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State v Maran (No 2) [2023] PGNC 272; N10429 (8 August 2023)

N10429

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 13 OF 2021

THE STATE

V

JACOB MARAN
(No 2)

Aitape: Miviri J
2023: 08^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Murder S300 (1)(a) CCA – Trial – First Offender – Excessive & Violent Behaviour – Victim Speared with hunting Spear – Chest Injury Lung Ruptured – Wanton Killing – Intention to Cause GBH – Protection of Life – Serious Prevalent Offence – Strong Deterrent & Punitive Sentence – 23 Years Imprisonment minus time in remand.

Facts

The accused was rowdy aggressive and abusive to his fellow villagers. Armed himself with a bush knife went and started a fight with them. He was disarmed. Then went back to his house armed himself with a hunting spear and started an argument with the deceased. And swore at him indecencies to his mother repeatedly. Deceased responded arming himself with a bush knife running to attack the Accused who stabbed him to the chest with a hunting Spear with rugged edge. He died because of the spear stab to his chest piercing his lungs.

Held

1. Pinnacle of Violent Behaviour.
2. No regard for others in Community.
3. Protection of Life & Community.
4. Use of Deadly Weapon.
5. First Offender.
6. 23 years IHL minus time on remand.
   

Cases Cited.

Avia Aihi v The State (No 3) [1982] PNGLR 92

Simbe v The State [1994] PNGLR 38

Kumbamong v State [2008] PGSC 51; SC1017

Kovi v The State [2005] PGSC 34; SC789

State v Young [2008] PGNC 212; N3548

State v Laiam [2010] PGNC 61; N3995

Bellie v State [2022] PGSC 130; SC2325

State v Hagei [2005] PGNC 60; N2913

Counsel:
D. Mark, for the State

P. Moses, for Defendant

SENTENCE

08^th August 2023

1. MIVIRI J: This is the sentence of the prisoner who stabbed the deceased in the chest with a hunting spear rupturing his lung from which he died.
   
2. The facts on arraignment were that the Prisoner on the 07^th of June 2020 between 7.00am and 11.00am was very rowdy and aggressive towards the villagers at Babien Ulau village. He begun to swear at them after he could not find his bush knife at his house. Then he armed himself with a bush knife and walked to the beach. He was angry and started a fight there with the other villagers. But was stopped and disarmed. He walked back to his house. There he picked up a spear made of an iron rod fastened tightly to a long piece of wood. It is used for hunting pigs. Using it he destroyed his own house and household items.
   
3. After which he walked over to the bridge over a creek and started swearing at the deceased, Nelson Mungare. He demanded that he repay his sister’s K50.00 to which the deceased replied that he would pay once he had the money. But the Accused continued to swear at him saying, “You suck your mother’s cunt”. Which made the deceased angry, so he picked up a bush knife and ran towards the accused. And as he got to about 2 to 3 meters away from the Accused, the Accused took the spear he held made of the iron rod fastened to the wood and thrust it towards the deceased chest. The spear entered the deceased upper right chest resulting in blood and air flowing into the lungs cavity, resulting in the death of the deceased soon after being injured. He intended to cause grievous bodily harm to the deceased. The conviction was pursuant to section 300 (1) (a) of the Criminal Code Act.
   
4. He is potentially looking at a prison term of life imprisonment due by that section of the criminal Code. But that is subject to the discretion of the Court considering the mitigating, the aggravating, as well as any extenuating circumstances to work out an appropriate sentence due him for the crime. He will certainly be not drawn the maximum sentence as that is reserved for the worst case of murder: Avia Aihi v The State (No 3) [1982] PNGLR 92. By its facts and circumstances, it is not the worst case of murder and will draw a determinate number of years.
   
5. When accorded opportunity after conviction to speak in allocutus, he recounted, “I accept what decision you have made. I say sorry for the victim, his wife, and children. I ask for mercy and an order my term at Boram Corrective Institution. I ask for little time to serve and go out.”
   
6. In mitigation his counsel urged that he was 29 years old originally from Manmeri village in Angoram East Sepik Province. And married with a female child 1 year and 4 months old. He was educated up to grade 10 in 2016 at the Angoram High School. He had no record of any formal employment and was a first offender. He was the second born in a family of three brothers and three sisters. The mother had passed on so too the father in May 2023. A member of the Seventh Day Adventist Church he had spent since the 07^th June 2020, almost 3 years 2 months 1 day in custody awaiting trial. It would be deducted from the head sentence that was to be imposed upon him. Because there was discretion in the Court by section 19 of the Criminal Code in this regard.
   
