State v Wakapo [2018] PGNC 427; N7529 (24 September 2018)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW – Sentence – Guilty Plea - Wilful Murder - Section 299 (1) Criminal Code – Use of dangerous weapon – pre-planned- vicious and cowardly.

Cases Cited:

Brief Facts

3. The facts as agreed to by the Prosecution and Defence on the depositions for the plea of guilty are these. On 14 September 2017 at about 3 pm the accused and his two male friends went to a roadside market belonging to the deceased and his family. They enquired of the victim but were told by his wife that he wasn’t home and they left. Between 7.30 pm and 8.30pm, that same evening as the victim, Hussein Kambilapin was standing in front of his wife’s market, near their house the accused ran out from a dark spot, ran straight to where the deceased was standing and stabbed him on his left chest with a short knife and disappeared into the dark and ran towards the direction of Don Bosco Secondary School gate. The deceased’s relatives and friends standing nearby gave chase and apprehended the accused. He was assaulted and later handed over to the police whilst the deceased was taken to Vanimo General Hospital for emergency medical assistance. Hussein Kambilapin died from internal bleeding from the stab wounds at 9.30pm the same night. The State alleged that the accused intended to kill the deceased when he stabbed the deceased on his left chest.

4. The accused does not have any prior history of crimes committed. He is a first time offender.

5. During allocutus the accused said he was sorry for causing the trouble and admitted causing it. He said sorry to the victim’s family and to his family. He apologised for breaking God’s Law and the Constitution. He asked for leniency and to be put on probation for a shorter time of sentence.

8. Defence Counsel submitted that given the fact that only one stab wound was registered as opposed to thirty nine knife stab wounds in Ure Hane, his client’s case could not be classed in the worst category case. (Ure Hane v The State [1984] PNGLR 105). He argued that as the mitigating factors were evened out the prisoner be sentenced to 15 years in his prepared submissions. However in his oral address he seem to have settled for 20 to 30 years in category 2 of Manu Kovi which he cited. (Manu Kovi v The State SCRA No.51 of 2003.)

9. The maximum penalty for wilful murder under section 299 of the Criminal Code is death. By amendment of 18 September 2013 of the Criminal Code Act 2003 several modes of execution were introduced including lethal injection, medical death, firing squad and or electrocution. Notwithstanding those modes of death penalty sentences available , Counsel of State Mr. Lumen correctly submitted that only those cases that fall under the ‘worst type ’category were deserving of such maximum sentences.(Goli Golu v The State [1979] PNGLR 653; Ure Hane v The State [1984] PNGLR 105.

10. Mr Lumen submitted that the fact of this case fall under category 2 and 3 for wilful murder in Manu Kovi guidelines. (supra). He submitted that the attack was pre-planned and vicious, a weapon was used and there was a strong desire to kill which was done in cold blood and in a cowardly manner. I agree will State submissions and the manner in which the attack was described. State submitted that a punitive sentence be considered taking into account that a young man with a bright future was prematurely murdered. He was aged 23 at the time of his death and was destined to be employed with Population Statistics Information Office.

11. Your case is somewhat strange in that I find no evidence in the committal depositions suggesting any malice and or grudge against the deceased. All I have is that you and your friends making some enquiries earlier in the day on the deceased’s whereabouts from his wife. Having established from the public the deceased’s identity you and your friends positioned yourselves that evening in a secluded dark spot and attacked him, unbeknown to his wife and a friend who were nearby at the time. The attack was so sudden that he was also taken by surprise and not able to defend himself. I note in your statement made to the District Court that you stabbed the deceased in fear as he was approaching you. (Section 96 “Defendants Statement” District Court Act). Unfortunately the prosecution evidence does not agree with your statement. The deceased was stabbed by you on the run while he was standing in front of his wife’s market near their home.

12. To my mind this was not a spur of the moment attack but an attack which was carried out with some planning beforehand. You and your two friends were in this together but for now, only you have been charged and prosecuted to which you have pleaded guilty. As regards what type of sentence this Court should impose upon you I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193). I am more inclined to agree with the State submission that this act of killing was uncalled for, unwarranted and cowardly. An innocent life tragically lost as a result of the attack.

13. Both counsels have rightly pointed out the sentencing tariffs in the case of Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) in these types of cases.

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER
CATEGORY 1	-15 – 20years	-12 – 15 years	-8 – 12 years
Plea. -Ordinary cases. -Mitigating factors with no aggravating factors.	-No weapons used. -Little or no pre-meditation or pre-planning. -Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning. -Minimum force used. -Absence of strong intent to do GBH.	-No weapon used. -Victim emotional under stress and de facto provocation e.g. killings in domestic setting. -Killing follows immediately after argument. -Little or no preparation. - Minimal force used. -Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.
CATEGORY 2	-20 – 30 years-	-16 – 20 years	-13 – 16 years
Trial or Plea. -Mitigating factors with aggravating factors.	-Pre-planned. Vicious attack. - Weapons used. -Strong desire to kill.	-No strong intent to do GBH. -Weapons used. -Some pre-planning -Some element of viciousness.	-Using offensive weapon, such as knife on vulnerable parts of body. -Vicious attack. -Multiple injuries. -Some deliberate intention to harm. -Pre-planning.
CATEGORY 3	-Life Imprisonment-	- 20 – 30 years-	-17 – 25 years
Trial or plea -Special Aggravating factors. -Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	-Brutal killing. Killing in cold blood -Killing of innocent, defenceless or harmless person. -Dangerous or offensive weapons used. -Killing accompanied by other serious offence. Victim young or old. -Pre-planned and pre-meditated. -Strong desire to kill.	-Pre-planned. Vicious attack. -Strong desire to do GBH. -Dangerous or offensive weapons used e.g. gun or axe. -Other offences of violence committed.	-Dangerous weapons used e.g. gun or axe. -Vicious and planned attack. -Deliberate intention to harm. -Little or no regard for safety of human life.

14. As can be seen from the category and range of sentences under wilful murder, your case is mirrored under category two: sentence between 20 years and 30 years. So the question I have to ask myself is what than should the appropriate sentence be in your case. I have had the benefit of submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner. I need not restate them here again. The death was tragic, not warranted and possibly bordering on the shadows of being categorized as falling within the ambit of the “worst types” wilful murder cases. I hold the view that your guilty plea in allocutus and favourable mitigating factors must go in favour also, hence falling short of the “worst type” category warranting death. In any event your remaining mitigating factors have been grossly overshadowed by your aggravating factors. I have said it on many cases that I have decided that offender(s) who plead guilty ought to be given the benefit of reasonable doubt on mitigating matters raised in depositions, the allocutus or in submissions that are not contested by the prosecution.( Saperus Yalikabut v The State (2006) SC 890.

15. After the benefit which I have had on the cases presented before me and the most helpful arguments for and against I have come to the conclusion that the appropriate sentence to be imposed upon you is within the mid-range Category 2 in the Manu Kovi sentencing tariff. Although the case of Manu Kovi is a Supreme Court decision and superior, Courts have often used the sentencing tariffs as a guide. In other words National Courts still have some discretion to deviate from the tarrifs. In your case I intend to deviate from the normal accepted sentencing practise this way: Hussein was murdered at age 24 years. You are aged 34, a difference of 10 years. Presumably had his life not been prematurely taken away to this day Hussein would live to be 34 and be alive today? Be that as it may a sum equivalent of 10 years of your life in my view must be returned to him as part and partial of your overall sentence. Might I add here that had it not been for your guilty plea the upper end of sentencing tariffs in category 2 of Manu Kovi would be imposed?

16. I have read through your report prepared by Marilyn Binjari from Vanimo CBC Office, I must thank her for the report. I gather from your report that your suitability for probation was not readily recommended. For its worth the Court has been assisted greatly with your personal particulars, your family history and your future plans etc. Due to the very serious nature of this crime, I have decided against considering a probation sentence in your case. Your final sentence is as follows:

__________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Prisoner

Luke Makapo	Sentenced to	25 years
	Less pre-trial period	1 year 2 weeks

National Court of Papua New Guinea

State v Wakapo [2018] PGNC 427; N7529 (24 September 2018)