State v Lagu [2011] PGNC 80; N4354 (11 August 2011)

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CRIMINAL LAW – sentencing – murder, Criminal Code, Section 300(1)(a) – sentence after guilty plea – offender killed fellow villager by stabbing him with pocket knife – sentence of 20 years.

The offender pleaded guilty to murdering a fellow villager by stabbing him with a pocket knife once in the chest, while the deceased was at a family gathering. There was no apparent motive.

Manu Kovi v The State (2005) SC789
Saperus Yalibakut v The State (2006) SC890
The State v Jacob Aku Matai (2011) N4256

1. CANNINGS J: This is the decision on sentence for Alois Lagu, a 28-year-old man, who has pleaded guilty to murder and has been convicted of that offence under Section 300(1)(a) of the Criminal Code. The victim is a fellow villager, Thomas Ipsep. The offence was committed between 7.00 and 8.00 pm on 8 May 2010 at their village, Dimer No 1 in the North Coast area of Sumkar District, Madang Province. The victim was standing and listening to people speaking at a family gathering. The offender, who was drunk, walked past and swore at the group, for no apparent reason. There was no reaction from the group. Then the offender came back towards the group and on this occasion attacked the victim by stabbing him in the abdomen, killing him almost instantly. The offender did not intend to kill the deceased but did intend to cause him grievous bodily harm, hence a conviction for murder, not wilful murder, has been entered.

2. The offender has two prior convictions, one for possession of dangerous drugs and one for assault.

I apologise to the Court, the Judge and the lawyers who have had to spend time on my case. I believe that Heavenly God will bless them in their work. I apologise to the deceased and his family, in particular to his wife and children, and to his brothers and sisters and their relatives. I apologise to God for what I did. I asked God for His mercy and forgiveness and I believe that He has forgiven me. I was brought up in a broken family. My father died when I was five years old. My mother died in June this year but I was in custody at the time and did not know about it at the time. Education was always a big problem for me because of problems with school fees and this led to me being imprisoned in 2001. I was involved with selling drugs, which I was forced to do because of the school fee problems. After all the struggle in my life I have made a decision to change my life and serve God by becoming a youth leader. I would like the court to consider also that after the incident of 8 May 2010 the deceased's family burned down nine houses belonging to myself and my mother and my brothers and sisters; other property was also destroyed, including a trade store, cocoa fermentery, betel nut trees, chicken shed and 200 chickens. I am married with two children and all of this destruction has made life difficult for my family. My daughter died only a few months ago, while I was in custody, and this has caused me great pain and sorrow. I ask this court of mercy to give me a second chance in life and to put me on probation so that I can go back to the village and fix my background and attend to pastoral work in the village.

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 (2006) SC890). I will take into account that there have been repercussions for the offender and his family, in that some of their property has been damaged. However, the details are vague and no independent verification has been provided. It is not a weighty mitigating factor. A good character reference has been provided by Francis Pius, Institutional Welfare Officer, at Beon Jail, and this also works in the offenders' favour. As for other matters raised in allocutus, I cannot detect any significant mitigating matters. The offender alludes to having a difficult upbringing but nothing he has said about coming from a broken home or having a problem with school fees and education are of much assistance in explaining why he would have murdered a fellow villager. He has not said why he attacked the deceased. Nor has he claimed that the deceased had done or said anything that might have provoked him or provided some motive for what he did. The pre-sentence report refers to an allegation that the deceased shouted insulting words to the offender but the offender did not mention that in his allocutus and there is no evidence of it in the depositions. It does not amount to a mitigating factor. Another unverified claim in the pre-sentence report is that the offender's people have paid K12,000.00 cash, plus foodstuff and pigs to the deceased's relatives. The offender did not mention this in the allocutus so in the absence of evidence it cannot be regarded as a mitigating factor.

5. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service.

Age : 28
Origin : North Coast, Madang
Upbringing : Dimer No 1 village
Marital status : Married
Family : Parents deceased; he has 3 brothers and 3 sisters
Education : Grade 10
Employment : Some casual employment but nothing long term
Occupation : Villager
Health : Occasional stomach ailment, otherwise sound
Religion : Lutheran

6. As I indicated earlier the report alludes to some matters that might have been significant if they had been verified: alleged conflicts between the offender and the deceased, alleged reprisal attacks on the offenders' family's property, alleged payment of compensation. But they are unverified and the information is coming from only the offender and his family. It is a one-sided report. The offender is said to be a law abiding person who socialises well and makes friends easily and that he is suitable for probation. The depositions, which include a number of statements by the deceased's relatives, suggest exactly the opposite: he was a known troublemaker with a history of violence and a criminal record. I regard this pre-sentence report as unreliable.

7. Mr Mesa submitted that the circumstances of this case – some aggravating factors as well as mitigating factors – bring it within category 2 of the Supreme Court murder sentencing guidelines from Manu Kovi v The State (2005) SC789. Although it was an unprovoked attack with a lethal weapon the sentence should not exceed 20 years imprisonment.

8. Mr Collins agreed that this was a category 2 case according to the Kovi guidelines and that a sentence of 20 years would be appropriate.

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

10. 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.

11. I will apply the sentencing guidelines for murder in the leading Supreme Court case of Manu Kovi v The State (2005) SC789, which are set out in the following table:

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

12. Although both the defence and the State have submitted that this is a category 2 case I am not bound by that concordance of positions. This was a vicious and unprovoked attack with a knife on a vulnerable part of the body. The post-mortem report shows that the knife wound was to the lower chest, and extended through the diaphragm and severed the splenic artery. This is evidence of a strong desire to do grievous bodily harm. I conclude that this is a category 3 case. Therefore the starting point range is 20 to 30 years.

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

13. The recent Madang case of The State v Jacob Aku Matai (2011) N4256 is a useful precedent. The offender pleaded guilty to murdering his brother-in-law by cutting him with a bushknife several times on various parts of his body, while the deceased was working in a plantation. It was a vicious attack, arising out of a long running tension between the offender and the deceased. It was dealt with as a category 3 case so the starting point was 20 to 30 years. There were a number of mitigating factors (eg long running tension between the offender and the deceased, some element of de facto provocation at time of incident, and the guilty plea) but the viciousness of the attack and the use of the bushknife meant that the sentence remained within the starting point range. A sentence of 22 years imprisonment was imposed.

14. 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. 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.

17. The mitigating and aggravating factors appear to be evenly balanced, so it is appropriate now to compare this case with Matai. In Matai the viciousness of the attack (multiple knife wounds, indicative of a savage and remorseless assault) was at a higher level than in the present case. This case is marginally less serious than Matai. The appropriate sentence is 20 years imprisonment. It transpires that this is the sentence contended for by both the defence and the State. Although I have arrived at that term of years by a slightly different course of reasoning, I consider that this is the right sentence that takes account of the gravity of the crime and all of the circumstances of the case, in particular the guilty plea.

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

18. 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 one year, two months, one week and three days.

19. I do not find a good case for suspension in the pre-sentence report. I reject the recommendation for probation. I find no tangible evidence of reconciliation or forgiveness. Therefore no part of the sentence will be suspended.

20. Alois Lagu, having been convicted of the crime of murder under Section 300(1)(a) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	20 years
Pre-sentence period to be deducted	1 year, 2 months, 1 week, 3 days
Resultant length of sentence to be served	18 years, 9 months, 2 weeks, 4 days
Amount of sentence suspended	Nil
Time to be served in custody	18 years, 9 months, 2 weeks, 4 days
Place of custody	Beon Correctional Institution

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

National Court of Papua New Guinea

State v Lagu [2011] PGNC 80; N4354 (11 August 2011)