State v Kinamur [2018] PGNC 391; N7503 (15 October 2018)

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CRIMINAL LAW – Sentencing after trial on verdict – guilty of wilful murder – section 299 of the Criminal Code Act Chapter No. 262 – appropriate sentence considered – extenuating circumstances – tense dispute over customary land - whether suspended sentence should be allowed – prisoner able to reconcile and pay compensation – want of information showing willingness to participate in reconciliation and compensation by relatives of the deceased – whether exercise of discretion may amount to improper exercise of the Court’s power

The prisoner was found guilty of the offence, wilful murder, under section 299 of the Criminal Code Act Chapter No. 262. This was his hearing and ruling on sentence.

Goli Golu v. The State [1979] PNGLR 653
Golu Golu v. The State [1988-89] PNGLR 653
Manu Kovi v. The State SC 789
State v. Anita Kelly (2009) N3624
State v. Bernard Hagei (2005) N2913
State v. Dilu Kimam (2011) N4323
State v. Evan Kinamur (2018) N7373
State v. Ian Napolean Setep [1997] PNGLR 428
State v. Isiah Iona (2018) N7480
State v. Joe Ngotngot (2016) N6364
State v. Saku Uki Aiya (2011) N5198
Ume v. The State [2006] SC836

1. ANIS J: The prisoner was convicted of the offence, wilful murder, under section 299 of the Criminal Code Act Chapter No. 262 (CC Act) on 20 July 2018. The sentence hearing proceeded on 7 September 2018, that is, after receipt of the prisoner’s pre-sentence report. I reserved my ruling thereafter to a date to be advised.

3. The indictment and brief facts were stated in my decision on verdict, so I will refer to that, that is, in State v. Evan Kinamur (2018) N7373. But briefly, the prisoner killed one Jeffrey Atoi at Inolo village on the Duke of York Island of East New Britain on 30 September 2017. He had alleged that the killing was accidental. His defence of accident was disproved by the prosecution, and he was convicted by this Court of wilful murder on 20 July 2018.

4. The issues are as follows, (i) whether the prisoner should be sentenced to death, (ii) if not, whether the prisoner should be sentenced to life imprisonment or less, and (iii), if the prisoner is not sentenced to death or given life imprisonment, what would be his fitting sentence, and whether suspended sentence and other terms and conditions should be imposed?

5. The prescribed penalty for the offence, wilful murder, is death. That is followed by life imprisonment or a reduced sentence. The provision that states the prescribed penalty for the offence is section 299 of the CC Act. The other relevant provision that gives Courts the discretion to impose lower sentences, is section 19 of the CC Act.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided—

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term; and

7. No information or interviews were received or conducted, on relatives of the deceased. In the pre-sentence report, the probation officer states that the deceased’s sister had been called in for an interview but had failed to turn up on the appointed date and time.

9. He is 55 years old. He is married with 5 children. He is a qualified welder. Prior to the date of his crime, he was employed by Rabweld Ltd. He is literate having completed primary, secondary and vocational education.

10. The prisoner had these to say at allocatus. He said he respects the Court and its decision to have found him guilty of wilful murder. He said he is 55 years old. He said he is sorry in God’s eyes. He also says sorry to the Court. He said he has prayed to God and has asked him to have mercy on him. In the same fashion, he asks the Court to have mercy on him. He asks the Court to give probation and place him on good behaviour bond. He said he wants to reconcile and pay compensation to the families of the deceased. He said he now thinks of his children and their school fees.

11. I have considered what counsel has submitted for mitigating and aggravating factors. In my view, the mitigating factors are, (i), the prisoner being a first-time offender, (ii), the prisoner had cooperated with police, and (iii), the prisoner has expressed remorse and regrets in Court.

12. In my view, the aggravating factors are, (i), the use of bush-knife which is a dangerous weapon, (ii), the deceased was defenceless and harmless when he was attacked with the bush-knife, (iii) deceased sustained a very serious long deep neck wound, and (iv), there was loss of life.

13. I find that there may be extenuating circumstances in the matter. The dispute was between two (2) cousin brothers over customary land. The prisoner is a son of the elder sister whilst the deceased was a son of the younger sister. Acquisition of land in this instance, following the custom of the prisoner and the deceased, is by birth through the eldest daughter in a family under the matrilineal society or practice. Prior to the death, the prisoner and the deceased had quarrelled as to who rightfully owned the land where the prisoner’s house was situated. The quarrel had occurred for some time before the deceased was wilfully murdered by the prisoner on that fatal day.

14. It was not disputed at the trial that it was the deceased that had approached or entered the premises of the prisoner. Evidence revealed that the tension between the two persons was still high at that time. The deceased’s presence at the prisoner’s premises had enabled the prisoner to confront and carry out his actions, that is, he approached the deceased and swung his bush-knife at him killing him. The prisoner also alleged that the deceased had sworn at him using foul languages. However, the allegation had been disproven by the State witness, as I have addressed in my earlier decision on verdict.

15. Nevertheless, and in summary, I find the presence of extenuating circumstances as explained.

16. The prosecution submits that the prisoner should receive a prison sentence within the range of 20 to 30 years. It relies on the sentence tariffs set-out in the Supreme Court case of Manu Kovi v. The State SC 789. It submits that the present case falls within category 2. It also submits that the prisoner had pre-planned the attack; that a dangerous weapon had been used and that the prisoner had a strong desire to kill the deceased.

17. Cases referred to are, Manu Kovi v. State (supra), Goli Golu v. The State [1979] PNGLR 653, State v. Ian Napolean Setep [1997] PNGLR 428, Ume v. The State [2006] SC836, State v. Anita Kelly (2009) N3624 and State v. Bernard Hagei (2005) N2913.

18. The defence also refers to the Supreme Court case of Manu Kovi. Counsel submits that wilful murder committed by the prisoner falls within categories 1 and 2, that is, based on the sentence tariff table set-out in Manu Kovi. Counsel submits that the Court should impose a prison sentence of 20 years. From the said sentence, counsel submits that partial suspension should be imposed with strict conditions.

19. Cases referred to by counsel are as follows: Manu Kovi v. State (supra), Golu Golu v. The State [1988-89] PNGLR 653, State v. Dilu Kimam (2011) N4323 and State v. Saku Uki Aiya (2011) N5198.

20. I do not think that this case should attract the maximum sentence of death or life imprisonment. I have considered the relevant case law, some of which were submitted by counsel. Because the case law and sentence considerations submitted by both parties are, in my view, relevant and applicable, I will rely on them. In so doing and in this case, the sentence range for the prisoner, in my view, should be between 20 to 30 years.

21. Considering (or adding) the aggravating factors, I will start with a proposed sentence term of 30 years. The mitigating factors, in my view, is only one which is that the prisoner is a first-time offender. I will not regard co-operation with the police as a relevant fact in this case because there was no admission to the commission of the offence which had ensured a trial on verdict. Nevertheless, and in view of the mitigating factor, I will deduct 4 years from the proposed 30 years sentence. This reduces the proposed sentence to 26 years.

22. Considering the extenuating circumstances, I will deduct 10 years from the reduced proposed sentence of 26 years. The new reduced proposed sentence now stands at 16 years. I am inclined to sentence the prisoner to 16 years imprisonment. But before I do so, let me consider whether I should also grant a suspended sentence for the prisoner.

23. I refer to the pre-sentence report. The prisoner tends to have high standing and regard in his community. These were attested to by those persons who were interviewed by the probation officer. The impression impressed upon the Court by the report is that the offence, although very serious, was a one-off incident.

24. The prisoner seemed to have enjoyed a good job with a good family. His first-born son who gave evidence in Court is currently attending secondary school. It seems that life was better for the prisoner right up until the time he committed the offence.

25. However, I note that the offence committed by this prisoner is very serious. And I think that I have already given sufficient concessions to the prisoner, that is, in terms of reducing his sentence. To add more, in my view, may be unjust or unreflective of the type of punishments that are warranted for offences of this nature, namely, wilful murder. Let us not forget that the deceased is dead. He is gone forever not because he wanted to but because of the actions of the prisoner. The prisoner is alive and well today. And he now pleads to be released early so that he could essentially enjoy the privileges of life, or of what life has to offer outside of prison, that is, those very things that he has denied the deceased from also enjoying when he wilfully murdered him on 30 September 2017. As such, the prisoner, in my view, must suffer or pay appropriately for his crime as prescribed by law, and if I may add that subject also to the exercise of the Court’s discretion.

26. The defence submits that the prisoner is willing to reconcile and compensate the relatives of the deceased. It is also stated in the pre-sentence report.

27. I will disallow this consideration for the same reasons stated above in my judgment under the sub-heading Suspended Sentence. I will also disallow the consideration based on reasons stated in the cases State v. Isiah Iona (2018) N7480 and State v. Joe Ngotngot (2016) N6364. I said in these cases that reconciliation or compensation cannot be had without the consent or approval of the victim or the families of the victim. I said that for the Court to proceed and exercise its discretion based solely on one sided information may amount to improper exercise of its discretion. I say the same for this case. I note that there is nothing in the presentence report that states the position of the relatives of the deceased concerning the prisoner’s intention to reconcile and pay compensation.

28. This Court therefore does not have information to say whether the relatives of the deceased are for the idea of reconciliation and compensation. Without this information, I am not better placed to exercise my discretion in that regard. To do so, in my view, may amount to an abuse of my discretionary power, that is, to do so without knowledge or regard to the other party’s position on the subject matter.

29. The prisoner was arrested and put in custody on 30 September 2017, and he has remained there ever since. To this day, the prisoner will have spent a total of 1 year 15 days in custody. The defence submits that these days be deducted from the prisoner’s prison term. The prosecution makes no submissions in this regard.

30. It is a discretionary matter. I will exercise my discretion accordingly. In this case, I will deduct the pre-sentence custody period of 1 year 15 days from the prisoner’s 16 years custodial sentence.

Length of sentence imposed	16 years
Pre-sentence period in custody to be deducted	1 year, 15 days
Amount of sentence suspended	Nil
Time to be served in custody	14 years, 11 months and 15 days
Other Conditions:	Nil

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Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Prisoner

National Court of Papua New Guinea

State v Kinamur [2018] PGNC 391; N7503 (15 October 2018)