7. No case is the same as the other and there is no sentence that fits all, nor is it a mathematical formular to arrive at a proportionate sentence in a given situation. Each case must be determined by its own facts and circumstances: Simbe v The State [1994] PNGLR 38. Tariff and range are relevant in the determination of sentence, but the dictate of the legislature bestowed upon the courts is not restricted by that fact Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). So, the guidelines that are set out in Kovi v The State [2005] PGSC 34; SC789 (31 May 2005), are that because parity must be accorded in the sentence. Here it is in that sphere set by that court to be of the second category drawing a starting point of 16 years to 20 years imprisonment. Because of the facts of the use of a weapon, here a hunting spear with very swift result of the death of the deceased. It can be deduced that preplanning was involved, because how else would he be armed with that weapon and swearing out to the people immediately there leading up, including the deceased. He obviously expected that he would be attacked and took it upon himself to be armed in preparation for that fact. And there is viciousness depicted against his conduct the whole morning culminating to the death of the deceased. He was a very violent and determined person. And that is borne out by what he uttered immediately before he stabbed the deceased in response, “Suck your mother’s cunt, I will kill one of you, I am son of a crocodile, I will kill one of you and I will go to my village. I will be around during the day and night.” There is serious and undivided intent to do grievous bodily harm expressed therein. And it is therefore not a light matter against him in the consideration of an appropriate sentence.
   
8. This is the level of violence that was perpetrated by the prisoner who dominated innocent people of that village and community. He brought them to his feet by the persistent heedless violence that he subjected them to that morning up to 11.00am when it was all over for the deceased. He paid no heed that he was part of a family nor of the fact that the persons he initially dominated by his violence was his immediate family members, Michael Walai and wife Dona and their children Dien Walai who is 5 years, Bathesiba Walai and Debra Walai. And all over his bush knife which with responsible reasonable prudence no doubt would have been found and what he set out to do quelled. He paid no heed to their reasoning and intellect to find it.
   
9. It is clear that is not the real reason for his behaviour, because on oath he enlightened why he behaved as he did. It was over being not allowed by the parents in law not to take his wife, their daughter to his own home village of Manmeri in Angoram district East Sepik Province. It did not have to come out in the manner he portrayed here against all and everyone in that community. And a grown man he could have reasoned with the parents to take his wife. Or better still he could have brought the matter to the village Court to resolve against the parents. Self-execution in violence to resolve disputes must be avoided. Because as witnessed here innocent persons will become victims of dispute, they had no part to.
   
10. Here as the evidence has enlightened in the trial his level of violence was over and above ordinary in that Community and village. He tormented all and exerted violence which did not succumb even in the face of persons within who reasoned with him to subside Glen Steven being one initially at the beach front. Including the deceased one such person to whom he paid no heed nor reason to. He was determined that he stood out of all there in his level of violence. And that is borne out by the repeated curses and swearing he uttered against all who came in his way and wake. He paid no heed that there were husbands and wives, relatives of his own, he was determined. And by his determination reflected in his own words made in the hearing of all to Glen Steven, “Suck your mother’s cunt, I will kill one of you, I am son of a crocodile, I will kill one of you and I will go to my village. I will be around during the day and night.”
    
11. His persistence is dominating even in the kind words reasoned out by the deceased to him. He returned with swearing and obscenities together with his wife. Most unbecoming and unacceptable in such a community basic in society, family. Where this is the behaviour portrayed by clear evidence as is the case here. And where there are lies built upon lies to deceive a court of law to promote violence and defiance of the law, eradicating order and the rule of law in the Community, this Court as custodian of the Constitution of the Country must protect the family, society, the village, all individual’s family members with strong deterrent and punitive sentences. Persons as here who demonstrate behaviour in this extreme do not deserve mercy and leniency. They must be picked out by their conduct what is due emanating. And it is no light matter here by the evidence that has come out against the prisoner.
    
12. Counsel defending submitted that Prisoner initially pleaded guilty during the sittings of this Court in Vanimo. But was advised that he had a defence of self-defence. And the matter proceeds to trial to determine. This is evident in the way that the trial has been conducted. All material evidence has been tendered by consent except for the medical evidence which has been called on oath to explain in lay man’s terms the medical expressions in the report. And the prisoner has given evidence in defence that it was a bush knife and not a spear that caused the death of the deceased.
    
13. Weapon such as a spear as here is in the possession of villagers and rural people because of the closeness to hunting areas where pigs can be hunted. But they are also at the discretion of this people to be used as is the case here where disputes arise. Like their partners in crime the bush knife they must be sanctioned in their use as weapons by sentences that reflect the abhorrence of the law and the legislature. This is evident in the cases pointed out by Counsel in State v Young [2008] PGNC 212; N3548 (10 September 2008) 17 years IHL was imposed a knife was used to stab the deceased. State v Laiam [2010] PGNC 61; N3995 (22 April 2010) 15 years IHL was imposed for stabbing on the chest culminating in death. A knife was used. These cases originate in the year 2008 and 2010. It is prevalent by that fact despite the sentences that are dished out there of 15 and 17 years.
    
