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State v Guri (No 2) [2009] PGNC 152; N3771 (21 October 2009)

N3771

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1175 OF 2007

STATE

V.

MAMANANE GURI (No. 2)

Lae: Manuhu, J.
2009: 19 & 21 October

CRIMINAL LAW – Particular offence – Wilful Murder – Sentencing – Accused speared brother on left chest with ‘spear knife’ – Sentencing considerations and guidelines – Sentenced to 30 years with hard labour.

Case cited in the judgment.

Manu Kovi v The State (2005) SC789.

Counsel:
J. Done, for the State.
A.S. Bino, for the Prisoner

21 October, 2009

1. MANUHU, J.: The prisoner has been convicted for the willful murder of his brother, Mainana Guri, on 21st July 2007 at Zigori Village, Morobe Patrol Post, Morobe Province, and I must now sentence him.

2. It all started over the prisoner’s canoe which in the morning of the day in question was used by his sister and his sister in law without his permission. The prisoner was so angry that he punched his sister twice and threw her into the water. He also tried to axe her sister. His sister would have been seriously injured if she had not avoided the axe. He then issued a threat that something bad would happen if the deceased tried to do something.

3. Hours later, when he heard his brother calling, the prisoner came from the hill top with a spear knife with deliberate haste and waited for the deceased near the banana trees. When the deceased called him three times, he was there already. The deceased approached him with no weapon in his hands. The prisoner was ready with his spear knife near the banana trees. When the deceased was close enough the prisoner lifted the spear knife and thrust it at the left chest of the deceased, where the heart is. The prisoner still had the handle in his hand. After spearing the deceased, he pulled out the spear knife and ran away with it. He did not hang around to see if his brother was alright.

4. The deceased died instantly from the severe injuries his brother had inflicted on him. The wound was 4cm in length, 3cm in width, 7cm in circumference and 15cm in depth. The third rib was partially fractured. The left lung itself had a 10cm deep wound. The prisoner used a lot of force with a deliberate intention to kill his brother.

5. The State does not submit for the death penalty or life imprisonment. Both counsel agree that pursuant to the sentencing guidelines in Manu Kovi v The State (2005) SC 789, this case falls in the second category which attracts a sentencing range of 20 to 30 years in hard labour. I accept counsel’s submission on the appropriate range. I must now consider whether the sentence should be fixed at the upper or lower end of the range.

6. The prisoner expressed remorse in his pre-sentence statement. He apologized to the audience, immediate family, deceased brother’s wife and children, his Zigori community, the Court and I, the lawyers, and God. I accept this expression of remorse. He is also sorry for breaking the law. It is a little late though. Remorse after a plea of guilty is better than remorse after a trial.

7. The killing of this nature, the prisoner says, had never happened before in the village. He is a first time offender. He has 4 children and a wife who comes from Menyamya and he is concerned about the future of his children.

8. In his family, there is no educated person. He is the eldest and he tried hard to take care of all of them, including his old mother and his uncle’s wife. He does not think that his two brothers and sisters will take care of his children, mother and uncle’s wife well. His mother likes him and wants to die in his hands. He is concerned about his mother.

9. The prisoner must understand that police, the lawyers and the Court have simply processed his own decision to attack and his action to kill his brother. The consequences of the process are matters that he should have meditated upon near the banana trees. He knew he had his mother, his uncle’s wife, and his wife and children there but he chose to commit a very serious crime against his own brother. In so doing, he may have sadly planted a seed of hate between his children and his deceased brother’s children. I sincerely hope that they will overcome what the prisoner has done and live peacefully.

10. In killing his brother, the prisoner has himself to blame for any negative consequence and hardship upon his wife and children. While the prisoner would like me to think that he is a good man, I think otherwise. His immediate family will struggle to come to terms with the killing of his own brother, who was unarmed. I can understand when his own sister appeared to give evidence against him. With 2 brothers there, the family probably does not need him.

11. As the eldest and head of the family, the prisoner failed to manage the dispute over the use of the canoe. He overreacted. His own sister and sister in law had used the canoe but he behaved as if they were enemies. To make matters worse, his wife took part in the fight. I do not know about the customary practice of the Zigori people but from where I come from, my wife is not supposed to participate in my dispute, especially a physical confrontation, with my brothers and sisters. That aside, the prisoner nearly chopped his own sister and eventually ambushed and killed his unarmed brother near the banana trees.

12. Ultimately, the prisoner has made very little impact in his pre-sentence statement.

13. Counsel for the prisoner informed the Court that the prisoner is 33 years old, is a villager married with 3 children and has a Grade 10 certificate from Bugandi Secondary School. This means that the prisoner has had adequate exposure to the rule of law and the values of life in the urban as well as the rural setting. He is not an unsophisticated traditional person from a remote part of Morobe.

13. Counsel further submits that the prisoner is remorseful, is a first time offender, has a good family background, and is a baptized member of the Lutheran Church. I would say his action is a stark contradiction to his baptism and faith.

14. Counsel for the State has submitted, to which I entirely agree, that the crime is prevalent and a deterrent sentence is necessary. It is also appropriate to impose a sentence that would demonstrate the community’s disapproval of the crime of willful murder. In fact, I was initially considering life imprisonment.

15. In all the circumstances, the mitigating factors are overshadowed by the seriousness of the crime and the factors of aggravation, particularly the spearing of an unarmed ambushed brother as if he was a wild pig. Accordingly, a sentence at the upper end of the sentencing range is warranted. I sentence the prisoner to 30 years in hard labour. The custody period of 2 years and 3 months is deducted. The prisoner has 27 years and 9 months to serve with hard labour.

________________

Jimmy W Tamate, Acting Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Prisoner