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State v Kuau [2018] PGNC 490; N7602 (23 November 2018)

N7602

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 1471 -1472 of 2016

THE STATE

V

PETRUS KUAU
&
DOMINIC BUNA

Kokopo: Susame, AJ
2018: 19 - 23 November

CRIMINAL LAW – Sentience after Trial - Offence – Murder – S300 (1)(A) Criminal Code- Sentencing Guidelines – Mitigating Factors – De facto Provocation – No Weapons Used – Expression of Remorse – Nothing Tangible Done – Aggravating Factors – Abuse of Alcohol – Punching and Kicking of a Defenceless Person by Two Persons- Force Quite Excessive – Multiple Raptures of a Normal Spleen - Intention to Cause Grievous Bodily Harm – 14 & 16 Years Imprisonment Imposed.

Cases cited
Simon Kama v The State (2004) SC740
Manu Kovi v The State (2005) SC789
The State v Tom & Bobi [2009] N3675
The State -v- Steven Mul Mangi (No 2) (2005) N2993
The State -v- Gibson Mondo (2002) N2339

Counsel:

Mr. Tugah, for the State
Ms. Jean Marie Ainui, for the prisoners

DECISION ON SENTENCE

23 November, 2018

1. SUSAME, AJ: Prisoners were convicted after trial on 2 November 2018 and are in court to receive their sentence.

FACTS

2. Facts are found in the judgment of the court delivered on 2 November 2018. For purposes of sentencing I set out the relevant facts. Deceased and others including prisoner Dominic had been drinking on the evening of 27 April 2016 at the deceased’s house. Later that night they all ended up at prisoner Petrus’s house. Petrus was playing music then. Deceased and other drunkards started dancing to the music. Deceased started behaving in a disorderly manner. Few times he entered the room where Petrus’s son was sleeping and Petrus had to order him out. While behaving in that disorderly manner he damaged the wall of the house and pulled Petrus’s son out of the bed making him fall off the bed. Petrus went and comforted his son when deceased came over stood in front of him and told him to suck his penis. That provoked Petrus and he assaulted the deceased who fell down. While the deceased was lying on the ground both Petrus and Dominic continued to punch and kick him. After deceased was assaulted he felt sever pain around his abdominal area and Dominic had to assist him to his house. Deceased condition was getting worse and he was taken on a vehicle to Vunapope hospital that night. However, he was pronounced dead by the medical doctor who attended to him.
3. The medical report stated he received multiple ruptures on a normal spleen which caused excessive internal bleeding which in turn caused cardio respiratory arrest resulting in death.

300 MURDER.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:–

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

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Penalty: Subject to Section 19, imprisonment for life.

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SENTENCING CONSIDERATIONS

Sentencing guidelines

4. Simon Kama v The State (2004) SC740 and Manu Kovi v The State (2005) SC789 are two authorities most often referred to in homicide cases. In Simon Kama v The State the bench comprising of Sevua, Kandakasi and Lenalia JJ, guidelines prescribed were limited to murder cases as set out below.

5. A year later the Supreme Court bench comprising of Injia DCJ (as he then was), Lenalia and Lay JJ, in Manu Kovi v The State went further in setting down guidelines in all category of homicide cases which are tabulated below:

6. It is noted that Sentencing tariffs for murder recommended by the Supreme Court in both cases are not identical.

Allocutus

7. Petrus Kuau expressed his apology to the court. He said he respects the court. He is a first time offender. His children are in school and there will be no one to take care of them at home. He is struggling to look after them. He asked court to have mercy on him. That was all he said.
8. Dominic Buna expressed his apology to the court. Court has found him guilty. He is a first time offender. He lives with his two sisters and his mother who is a widow in the village. He is struggling to take care of them. They benefit from his work. He looks after his two sisters and two children. That was all he said.

Pre-sentence & means assessment reports

9. Separate reports were prepared for the prisoners. Petrus Kuau is 46 years old. He is married and has 7 children. The eldest is 25 years old and the youngest is still a toddler. The prisoner was employed as a security guard at Kabaleo Primary School and was on a fortnightly salary of K280.00. Though he does not have surplus funds set aside as savings from his fortnightly income. Other than that he does not have other source of income.
10. Despite the verdict prisoner, his wife and the pastor interviewed could not accept the decision. They all including the author of the report recommended for a non-custodial sentence.

