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State v Lambert [2009] PGNC 291; N3873 (26 June 2009)

N3873

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 691 – 697 of 2006

THE STATE

-V-

JOHN LAMBERT, MELDON DON LAMBERT, STANIS POKARUP, PAUL BEVARO AND THOMAS BEVARO
(No. 2)

Kimbe: Kandakasi, J.
2009: 10th & 26th June

CRIMINAL LAW – Sentence - Murder – Group attack with dangerous traditional murder weapon – Unclear who landed the fatal injury – Conviction after trial –Provocation in the non-legal sense – Prevalence of offence –First time offenders - Sentence of 15 years imposed – Section 300 (1) of Criminal Code.

Cases Cited

Papua New Guinea Cases

The State v Ben Simakot Simbu (No 1) (2004) N2573

Overseas Cases

Sinclair v. The King [1946] HCA 55; [1946] 73 CLR 316

Counsel:

R. Luman and F. Popeu, for the State
P. Kumo and D. Kari, for the Accused

26th June, 2009

1. KANDAKASI J: The Court found you men guilty on a charge of murder. What remains to be resolved is your sentence. Both the prosecution and the defence filed their respective submissions with final oral presentations made on 12th June 2009. The State is asking for a sentence between 14 and 20 years. Your lawyers are on the other hand asking for a sentence of 16 years.

Relevant Issue

2. Clearly the issue for me to determine is, what is an appropriate sentence for a drunken group of men killing another drunkard man?

Relevant Facts

3. Whatever sentence the Court eventually decides to imposed against you, that sentence must reflect and befit the circumstances in which you committed the offence and how you did it. It is thus necessary to take into account the relevant facts. The relevant facts appear in the Court's decision on verdict.

4. For sentencing purposes however, I note the relevant facts in summary are these. The deceased, the late Billy Rogers had been drinking alcohol at the Bayside Night Club here in Kimbe on 21st January 2006 with some of his friends. Some time between 3:00 and 4:00am, he got into a Passenger Moving Vehicle (PMV) to go home, as did other people. The PMV started dropping of its passengers from Section 11. From there, it went to Section 10 to drop off another passenger. That is where you men reside and were at the relevant time. Meldon and Stanis who were at a power pole swore at the people in the PMV, saying "kai kai kan" translated "eat vagina". The deceased and another person got off the PMV and confronted Meldon and Stanis and a fight erupted, with Stanis fighting with the deceased while Meldon fought with the deceased companion. On becoming aware of the fight, the rest of you men joined in. On seeing that, they were outnumbered, the driver of the PMV turned and drove the vehicle away, and came back with reinforcement. By the time the PMV returned, the fight between you and the deceased had come to a stop and you had left the scene of the fight. The deceased was found lying on a grassy patch where the fighting took place. The people in the PMV picked the deceased up and put him into the PMV and drove to the hospital. On the way, the deceased passed away.

5. Evidence, which was essentially uncontested confirm that, the deceased sustained some bruising injuries to his facial area, a puncture or a wound to his right hand lower arm measuring about 2cm and puncture or a wound to his back measuring about 2cm. The brushings and the wound show freshness with redness around them. No postmortem was performed but the medical evidence attributed the cause of the death to internal bleeding leading to shock.

Submissions

6. In support of his submission for a sentence of up to 16 years, your lawyer has drawn the Courts attention to a number of unreported and unnumbered decisions of the National Court. I am not prepared to accept those cases as providing any useful guides because they are not in circulation and the Court has not been provided with copies of their decisions.

7. Counsel has also referred the Court to the Supreme Court decision in the Manu Kovi v. The State (2005) SC 789 and submitted that, your case falls in the second category. Counsel for the State also referred the Court to the same case. He then, submitted that, your case falls between the first and second category accordingly to the Manu Kovi case. Proceeding on that basis, counsel for the State argues for a sentence between 14 and 20 years.

Consideration

8. As I have said in a number of cases already, I have difficulty following the decision in Manu Kovi, especially when it in effect further categorized homicide cases. As the Supreme Court said in Simon Kama v. The State (2004) SC740, Parliament had already categorized the different categories of homicide cases. The decision in Manu Kovi had no regard to what the Supreme Court said on that point in the Simon Kama case, before proceeding with its categorization. Additionally, Manu Kovi has effectively in my humble view, amended the provisions of Sections 299, 300 and 302. This in my respectful view is the case when the decision further categorizes murder and manslaughter cases, by suggesting categories where there are preplanning and there is an intention to kill or do grievous bodily harm which are essential elements in willful murder and murder cases respectively.

9. In murder cases, I note that the Supreme Court merely followed what was already decided by the Supreme Court in Simbe v. The State [1994] PNGLR 38, which endorsed the decision of the National Court in The State v. Laura (No. 2).[1] The decision in that case suggested the following as the appropriate guidelines to be followed for sentencing in murder cases:

1. On a plea of guilty where there are no special aggravating factors, a sentence of six years;

2. Sentences of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused; and

3. On a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

10. Since then, both the Supreme and National Courts continued to apply these guidelines to arrive at decisions on sentences in murder cases. In my decision in the case of The State v. Raphael Kimba Aki (N0.2) (2001) N2082, I reviewed sentences in murder cases and said at pages 4-5 that, the above guidelines were outdated and said the starting sentences for murder should be increased to 10 years having regard to the fact that, sentences for manslaughter have gone passed the kind of sentences that had been suggest in the earlier decisions. This I said was necessary because manslaughter is lower than murder. I then proceeded to suggest significant changes to the range of years suggested for each of the categories identified in the Supreme Court decisions.

11. The Supreme Court effectively endorsed the above views in its decision in the Simon Kama case. There the Supreme Court having regard to other decisions on point said at page 22 of its judgment:

"... we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v. Laura (No 2) and Simbe v. The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d) On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence, [that] may warrant a sentence lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons."

12. The Supreme Court arrived at that decision after noting that, the offence of murder has become a seriously prevalent offence, with many people quickly and easily resolving to kill other people in total disregard for the sanctity of human life and the Courts have increased sentences in murder cases.

13. Before arriving at that position, the Court had considered a number of earlier sentences in murder cases. That consideration started with the decision in The State v. Joseph Ulakua.[2] There, the National Court imposed a sentence of 20 years. The prisoner killed his wife after she had run away from him following an alleged adulterous affair with some men in the prisoner's own village. He pleaded guilty to the charge and had no prior conviction.

14. Another case the Supreme Court had regard to was a decision by Sevua J., who imposed on a guilty plea, a sentence of 30 years each against two prisoners who were not the ring leaders and did not carry and use any dangerous weapons. They acted in concert with others and killed a person with serious injuries to 5 other victims, including a loss of sight by one of them. They were passengers in a motor vehicle which failed to stop at a roadblock the prisoner and his co-offenders set up to rob motor vehicles and their passengers. I dealt with the ring leader in The State v. Tony Pandau Hahuahori (No 2).[3] He also carried and used a firearm to commit the offence and was found guilty after a trial. I impose a sentence of life imprisonment.

15. A further case the Supreme Court had regard to was the decision of Kirriwom J, in The State v. Tom Keroi Gurua & Ors.[4] There, His Honour, imposed a sentence of 50 years and 20 years against the prisoners. The 50 years was against the gunmen who shot the deceased. The deceased went in aid of his daughter whom the offenders tried to abduct and eventually rape. The offenders were respectively aged 18 and 20 years old.

16. One of the prisoners, David Laim Bawai appealed against his sentence of 50 years, claiming it was excessive. After having heard its appeal, the Supreme Court in David Laim Bawai v. The State,[5] dismissed the appeal on the basis that the sentence was too lenient. The Court was of the view that he should have received the maximum sentence of life imprisonment given the seriousness of the offence and the prevalence of the offence warranting increases in sentences. The Supreme Court arrived at that view after carefully considering a number of earlier Supreme and National Court decisions.

17. The decision in Manu Kovi, with respect tries to vary the Laura (No2.) guidelines in general terms. In so doing, Manu Kovi's last and final category talks about execution of a pre-planned brutal and vicious killing using dangerous weapons and lethal weapons. That is an essential element of willful murder not murder. I am of the view that, categorizing murder cases in the way it did, the Supreme Court with respect in the Manu Kovi case down grade some instances of murder. In the circumstances, I am of the view that the better guideline to go by is the decision in the Simon Kama. I am thus prepared to allow myself to be guided by the decision in that case.

Sentence in Your Case

18. The question then is, in which category does your case fall? This issue can be resolved by reference to the factors for and against you. I find that there are some factors operating in your favour and there are some factors operating against you.

Factors In Aggravation
19. Starting with those against you I note that, you were convicted after a trial. That forced the State to call witnesses and more importantly the Court had to to take much more time than necessary to determine your guilt or innocence.

