State v Joseph [2007] PGNC 205; N4972 (18 September 2007)

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CRIMINAL LAW – sentence – murder – Criminal Code, Section 300(1)(a) – guilty plea – offender, waiting for victim as he walked past, came from behind and stabbed him three times – vicious, surprise attack on unarmed man – de facto provocation – sentence of 17 years.

A man pleaded guilty to murder. He was frustrated by the victim's sexual misconduct with the offender's sisters, and other matters. The offender armed himself with a knife, waited near a place where he knew the victim would be walking, and as the victim walked past held him by the neck and stabbed him three times, killing him.

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
Simon Kama v The State (2004) SC740
The State v Augustine Tup CR 1075/2004, 29.09.06
The State v Charles Rava Pake CR 315/2007, 24.08.07
The State v David Yakuye Daniel (2005) N2890
The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868
The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06
The State v Kevin Jeffo CR 1303/2006, 24.08.07
The State v Kevin Wakore CR 378/2003, 16.08.07
The State v Rudolf Reme Koki CR 1967/2005, 24.08.07
The State v Sebastian Justin Kelly CR 75/2001, 20.05.05

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of murder arising from the following facts. The incident happened between 6.00 pm and midnight on 22 December 2006 at Diwau Plantation, Karola village, Buka Island. The offender, Jonathan Joseph, armed himself with a knife and waited near a place where he knew the victim, Philip Wagin, aged 24 years of Kuiso village, would be walking. As Philip walked past, Jonathan held him by the neck and stabbed him three times, killing him. Jonathan ran off, leaving Philip to die. Jonathan intended to cause Philip grievous bodily harm. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and entered a conviction for murder under Section 300(1)(a) of the Criminal Code.

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

Philip had made my eldest sister pregnant, then he married another of my sisters. He then had an affair with another sister, and he raped another of my sisters. He never did anything to sort out these problems. After our father died, he tried to do something again to one of my sisters and when my mother got cross with him he held her by the neck and threatened her. He said he would kill me or her or one of my sisters. When my mother told me that I became very angry. I felt sorry for my mother and my sisters. He had lived with us for a long time, yet he was doing all these bad things to my family. One time he shot me with a fishing gun. That also made me angry. All this anger built up and caused me to do what I did. I tried to get people to take him to court to get these problems sorted out but they did not do that.

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). He co-operated with the police and made full admissions in his police interview. The lengthy explanation he gave in allocutus was not contested by the prosecution and will be regarded as de facto provocation.

5. I received a pre-sentence report prepared by Probation Officer Martin Tisivua of the Buka branch of Community Based Corrections. The offender, Jonathan Joseph, is aged 25. He comes from Bei village in the Solos area of Buka Island. The offence was committed near Kuiso village, about 20 km away. The offender is single, with no children. He is the only male in a family of eight. His father died last year and his mother relies on him for financial and emotional support. He is Catholic but not heavily involved in church activities. The report says he is a loner, a quiet personality, with few friends. He has not been in trouble with the law before. He has no regular income but survives through selling copra. He was educated to grade 3 and has never been formally employed. There has been no reconciliation between his and the deceased's relatives. The report concludes that if he were given a non-custodial sentence his life would be in danger. Despite the seriousness of the offence, however, he is not considered a danger to the community so some part of his sentence could be suspended.

6. Mr Kaluwin highlighted the guilty plea and the strong de facto provocation provided by the deceased's sexual misconduct. This was such an exceptional case a moderate sentence of nine or ten years would be appropriate, he submitted.

7. Mr Rangan submitted that the sentence proposed by the defence counsel would be entirely inadequate. It was a planned attack by the offender. He struck at a time when the deceased was unarmed and defenceless. A life sentence is warranted; and if that is considered too harsh a penalty, a sentence in the range of 20 to 30 years should be imposed.

8. To determine the appropriate penalty I will adopt the following decision making process:

9. Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

10. The Supreme Court has in recent times laid down sentencing guidelines for murder in two cases: Simon Kama v The State (2004) SC740 and Manu Kovi v The State (2005) SC789. As Manu Kovi's case is the more recent decision, I will follow it. Its starting point ranges are summarised in the table below.

TABLE 1: SENTENCING GUIDELINES FOR MURDER
FROM SUPREME COURT'S DECISION IN MANU KOVI'S CASE

No	Description	Details	Tariff
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 element 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, eg 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

11. This was a vicious and surprise attack on a man who was unarmed. The manner of the attack on the deceased showed that the offender had a strong desire to do grievous bodily harm. There was a strong element of pre-planning. I therefore place this case within category 3, so the starting point is 20 to 30 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. Before I fix a sentence, I will consider other murder sentences I have handed down. These cases are shown in table 2.

No	Case	Details	Sentence
1	The State v Sebastian Justin Kelly CR 75/2001, 20.05.05, Kimbe	Guilty plea – vicious attack on a relative who was asleep and unarmed – Bialla – offender used a bushknife – suggestion that the offender was mentally unbalanced.	20 years
2	The State v David Yakuye Daniel (2005) N2890, Kimbe	Trial – husband attacked the deceased (his wife) over suspected infidelity on her part – Kandrian, WNBP – vicious attack, he stabbed her several times.	25 years
3	The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868, Kimbe	Trial (first offender) and guilty plea (second offender) – police officer shot dead in course of armed robbery committed by a gang of which the offenders were members – neither offender fired any shots – convicted under Criminal Code Section 8.	15 years, 9 years
4	The State v Augustine Tup CR 1075/2004, 29.09.06, Buka	Guilty plea – man murdered his wife by punching and kicking her, when he was drunk – offence committed late at night after offender came home from a party – offender a former Defence Force sergeant, involved in active duty during Bougainville Crisis.	20 years
5	The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06, Kimbe	Trial – two men murdered a man they suspected had killed a friend of theirs by sorcery – mob attack – the victim was bashed to death. [Conviction and sentence recently upheld by Supreme Court; offenders' appeal being dismissed.]	25 years
6	The State v Kevin Wakore CR 378/2003, 16.08.07, Kimbe	Guilty plea – dispute erupted between clans in a village after a man was alleged to have committed adultery with another man's wife – two clans had a confrontation and in the course of it the offender shot dead the victim – substantial reconciliation had occurred following the death.	12 years
7	The State v Rudolf Reme Koki CR 1967/2005, 24.08.07, Kimbe	Guilty plea – man came home drunk, argued with his wife, they fought and he beat her to death – no offensive weapons were used – beating continued over several hours, ample opportunity for the offender to stop and get medical assistance for the deceased – no remorse.	28 years
8	The State v Kevin Jeffo CR 1303/2006, 24.08.07, Kimbe	Guilty plea – offender was drunk and angered by stories that his brother-in-law had been assaulting his wife, the offender's sister – offender armed himself with a knife, went to brother-in-law's house, called for him from outside – when he came out, stabbed him with the knife, killing him.	18 years
9	The State v Charles Rava Pake CR 315/2007, 24.08.07, Kimbe	Guilty plea – offender approached a group of friends who were sitting down telling stories in a village setting – offender suddenly attacked one of his friends with a bushknife, inflicting a fatal wound to his neck – offender later claimed that the deceased had done bad things to his sister.	20 years

13. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be 'strongly mitigating'. Others may be 'mildly mitigating'. The same goes for aggravating factors. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

16. After weighing all these factors and though there are nine aggravating factors compared to six mitigating factors, I place great weight on the guilty plea; the full co-operation the offender gave the police and the strong element of de facto provocation. These factors pull the head sentence below the starting point range. This case is similar to the recent Kimbe cases of Kevin Jeffo (18 years) and Charles Rava Pake (20 years) where murders were committed due to anger over what the deceased was alleged to have done to the offenders' sisters. I impose a head sentence in this case of 17 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

17. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is eight months, two weeks, six days.

18. The pre-sentence report indicates that no concerted moves have been made towards reconciliation or forgiveness. Indeed the offender's life would be in danger if he were given a suspended sentence. No material has been presented that warrants suspension of any part of the sentence.

19. Jonathan Joseph, having been convicted of one count of murder, is sentenced as follows:

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender

Length of sentence imposed	17 years
Pre-sentence period to be deducted	8 months, 2 weeks, 6 days
Resultant length of sentence to be served	16 years, 3 months, 1 week, 1 day
Amount of sentence suspended	Nil
Time to be served in custody	16 years, 3 months, 1 week, 1 day

National Court of Papua New Guinea

State v Joseph [2007] PGNC 205; N4972 (18 September 2007)