Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Ogi [2004] PGNC 20; N2761 (10 December 2004)

N2761

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 349 OF 1997

BETWEEN:

THE STATE

AND:

AUGUSTINE LAUSI OGI

(prisoner)

WAIGANI: Davani, .J
2004: 19, 22 November
:10 December

CRIMINAL LAW – wilful murder – street brawl – victim stabbed – street brawl killing, a most serious instance of wilful murder – s. 299 of Criminal Code Act
CRIMINAL LAW – wilful murder – guilty plea – sentence – a deterrence to others – 50 years

Cases cited:
Ure Hane v the State [1984] PNGLR 105
State v. Yapes Paege and Relya Tanda [1994] PNGLR 65
Tony Imunu Api v the State SC684 dated 29th August 2001
State v Tom Geroi Gurua and others N2312 dated 11th December, 2002
Kepas Wanege v the State SC742 decided on 1st April, 2004

Counsel:
T. Ai for the State
M. Norum for the prisoner

DECISION
(Trial – on sentence)

10th December 2004

DAVANI .J: On 25th November, 1997, the then Acting Justice Vagi found the prisoner guilty of the offence of wilful murder, charge laid pursuant to s. 299 of the Criminal Code Act (‘CCA’), that he, on 5th October 1996 at Casuarina Street, Hohola, wilfully murdered one Robert Singut (‘deceased’).

The prisoner’s co-accused one Paul Daure Simon was found not guilty and discharged.

Before the prisoner gave evidence and prior to the handing down of decision on verdict, the prisoner escaped from custody on 25th July 1997. Although recaptured in July 2000, for one reason or another, the matter was not mentioned again until early 2004 when it was brought to the attention of the Listings judge. The matter was then brought before me for the administering of allocatus and submissions on sentence and ultimately decision.

Mitigating factors

On allocatus, the prisoner apologized for what he did, he said sorry to the deceased’s family and thanked the court for hearing his case and for giving him the opportunity to be heard.

This is also his first offence.

Aggravating factors

This matter went to trial. However prior to that, the prisoner escaped from remand on 25th July 1997 and was on the run until 13th July 2000 when he was recaptured, a period of 3 years, 9 months and 23 days.

The circumstances surrounding the killing are also aggravating in that it was a fight amongst a group of youth some of whom were under the influence of intoxicating substances and that during that fight, the prisoner stabbed the deceased with a knife.

Analysis of the evidence and the law

I have consulted Vagi AJ’s decision on verdict from the court transcripts and note these to be the facts leading up to the fatal stabbing. That on the 5th October, 1996, about 3 to 4pm in the afternoon, the prisoner and Paul Daure Simon were sitting on the roadside when one Simon Kilion approached them. Both accused were drunk and under the influence of intoxicating substances. This was when Paul Simon Daure dragged Kilion, punched him in the face and swore at him. A fight then started between Kilion and Daure. The prisoner then intervened and stopped the fight. However, later that same evening on his way to the shops, Kilion met accused Paul Daure and mentioned the incident of that afternoon. This verbal exchange ignited the fight. The prisoner assisted Daure in this fight.

The transcripts show that the deceased went to assist Kilion however at the same time prisoner Ogi ran at him from the other side of the street. The deceased’s brother Jonathan Singut also followed. By then, other youth also joined resulting in a street fight. It was also then that the prisoner ran up to the deceased and stabbed him. The deceased fell to the ground and was on his knees when the prisoner stabbed him again. In defence of his brother, Jonathan Singut threw a bottle at the prisoner but missed. Both Jonathan and the deceased then started running towards their house. However, on the way, the deceased fell down. He was taken to the hospital but died enroute.

The report on the post mortem examination prepared by Dr. J. Morewaiya of the Port Moresby General Hospital states that there were three incised wounds on the deceased’s body described as:

"1st – 2 cm long mediolateral wound, about 6cm Rt of midline 105cm from Rt heel above seventh Rt rib cartiladge – passing through diaphragm, upper portion right lobe of liver through diaphragm, pericardium, inferior venacava, pericardium through to the thoracic aorta at level of T4 – 5 spine. Rt haemothorax."

The post mortem report states the cause of death to be blood loss due to the incised wound piercing the liver, interior venacava and thoracic aorta.

The trial judge found that the prisoner’s actions were independent to that of other persons at the scene of the crime and that he alone intended to stab the deceased.

The stab wounds denote that after inflicting the first wound, the accused inflicted two other wounds. The trial judge may have had some issue as to whether there was intention to kill or not if the prisoner had inflicted only one wound. However in this case, in the middle of a street brawl that the prisoner was involved in, he had with him a knife which he then used to stab the deceased with, for no apparent reason.

Far too many times, young men living in certain suburbs of Port Moresby, are caught up in a frenzy common to those suburbs, the frenzy of the gangs or in this case, to be part of a group and be ‘one of the boys’, to live by a code of behaviour and to be recognized by their deeds. In this case, the deceased is a victim of this culture. He is one of the many on the growing list of victims caught up in this urban culture that is like a cancer gnawing at the lives of a lot of young men resident in these affected suburbs. It is a cancer that must be curbed. The courts of this country must play their role by handing down penalties that will deter others.

The prisoner had absolutely no reason to use a knife to stab the deceased. The evidence from the transcripts is that the prisoner had run towards the deceased, then promptly drew a knife and stabbed the deceased. The witness’s evidence is that the deceased was stabbed on two occasions in quick succession. After the deceased was stabbed, his brother and him ran off. But he fell before he got to his house.