20 Secondly, I note that, this was a case of one man being attacked by a gang. The Courts have repeatedly held that, anyone acting in association with another to commit an offence must be dealt with more severely than one acting alone. This is because those acting in association give strength and encouragement for the commission of an offence and can do far more damage than one acting alone.

21 Thirdly, I note that you used a cassowary bone which I note is a dangerous weapon and note that, this weapon features well in nearly all murder cases here in Kimbe, if not wide spread at least, the cases that I have dealt with both substantially and at call-overs. Finally, I note that most of you remain unrepentant even after the court found you guilty although you say you respect the Court's decision.

Mitigating Factors

22. Against these aggravating features are a number of mitigating factors operating in your favour. The first factor is the fact that, this is your first ever offence. The law usually treats first time offenders with some leniency as opposed to repeat offenders.

23. The second factor is the fact that, there was no preplanning or premeditation to attack or kill the deceased. It was simply a case of some drunkards thinking high of themselves and throwing abuse at each other that led eventually to a fight, resulting unfortunately in the death of the deceased. Accordingly, I accept your submission that this offence was committed in the spare of the moment.

24. There is a third factor in your favour which is the fact that, all of you are relatively young with the youngest being Paul Bevaro who is 19 years old and the oldest being Thomas Bevaro who is 25 years. This does not warrant any special consideration and reason of reducing sentence in your case because as the Supreme Court said in the case of David Laim Bawai, youth is no longer a strong factor in mitigation because many of the most violent crimes and acting under the influence of alcohol are by people as young as 15 years and going beyond.

25. Further, I note that, the deceased and his companion started the fight although Meldon and Stanis were the first to swear at the deceased and those the deceased was with. That did not necessarily call for the deceased and his friend to get out of the vehicle and attack you but they did. Had it not been for that, there would have been no fight and the eventual death of the deceased. I therefore find that, you acted under some from of provocation but not to the level of putting up a legal defence.

26. Finally, I note that, the attack was not vicious as confirmed by the nature of injuries the deceased sustained. This does not however, mean that the offence you committed was less serious. A human life has been lost due to the people involved including the deceased himself not respecting their fellow human beings shouting abuse or insult at each other and eventually becoming violent.

Decision
27. Carefully weighing the factors fore and against you, and having regard to the guidelines per the Simon Kama case, I find that, your case falls under paragraph (d), of that case, which attracts a sentence between 22 and 40 years. I am however, not prepared to impose a sentence in that range because, I note that, the Supreme Court has recently sanctioned sentences of up to 16 years as in Steven Mul Mangi v. The State (2006) SC880 by a mere matter of following of the guideline in the Manu Kovi case as a matter of course. In that case, the appellant killed another person using a knife and was convicted after a trial. The only difference between that case and your case is that, the appellant in that case acted alone while you have acted in the company of each other.

28. At the same time, I note that the Supreme Court has considered a sentence of 14 years is appropriate for a single offender using only his legs and hands to kick and punch the deceased resulting in spleen rapture and eventual death. That was in the case of Joe Giamur v. State (2006) SC884, a case that had its origin here in Kimbe. There, the appellant kicked and punched his then wife causing her to rapture her spleen and die in the consequence. The National Court imposed a sentence of 7 years on his guilty plea which the Supreme Court increased on appeal to 14 years.

29. Having regard to these kinds of sentences, the factors in your mitigation has well as those against you, I consider a sentence of 15 years appropriate and I impose that sentence against you. I have given consideration to the possibility of either increasing or reducing the sentence by reason of the part each of you played and have decided against doing that because there is no evidence of who did what to the decease and who landed the fatal blow. All that the evidence suggests is that you all joined in the fight with the deceased and the deceased died as a result of that fight. None of you were leading or forcing anyone of you to be involved. Hence, in my view, this means there is no basis to impose different sentences against each of you but the same sentence of 15 years and impose.

30. Finally, I note that you have spent 1 year 7 months and 2 weeks to today in pretrial and presentence custody. I order that this be deducted from your sentence of 15 years. That leaves you with 13 years 4 months and 2 weeks yet to serve. I order that you serve that term in hard labour at the Lakeamata Correction Services. A warrant of commitment in those terms shall issue forthwith.
_____________________________________________________________
The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Accused

^[1] [1988-89] PNGLR 98.
^[2] (2002) N2240.
^[3] (2002) N2186.
^[4] (2002) N2312.
^[5] (01/04/04) SC471.