State v Paina [2015] PGNC 12; N5867 (19 February 2015)

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CRIMINAL LAW – sentence – murder – Criminal Code, Section 300 – conviction after trial – offender killed a man who had stolen betel nut from him – cut him with a bushknife.

The offender was convicted after trial of the murder of a fellow villager under Section 300(1)(a) of the Criminal Code. The deceased was a man who had stolen betel nut from the offender earlier in the day. The accused admitted cutting him with a bushknife and causing his death, and raised the defences of self-defence and provocation, which were rejected at the trial.

Manu Kovi v The State (2005) SC789
State v Junior Paul Paina (2014) N5819
The State v Abaya Ulas (2010) N4009
The State v David Solomon Lingen CR No 1292/2009, 20.11.09
The State v Jacob Aku Matai (2011) N4256
The State v Julius Kembu CR No 288/2009, 23.04.09

1. CANNINGS J: Junior Paul Paina was convicted after trial of one count of murder under Section 300(1)(a) of the Criminal Code. He cut the deceased, Daniel Salawai, a 28-year-old man, with a bushknife, intending to do him grievous bodily harm and causing his instant death, at Arra in the Transgogol area of Madang Province, on Friday 15 November 2013. The offender cut the deceased once, inflicting a fatal wound in the posterior chest, measuring 32 cm x 9 cm with a depth of 15 cm.

2. At the trial the offender admitted cutting the deceased and relied on defences of self-defence and provocation. Both defences were rejected. The prosecution proved that the deceased did not unlawfully assault the offender so the offender was not acting in self-defence. As to provocation the Court accepted the offender's evidence that the deceased had stolen betel nut from him earlier that day and there was a history of such conduct by the deceased and that the offender had good cause for being angry with the deceased and for confronting him with the allegation that he was a thief. However the prosecution proved that the offender did not act in the heat of passion, there was no sudden provocation and he cut the deceased after there was time for his passion to cool. Further details of the case are in the judgment on verdict, the State v Junior Paul Paina (2014) N5819.

I say sorry to the deceased's family and to my family. I have a wife and children to look after and I have to care for my mother and my brothers and sisters. The deceased's wife Angela has spoken to me and told me that she wants me to come out of prison so that I can work and make money to pay them more compensation. She said that the deceased's relatives are wanting her to pay compensation to them, so she needs assistance in raising money. I ask for the mercy of the court so that I do not have to spend too much more time in prison.

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

6. His family is strongly supportive of him. His adopted father, Paul Paina, speaks very favourably of him, and wants the court to take into account the circumstances of the death, which was the result of built-up frustration due to the deceased's irresponsible actions over a long period. The local ward member, Bill Gera, also spoke favourably of the offender. It was an unfortunate incident but he wants the court to consider that the local community has done well to try to bring peace between the families. The offender's family had paid K3,000.00 cash and four live pigs soon after the incident. Three members of the deceased's family were interviewed. They acknowledged the receipt of the cash and pigs but their view is that that was just bel kol, not real compensation and that without real compensation the offender should be imprisoned.

7. Mrs Meten 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 in Manu Kovi v The State (2005) SC789. There was a strong element of de facto provocation, he is a first-time offender, he did not resist arrest, he cooperated with the Police, he has shown remorse and made a genuine attempt to compensate the deceased's family. A sentence of 16 to 20 years is warranted and there is a strong case for a suspended sentence.

8. Mr Pil disagreed that this was a category 2 case. He submitted that because of the viciousness of the attack, there was a strong intention to cause grievous bodily harm. No regard should be paid to the statement in allocutus of the alleged attitude of the deceased's widow as the offender had not pleaded guilty and there was no evidence that that was in fact the view of the widow. The sentence must reflect the seriousness of the offence, and therefore should be in the range of 20 to 30 years imprisonment.

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 from the leading Supreme Court case of Manu Kovi v The State (2005) SC789.

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. I accept Mrs Meten's submission that this is a category 2 case and the starting point range is 16 to 20 years.

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

13. Four recent cases I have decided provide useful precedents. In the Kimbe case of The State v Julius Kembu CR No 288/2009, 23.04.09 the offender pleaded guilty to the murder of a man who he believed had threatened his wife, had sex with her and made her pregnant. The offender, together with four others, staged a planned attack on the deceased who was busy off-loading cargo from a vehicle when he was attacked. The offender cut him on the back with a bushknife and the deceased ran towards the beach. The offender and the others chased him, with their knives. The wounds inflicted on the deceased were serious and he died through loss of blood from those injuries. It was dealt with as a category 3 case according to the Kovi guidelines but I imposed a sentence of 18 years, which was below the starting point range of 20 to 30 years because of the strong element of de facto provocation and evidence of reconciliation between the offender and the deceased's relatives.

14. In the Wewak case of The State v David Solomon Lingen CR No 1292/2009, 20.11.09 the offender pleaded guilty to the murder of a man who had over a long period ill-treated him. The offender approached the deceased and attacked him with a bushknife on the right side of the neck and face. The wounds inflicted on the deceased were serious and he died through loss of blood from those injuries. It was dealt with as a category 3 case according to the Kovi guidelines but I imposed a sentence of 18 years, which was below the starting point range of 20 to 30 years because of a strong element of de facto provocation. It was also significant that the offender acted alone, not in a group.

15. In the Madang case of The State v Abaya Ulas (2010) N4009 the offender, a police officer, was not on official police duty but went to a village where the deceased was staying and with the help of others, raided the house the deceased was staying in and fired at least two shots from a police-issued firearm that he was carrying. The deceased died soon afterwards from loss of blood caused by a bullet wound to the leg. The offender was convicted after a trial. It was dealt with as a category 2 case under the Kovi guidelines and there were a number of mitigating factors warranting a sentence at the low end of the starting point range: 16 years imprisonment.

16. In another Madang case, The State v Jacob Aku Matai (2011) N4256, 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 long running tension between the offender and the deceased, treated as a category 3 case. The sentence was 22 years imprisonment.

17. To determine the head sentence I will focus on the starting point range of 16 to 20 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be at the low end of or below the starting point range. The more aggravating factors present, the more likely the head sentence will be at the top end or 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.

20. There are more mitigating factors than aggravating factors. The appropriate sentence is at the bottom of the starting point range: 16 years imprisonment.

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

21. 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 1 year, 3 months, 4 days.

22. This is the sort of case that with a guilty plea or payment of more compensation or a different attitude on the part of the deceased's relatives, a partial suspension would be justified. But the offender took the matter to trial and as the deceased's relatives said no 'real' compensation has been paid. In a homicide case the attitude of the deceased's relatives is a very important consideration to take into account when deciding whether to suspend any or all of the sentence. There will be no suspension of any part of the sentence.

23. Junior Paul Paina, 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	16 years
Pre-sentence period to be deducted	1 year, 3 months, 4 days
Resultant length of sentence to be served	14 years, 8 months, 3 weeks, 3 days
Amount of sentence suspended	Nil
Time to be served in custody	14 years, 8 months, 3 weeks, 3 days
Place of custody	Beon Correctional Institution

Sentenced accordingly.
_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender

National Court of Papua New Guinea

State v Paina [2015] PGNC 12; N5867 (19 February 2015)