14. This is an offence of the 07^th of June 2020 really there is no deterrence despite these strong punitive sentences against this behaviour. It is really depended now on the facts that come out of each offence to draw and appropriate sentence. Life is lived only once and will not be redeemed by the imposition of a long sentence, nor will it be guaranteed that deterrence will be affected there and then. But the seriousness of each offence must draw its own appropriate sentence warranting. Recently in Bellie v State [2022] PGSC 130; SC2325 (24 November 2022) 23 years imprisonment was confirmed where the appellant stabbed his wife in the abdomen killing her as a result. He was convicted of murder after trial. He complained that his advanced age 53 years old was not considered. The Court rejected and confirmed the sentence at first instance.
    
15. The facts in that case are not as serious as the present, particularly with the actions of the prisoner leading eventually to the killing here. This is a determined and persistent action of violence that climaxes in the death of the deceased. This is a village setting where there are no police at the call from a mobile telephone. This is where the villagers fend for themselves to try to stop the violence perpetrated by one of them. Glen Steven personally stopped that fight by the Prisoner by removing the bush knife that Prisoner held, and he returned to his house. And when he returned to his house, he got a stick with an iron rod fastened to it used for hunting pigs. He started destroying his house and tried to burn down his house, but I stopped him. I also removed a grass knife from his hand. He continued and grabbed a cooking pot and walked off towards the log bridge to the other side. As he did, he started saying, “Suck your mother’s cunt, I will kill one of you, I am son of a crocodile, I will kill one of you and I will go to my village. I will be around during the day and night.”
    
16. This prompted the deceased Nelson to try and to stop him from continuing as he was doing, but to no avail as “Jacob swore at Nelson repeatedly, so Nelson grabbed a bush knife with his hand and ran towards Jacob. I followed Nelson when I saw this, but I was late and saw the stick stuck on Late Nelson’s chest and he fell down on the sand. Prior to that I saw Nelson kept running after Jacob but could not continue further so he (Nelson) fell on the sand. When I arrived Nelson said, Glen, no more, I will die so rushed me to the hospital”. I check his body by lifting the armless shirt and saw blood coming out on his chest, I removed my shirt and tried to stop the blood. Later Nelson’s wife Ruth came and assisted positioning herself underneath Nelson, then we lifted Nelson and rushed him to the hospital.
    
17. When there is determination as here to defy and breach the law at all costs, especially in very serious cases as the present, the sentence must reflect that fact against the offender. He cannot be offered mercy where he has himself offered no mercy to the community and to the deceased. There are really no extenuating circumstances that set this offence apart so that he be treated differently in the sentence due. What is set out above call for a stern and punitive sentence. Because there is nothing similar as observed in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) the offender had sexually penetrated a minor. And then killed her because she tried to run away. He hit her head with a piece of wood causing internal injuries from which she died. He was apprehended by police and taken to the relatives of the deceased. They speared him through the chest causing him to die. He was placed in the Buka morgue but came back to life. The Court would have sentenced him to death but for this fact. He was sentenced to life imprisonment. This is not the situation here by its facts in any way or form to deviate from the ordinary given his facts and circumstances.
    
18. The summary of the medical autopsy by the doctor is in this way; “The deceased, who is from Paup village, Aitape District of West Sepik Province of PNG, happened to be at Ulau village also in Aitape at the time of the death. He was unfortunate to be in a quarrel with the assailant, who was in possession of an unidentified weapon which managed to penetrate the upper right chest of the deceased. This event happened at approximately 10.00am on the 07^th June 2020. He was rushed to the nearest health Centre but was pronounced dead by 10.00am.
    
19. Visual Autopsy was conducted 4 days later at Raiho District Hospital. Upon external examination and careful measurements, the deceased has only one evidence of recent injury. This recent injury was noted to be the right upper chest wound. This wound is a punctured-out lesion however also caused a continuous penetrating wound through the right 2^nd rib, fracturing it and entering into the lung cavity.
    
20. It is my opinion that the weapon used may have had a sharp blade at the tip and a hook just a few centimetres from the blade tip which this weapon, with much force, had happened to penetrate the rib and into the lung cavity and when it was removed, it ripped off the skin and tissues below causing the punched-out wound.
    
21. Such penetrating wounds are fatal; as body structures below the chest ribs at the 2^nd ribs are such as the big subclavian artery and vein and also there are inter-rib blood vessels. Noting the fact that the wound penetrates the lung cavity, the deceased had succumbed to death from severe blood loss into the lung cavity and also air pressure increased in the lung which is called hemopneumothorax.
    
22. The deceased had a family left now without his fatherly care. Whilst the prisoner will serve his due time and return to his family. Both have a right to life and recognized by that same Constitution. One is not less than the other. Given all the proportionate sentence in my view is 23 years IHL minus the 3 years 2 months 1 day in custody time deducted forthwith.
    
23. Effectively he now serves 19 years 9 months 29 days IHL. He has a right to have his immediate family and relatives visit him. I recommend that he serve his sentence in Boram Corrective Institution.
    

Ordered accordingly.

Public Prosecutor: Lawyers for the State
Public Solicitor : Lawyers for the Defendant