weight or rendered insignificant by gravity of offence.
-	Pre-planned – 	-	vicious attack
-	strong desire to do grievous bodily harm
-	dangerous or offensive weapons used, e.g., gun, axe
-	other offences of violence committed.	20-30 years
	
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.
	-	Premeditated attack
-	brutal killing, in cold blood
-	killing of innocent, harmless person
-	killing in the course of committing another serious offence
-	complete disregard for human life.	Life imprisonment

28.	Whilst this case may not be the worst type of murder as opposed to Goli Golu v The State [1979] PNGLR 653); a serious crime has been committed and a life has been prematurely terminated and such offending in domestic setting is becoming prevalent. 

29.	This court is mindful that in such a domestic or community environment and relationship, there should be understanding between the members of the community and where circumstances permit, expression of respect for human dignity must prevail. In the prisoner’s case, he chose to act in such a manner with no apparent reason which consequently resulted in the termination of a life prematurely. 

30.	Consequently, I am inclined to accept the State’s submission and invitation to refer to the case of The State v Aiwa [2017] N6948 a case in which his Honour Salika DCJ (then) when sentencing a man to 20 years in hard labour for the offence of manslaughter commented, comments which I adopt and also echo in this judgment that: 

“Life is a gift from God and no one has the right to end another person’s life. Taking away a person’s life is repulsive and despicable. The Court must be seen to be protecting human life because life is lived only once in this world. The sanctity and value of life is more precious and valuable than material wealth, silver, gold or diamond and this Court takes serious notice of that undeniable fact. No amount of compensation in monetary terms, regret or remorse is ever going to restore a life that is lost”. 

31.	 Homicide cases are becoming too prevalent not only here in Bulolo and Morobe Province but nationwide, hence heavier penalties against those offenders who take away the life of another person to serve as a deterrence to the offenders and other likeminded or would be offenders.  

32.	With regard to the prisoner’s pleas for leniency and being a first time offender in court, this case can be distinguished from the case 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 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 a young man, the crime of murder which is committed with such impunity must carry with it some serious penalties as a deterrent factor. I therefore adopt the principle applied by Hartshorn J in the State v Taulaola Pakai (2010) N4125, where he stated that “Court’s 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." An approach which I have adopted and applied in other cases of late, State v Matao [2015] N6084, State v Nemao [2015] N6131, State v Andrew Yawing (CR No. 1201 of 2021) Unreported 15 June 2022, State v Clem Lukas (CR No. 575 of 2021) Unreported 14 June 2022.

33.	Having taken into account the submissions of Counsels both for the Defence and the State and considering the comparable cases cited by Counsels in regard to sentence, I conclude that the crime of murder which is committed with such impunity must carry with it some serious penalties as a deterrent factor, hence incarceration is an appropriate penalty. 

34.	Applying the sentencing range and consideration referred to in the judgment of The State v Lagu [2011] N4354, which I find relevant, and now adopt and apply it to this present case, I hereby sentence (you) Den Luke to 16 years imprisonment with hard labour. I deduct a period of 3 years 3 months 24 days being the period that you have been held in custody pursuant to s 3(2) of the Criminal Justice (Sentences) Act. You are therefore sentenced to serve the balance of your sentence term of 12 years 8 months 6 days in prison at CIS, Buimo.
Sentence
5.	Having convicted you, Den Luke of one count of murder contrary to s 300 of the Criminal Code, you are now sentenced as follows:
Length of sentence imposed: 				16 years. 	
Pre-sentence period deducted:			 3 years 3 months 24 days.	
Balance of term of sentence to be served:		12 years 8 months 6 days.
Time to be served in custody:				12 years 8 months 6 days.
Sentenced accordingly.
__________________________________________________________________
Public Prosecutor: 	Lawyers for the State 
Public Solicitor: 	Lawyers for the Prisoner