Both the National and the Supreme Courts have handed down varying sentences for murder and wilful murder cases. Sentences have ranged from 8 years to the death penalty. In wilful murder cases, the death penalty is the maximum penalty.

There is no explanation or evidence from the prisoner as to his version of events because he had escaped. This was made known to the court on 9th October 1997 when the matter was returnable for continuation of trial before the then Vagi AJ. The trial proceeded in his absence as is the requirement under s. 571 of the Criminal Code Act.

In Ure Hane v the State [1984] PNGLR 105 Bredmeyer .J set out a non-exhaustive list of the most serious instances of the crime of wilful murder. The nature of the offence committed in this case is not listed in one of those categories. However, noting that the list in that case is non exhaustive, I can safely say that a group brawl/or street fight killing should also be included as the most serious instance of that crime.

The court can exercise it discretion under s. 19 of the Criminal Code Act to impose life imprisonment or less. In saying that I refer to the State v. Yapes Paege and Relya Tanda [1994] PNGLR 65 at pg. 66 where Woods .J said;

"The penalty laid down in Criminal Code s. 299 for wilful murder is death. So, initially there is no range of sentence for this offence... and the court must now be mindful of the fact that the parliament brought in this penalty by deliberate consideration in 1992, so it is not as thought it is a penalty that can be regarded or disregarded lightly. ... of course, parliament has also said that the court can act under s. 19 of the Criminal Code and impose a term of years instead of death. This immediately implies that the penalty in s. 299 is not mandatory. There is some discretion. However, this discretion under s. 19 must require appropriate circumstances, but it cannot mean there is a very wide discretion within the range of one year imprisonment to life imprisonment to death. Surely, if there was this automatic wide range, this would have been included in s. 299 itself. By putting it specially in s. 19, it suggests something special."

I refer to a few cases decided in Papua New Guinea to assist in deciding on sentence. In Kepas Wanege v the State SC742 decided on 1st April, 2004, the Supreme Court heard an appeal against a 20 year sentence imposed after a guilty plea to a charge of murder. The circumstances of that case were that after an argument with the deceased over a piece of land, the deceased was walking back to his house when he was attacked by the appellant and his father using an axe. He was cut on his head and then when he was lying on the ground, he was again cut.

The Supreme Court in that case dismissed the appeal saying that the sentence was too lenient and also saying that it would have increased the sentence to life imprisonment if the Public Prosecutor had filed a cross-appeal. In the State v Tom Geroi Gurua and others N2312 dated 11th December, 2002, after a trial, the National Court imposed a sentence of 50 years on a gunman who shot a deceased who had gone to the aid of his daughter when the gunman tried to abduct her. The prisoner appealed against the sentence of 50 years, but the Supreme Court dismissed the appeal holding that sentence was too lenient. It said that the prisoner should have been sentenced to life imprisonment because the offence was serious and because of the increase in these types of offences.

In this case, the death resulted during a fight involving a group of young men, some of whom were under the influence of alcohol and other intoxicating substances of which I do not have evidence of. The evidence on the prisoner’s intention to kill after the prisoner was beaten up by certain persons, was that upon seeing the deceased, he ran at him and inflicted several blows using a knife. Is this killing the worst of its kind and can this court exercise its discretion under s. 19 of the CCA? This takes me to the case of State v. Yapes Paege and one other (supra) where the court held that the application of s. 19 of the Criminal Code Act requires appropriate circumstances but that it cannot mean to be a very wide discretion. Having said that, I note that the prisoner did not present his case at trial only because he made it impracticable for the court to hear him (s. 571 of the CCA). I believe that if the prisoner had the opportunity, that he would have told the court why he was running the way he did towards the deceased and why he inflicted those stab wounds. Whether it would make any difference to the learned judge’s decision on verdict, is another matter. But the court proceeded in his absence, which it rightly did. It is under these circumstances that I will exercise my discretion not to sentence to the maximum. I find also that this case is not the worst of its kind as in other cases. (see Tony Imunu Api v the State SC684 dated 29th August 2001 – This was a case where a grade 6 school boy had his skull crushed in different places and where the court sentenced the appellant to life imprisonment. In Joseph Nimage, Tom Gurua Kerui and David Bawai Laiam v the State (supra) the appellants appeal to the Supreme Court against the sentence of 50 years in a murder and robbery trial where he pleaded not guilty, was dismissed by the Supreme Court because it was of the view that the sentence was warranted under the circumstances and that the National Court should have imposed a much higher sentence).

I should add that although the prisoner filed an appeal against the decision on verdict, that the appeal was dismissed for want of prosecution on 23rd June, 2000.

The reservations expressed by the Supreme Court in cases more serious than this and which I have referred to in these reasons, show that sentence must be more than 20 years. Having considered these cases, this court finds that sentence should be between 20 years to life imprisonment. Under the circumstances, the prisoner should serve a term of 50 years. As I said, offences of this nature are occurring everywhere in this country especially in our urban areas where young men whilst under the influence of drugs and alcohol set out to prove their manhood and in that process commit heinous crimes, in this case, the killing of another person.

The prisoner has been in custody for a period of 4 years, 8 months and 4 days. This will be applied towards reduction of sentence. The prisoner shall serve the reduced term of 45 years, 3 months, 3 weeks and 6 days in hard labour.
______________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor