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State v Make [1998] PGNC 71; N1748 (24 July 1998)

Unreported National Court Decisions

N1748

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 556 OF 1998
THE STATE
V
JAMES AGAMP MAKE
WILLIAM DOT &
NORMAN POKOP

Mount Hagen

Injia J
16 July 1998
24 July 1998

CRIMINAL LAW - Sentence - Murder - Plea - Killing of close relative - Sentencing tariff for murder and manslaughter cases discussed - Criminal Code (Ch. No 262) s.300(1)(a).

Cases Cited

The State -v- Laura No. 2 [1988-89] PNGLR 98

Kesino Apo -v- The State [1988] PNGLR 182

CRA No. 64 of 1994, Antap Yala -v- The State, Unreported Supreme Court judgement dated 31 May 1996

The State -v- Maria Pelta Pung, Unreported Supreme Court judgment dated 8 November 1996

SCR No. 11/95 Kongral Turi -v- The State, Unreported Supreme Court judgment dated 8 November 1996

SCR 44/95 Maxom Sumba -v- The State Unreported Supreme Court judgment dated 29/11/96

SCR 22/94 Opai Apili -v- The State Unreported Supreme Court judgment dated 31/5/96

CRA 61/94 Nancy Paul Papeng -v- The State Unreported Supreme Court judgment dated 1996

SCR No. 41/94 Wampai Wampa -v- The State Unreported Supreme Court judgment dated 31/5/96

The State -v- Jack Mek N1575 (1997)

Counsel

J Kesan for the State

L Simji for the accused

24 July 1998

INJIA J: The three accused pleaded guilty to murdering one Daun Rombugl contrary to s.300 (a)(a) of the Criminal Code (Ch. No. 262). The maximum punishment for this offence is life imprisonment.

The three accused and the victim are first blood cousin brothers. They had an internal land dispute which led to a small scuffle between them. The land the subject of the dispute belonged to the three accused but was being looked after by the deceased whilst the three accused settled on block land at Aviamp. When the victim claimed ownership rights over the land, this dispute arose. At one stage, the land mediators ordered the victim to vacate the land but he and his brothers refused to obey the order and worked on the land thus leading to the scuffle. During the scuffle, the accused James Make hit the victim on his head with a coffee stick causing the victim to fall to the ground. Whilst the victim lay on the ground, the accused William Dot then cut the victim on his left thigh with a bush knife followed by Norman Pokop cutting the deceased on his left back with a bush knife. The victim died few minutes later from severe blood loss as a result of the injuries. All three accused acted in concert and in the aid of each other. During the scuffle, three other persons received injuries at the hands of the three accused and were committed to stand trial also, but those committals are not subject of the present indictment and therefore not relevant.

Before I discuss the factors which mitigate or aggravate the offence, I want to say something on the range of sentences for murder, a matter which both counsels have addressed at length. In The State -v- Laura No. 2 [1988-89] PNGLR 98, Buri CJ stated that on a plea of guilty to murder with no special aggravating factors, a sentence of six years may be appropriate. A sentence of more than 6 years may be appropriate in a case with special aggravating factors or a lesser sentence where there are special mitigating factors such as youthfulness or advantage of the accused. On a plea of not guilty to murder, a sentence in the range of 8 - 12 years or more in a case where there are aggravating factors. It was also noted that a manslaughter sentence cannot be higher than a murder sentence unless a manslaughter case is more worse than a murder case.

It is fair to say that there has been an increasing recognition of the need to increase the range of sentence for murder and manslaughter cases. In manslaughter plea cases, the case of CRA No. 64 of 1994, Antap Yala -v- The State Unreported Supreme Court judgment of Amet CJ & Salika J and Injia J (myself) dated 31 May 1996 serves as a good example. In that case, we upheld a sentence of 10 years for manslaughter imposed by the National Court, in a case where a man slashed the neck of his wife following a domestic argument. Similar manslaughter cases have attracted sentences in the range of 6 - 8 years: see SCR 56/94 Maria Pelta Pung -v- The State, Unreported Supreme Court judgment dated 8 November 1996 (8 years). SCR No. 11/95 Kongral Turi -v- The State, Unreported Supreme Court judgment dated 8 November 1996, (7 years). In murder plea cases, sentences have ranged between 9 - 15 years: see SCR 44/95 Maxom Sumba -v- The State Unreported Supreme Court judgment dated 29/11/96 (9 years). SCR 22/94 Opai Apili -v- The State Unreported Supreme Court judgment dated 31/5/96; CRA 61/94 Nancy Paul Papeng -v- The State Unreported Supreme Court judgment handed down in 1996 (12 years), SCR No. 41/94 Wampai Wampa -v- The State Unreported Supreme Court judgment dated 31/5/96 (15 years). In contested murder cases, sentences have ranged between 12 years - life imprisonment; most common ranges being around 15 - 18 years. In exceptional cases however, that is cases with special mitigating factors, sentences have ranged between 8 years - 12 years: see State -v- Jack Mek N1557 (1997); (8 years) CRA 61/94 Nancy Paul Papeng -v- The State Unreported Supreme Court judgment handed down in 1996 (12 years) in the years following The State -v- Laura (No.2).

The range of sentences I have set out above are matters which have come to my knowledge either because I have participated in the judgments or in the normal course of business. Due to the lack of accurate data, I am unable to present a complete and accurate picture of the range of sentences, which in my view at times is difficult to ascertain given the sizeable number of differing sentences by various judges and which at times appear inconsistent.

In the present case, the factors which mitigate the offence are: (1) Guilty plea (2) Co-operation with the police (3) Their prior good character (4) Good family background (5) In the case of William Dot and Norman Pokop, their youth. (6) Expression of remorse (7) Defacto provocation (8) Breach of trust by victim in looking after land for accused (9) Loss of their close relative: see State -v- Jack Mek N1575 (1997); Kesino Apo -v- The State [1988] PNGLR 182. (10) compensation of K400 plus 20 pigs already paid plus offer to pay more at the end of this coffee season. The factors which aggravate the offence is that this was a pre-mediated vicious attack on the victim by the three accused, all acting in concert, using offensive weapons, to achieve their desired result of causing grievous bodily harm. Internal family disputes over land or any other type of dispute are best resolved by lawful means. Balancing all these factus, I consider that the need to impose a strong punitive and deterrent punishment is paramount.

Counsel for the accused has referred me to the sentence of 8 years I imposed in State -v- Jack Mek, ante, but I distinguish that case from the present case on the basis of that accused’s special relationship with the deceased and the compelling circumstances in which he killed his own step-father.

I do not intend to in make future customary compensation payment as part of the punishment because of the seriousness of the offence. Also given the seriousness of the offence, I do not think a suspended sentence in the case of William Dot and Norman Pokop is appropriate. I do however know that full compensation will be paid as required by local custom and I take this to be an additional mitigating factor.

In all the circumstances, I consider that a sentence of 10 years is appropriate in the case of each accused. From this I deduct the period of 4 months 19 days they have spent in custody. They will each serve the remaining balance of 9 years 7 months and 11 days.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor