State v Dende [2008] PGNC 289; N5471 (16 October 2008)

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CRIMINAL LAW – sentences – murder – Criminal Code, Section 300(1)(a) – trial – three co-offenders were part of a ten-man group that chased and attacked the deceased with bushknives – one of the co-offenders absconded during the course of the trial – sentences of 22, 22 and 24 years.

Three young men were convicted after trial of the murder of a 19-year-old man, who they chased and attacked with bushknives, during a group fight in a village setting. One of them absconded during the course of the trial and was convicted and sentenced in his absence.

Manu Kovi v The State (2005) SC789
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 Dende, Alex Ipa & Casper Baki (2008) N3423
The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06
The State v Jona Poro CR 1023/2007, 16.10.07
The State v Jonathan Joseph CR 866/2007, 18.09.07
The State v Justin Komboli (2005) N2891
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 Paul Semelkit (2008) N3438
The State v Peter Tokau CR 947/1988, 25.04.08
The State v Rudolf Reme Koki CR 1967/2005, 24.08.07
The State v Sebastian Justin Kelly CR 75/2001, 20.05.05
The State v Simon Levin CR 177/2005, 26.10.07

1. CANNINGS J: John Dende, Alex Ipa and Casper Baki, aged in their early 20s, are before the court to be sentenced for murder. They were convicted after a trial of the murder of a 19-year-old man, Patrick Baili Gala, at Rovu village in the Talasea district of West New Britain. The offenders were members of a clan that fought with another clan and the deceased was a member of the opposing clan. The incident happened on a Sunday afternoon in April 2006. The offenders joined six or seven other men and chased and attacked the deceased with bushknives. The cause of death was a deep wound to the neck resulting in blood loss. The wound included a cut to the trachea (wind pipe) and oesophagus (gullet) and the carotid arteries (which supply blood to the brain). He also suffered a cervical spine fracture, skull fracture and multiple deep lacerations on the right hand and both feet. It was not proven that any of the offenders inflicted the fatal or any wounds to the deceased. They were convicted, however, as it was proven beyond reasonable doubt that they were part of the group that savagely attacked the deceased and killed him, probably instantly; they swung bushknives in the direction of the deceased while he lay injured on the ground; and they aided those who chased, attacked and directly killed him. Further details of the circumstances in which the offence was committed are set out in the judgment on verdict (The State v John Dende, Alex Ipa & Casper Baki (2008) N3423).

2. The offenders were on bail during the trial but one of them, John Dende, absconded before the verdict was delivered. A warrant for his arrest has been issued but he remains at large. He had a right to be present for his sentencing hearing but he gave it up by breaking the conditions of his bail. I have decided to sentence him in his absence (see The State v Justin Komboli (2005) N2891).

4. The offenders were given the opportunity to say what matters the court should take into account when deciding on punishment.

Alex Ipa: The State witnesses have told false stories. This person went to my village and died there. I am the third born in a family of five. The first-born is disabled and the second-born was shot in the same incident. I have two sisters after me. My parents are alive.

Casper Baki: I am from Matanagavae village. I do not know what happened at Rovu. I am the fourth-born in my family. My mother is old. I am married, with two children, and I have a block. False stories by the State witnesses have convicted me. But I will accept whatever decision the court makes. I would like the court to consider suspending part or all of the sentence.

5. I have considered reports on Alex Ipa and Casper Baki prepared by the Kimbe branch of the Community Correction and Rehabilitation Service. There is no report regarding John Dende.

6. Alex Ipa is aged 23 and single. He was educated to grade 8 at Namova Primary School. He started grade 9 at Kimbe Secondary School but did not complete it. He has never been formally employed. He was living at the village at the time of the incident. His parents strongly support him and feel he has been made a scapegoat for what happened. They do not believe that he actually committed the offence.

7. Casper Baki is about the same age as Alex Ipa. He is married with two children. He has a grade 6 education. He has no formal employment record and was a villager at the time of the incident. Like Alex Ipa, he has strong support from his parents, who also do not believe that their son was responsible for what happened. They do not want to see him go to jail.

8. There has been no reconciliation between the offenders' lain and the deceased's lain following the death. Patrick Baili's father, Robert Hare, is not interested in negotiating peace or reconciliation until all the offenders – including those who have not yet been prosecuted – are dealt with and severely punished. He says his son was much loved. He was doing grade 9 at Kimbe Secondary School when he was treated like an animal and brutally killed. Community members interviewed confirmed that there is still bad blood between the two clans. The reports do not recommend that Alex Ipa or Casper Baki are suitable for probation.

9. Mr Geita submitted that this is a mid-range murder offence, falling within the second of the four categories set out by the Supreme Court in Manu Kovi v The State (2005) SC789, so the head sentence should be in the range of 16 to 20 years. He submitted that there was no pre-planning and it was still unclear what exactly the offenders did that contributed to the death of the deceased.

10. Mr Popeu did not agree that this was a category 2 offence and submitted that it fell within category 3, in view of the strong desire to do grievous bodily harm and the use of offensive weapons. A sentence of 25 years would be appropriate.

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

12. 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.

13. 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

14. I do not accept the defence counsel's submission that this is a category 2 offence. Though the offence might not have been planned, the viciousness of the attack showed a strong desire to do grievous bodily harm and offensive weapons were used. I uphold the prosecutor's submission that this is a category 3 case. Therefore the starting point range is 20 to 30 years imprisonment.

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

15. 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.)	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
10	The State v Jonathan Joseph CR 866/2007, 18.09.07, Buka	Guilty plea – offender was frustrated by victim's sexual misconduct with the offender's sisters, and other matters – offender armed himself with a knife and stabbed the victim three times as he walked past.	17 years
11	The State v Jona Poro CR 1023/2007, 16.10.07, Madang	Guilty plea – offender got angry with his wife, threw a stick at her, intending to do her grievous bodily harm – he missed his wife but the stick struck their baby daughter, killing her.	12 years
12	The State v Simon Levin CR 177/2005, 26.10.07, Buka	Trial – offender, aged in his mid-50s, became angry with his 18-year-old daughter over a trivial family matter – assaulted her in the family home, breaking her jaw and skull and causing an intracranial haemorrhage, which led to her death.	12 years
13	The State v Peter Tokau CR 947/1988, 25.04.08, Kimbe	Guilty plea – offender went to his father-in-law's house, angry and under the influence of alcohol, in the middle of the night, looking for his wife and child – he assaulted his father-in-law, first punching him, then stabbing him and inflicting fatal wounds.	22 years
14	The State v Paul Semelkit (2008) N3438, Kimbe	Trial – man convicted after trial of murder of his de facto wife in the course of a domestic dispute in the family home – deceased suffered a ruptured spleen and pancreas.	22 years

16. To determine the head sentence I will focus on the starting point range of 20 to 30 years and assess the mitigating and aggravating factors. Apart from the fact that John Dende has absconded (and I regard that as an aggravating factor in his case) the personal circumstances of the offenders and their degree of involvement in the offence are the same. So, I consider that, subject to that qualification regarding John Dende, they should be sentenced the same way. The more mitigating factors there are, the more likely the head sentence will be below the starting point range. The more aggravating factors present, the more likely the head sentence will be above the starting point range. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important.

19. There are more aggravating factors than mitigating factors, so a sentence above the bottom of the range, 20 years, is warranted. Comparing this case with other murder sentences I have passed, I agree with Mr Popeu's submission that the most similar case is Siunes' case, where two brothers were convicted after trial of the murder of an alleged sorcerer. It was a savage attack by a mob on one man. The offenders were sentenced to 25 years each. However, I do not agree that the present case is more serious than that case as, here, the attack on the deceased resulted from a group fight, whereas in Siunes' case, it was always a mob against one man. The appropriate head sentence in this case is 22 years imprisonment for each of Alex Ipa and Casper Baki. John Dende deserves a loading for absconding, which shows a disrespect of the law and the court, and I will sentence him to 24 years imprisonment.

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

20. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the terms of imprisonment for Alex Ipa and Casper Baki, their pre-sentence periods in custody, which are seven months each. For John Dende, I will allow a deduction of four months.

21. The pre-sentence reports do not warrant any suspension. Patrick Baili was a young man, a school student, and his life was taken away in brutal and tragic circumstances. If there had been peace and reconciliation since his death, or a payment of substantial compensation, or some other customary resolution of the trouble, there would be a case for suspension of part of the sentence. The offenders have strong family support but there is no wide community support for them, and the deceased's father is still grieving over his loss. I will not suspend any part of the sentences.

22. John Dende, Alex Ipa and Casper Baki, having been convicted of one count of murder each, are sentenced as follows:

Sentenced accordingly.
__________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offenders

Length of sentence imposed	24 years
Pre-sentence period to be deducted	4 months
Resultant length of sentence to be served	23 years, 8 months
Amount of sentence suspended	Nil
Time to be served in custody	23 years, 8 months

Length of sentence imposed	22 years
Pre-sentence period to be deducted	7 months
Resultant length of sentence to be served	21 years, 5 months
Amount of sentence suspended	Nil
Time to be served in custody	21 years, 5 months

Length of sentence imposed	22 years
Pre-sentence period to be deducted	7 months
Resultant length of sentence to be served	21 years, 5 months
Amount of sentence suspended	Nil
Time to be served in custody	21 years, 5 months

National Court of Papua New Guinea

State v Dende [2008] PGNC 289; N5471 (16 October 2008)