Dominic Buna is 32 years of age. He is a single father of two twin 9 year old daughters form his broken marriage. They are both attending elementary school at Kabaleo. The highest grade prisoner had completed was grade 11 at Malabanga Secondary School. He plans to continue his education. Persons interviewed vouching support for the prisoner gave a favourable character report. They pleaded for the prisoner to be placed on probation including the author of the report.

11. The victim’s father and aunt expressed their dissatisfaction of the lacking of interest shown by the prisoners and their respective families to pay compensation when attempts were made. So they want nothing less but justice to be done for the death.
12. Prisoner was working as a security guard at Kabaleo Teachers College and was on a fortnightly salary of K350.00. If compensation is ordered he is prepared to pay K3000.00 plus 100 “param tabu” shell (traditional legal tender of the tolai people equivalent to K500.00 in value).
13. Ms. Ainui submitted both prisoners are first time offenders. That they acted out of de facto provocation. While Dominic committed the offence under influence of alcohol which is a factor against him. She submitted the present case falls under category I of Manu Kovi tariffs with a sentencing range of 12 – 15 years. She referred court to the case of The State v Tom & Bobi [2009] N3675 in which each prisoner received 12 years sentence after trial. In her final appeal she considered 12 years should be imposed other than the maximum life sentence. She further asked for a partial suspension of sentence.
14. Mr. Tugah in his address on behalf of the state submitted the aggravating factors present in the case were that there was more than one blow to the deceased head and chest by the prisoners. They intended to cause grievous bodily harm. The attack was in the night and vicious at a defenceless and armless person. Two decided cases were referred to: Joseph Enn v The State SCRA 3 of 2003 and The State v John Vali. Sentences imposed were 20 years and 25 years respectively.
15. Mr. Tugah submitted the offence is very serious and carries the maximum life imprisonment subject to s 19 for court to impose an alternative penalty. Furthermore, he submitted the present case falls within the high end of category 2 and lower end of category 3 of the Manu Kovi tariffs. In the end he asked for a strong punitive and deterrent sentence for the loss of life.
    

REASONS FOR DECISION.

16. What is the appropriate sentence court should impose? Let me start by considering factors for and against the prisoners.
17. Firstly, mitigating factors that lean in favour of the prisoners are that, they both have no prior convictions and first time offenders. Of the two prisoner Petrus acted out of de facto provocation. No weapons were used to cause the death. There was no pre-planning.
18. Secondly, the aggravating factors that weigh against the prisoners are that there is an element of viciousness in the attack of the deceased. Continuous attack on a defenceless and helpless person lying on the ground by two person is excessive which clearly shows there was intention to cause grievous bodily harm. Dominic was influenced by alcohol and aided Petrus in the assault of the deceased. There was meeting earlier on at Ralum Police Station where there was undertaking form the prisoner’s family members to pay some form of compensation. Since that meeting nothing tangible had been done. They appeared uninterested. Even though they have each said sorry to this court I consider their expression of remorse is not complete. If anyone they should have apologized to the deceased family to reconcile with them with payment of compensation when they had the opportunity to do so earlier. In my assessment the factors in aggravation outweigh the factors that lean in favour of the prisoners.
19. Thirdly, pleas were made for court to impose a non-custodial sentence and the prisoners to be released on probation because of family concerns. Let me say this when you take away someone’s life pre-maturely from the face of the earth that is very serious. A young man’s life has been taken, it can never be replaced by whatever amount of apology or money or kind paid as compensation. All that is left behind is so much grief and sorrow to his immediate family members which time will heal.
20. If a non-custodial sentence is to be imposed for such a serious crime there must be justification to move the court to impose such a sentence. Court has not been referred to any case courts have done that in the past. Nonetheless, my view is that when you commit a serious homicide crime you will go to jail. Deaths which are preventable are far too common and is ever increasing. As such the call for a strong punitive and deterrent sentence cannot be ignored.
21. Prisoners will be separated from their family members, friends, and job, not for ever but temporarily in an enclosed environment with certain restrictions. That is a natural consequence of committing a serious crime. Friends, relatives and family members, will visit them and prisoners will communicate with them. Unfortunately, that is not going to happen for the family of the deceased.
22. Thirdly, consideration of tariffs in Simon Kama & Manu Kovi. If I were to abide by the standards prescribed in Simon Kama prisoners’ sentence should fall within the range of 22 – 41 years (i.e. under category E). Manu Kovi is the recent Supreme Court decision. As such I will follow the criteria set in that case.
23. In my assessment, circumstances of the present case do not place it in the fourth category of Manu Kovi guidelines deserving the maximum life sentence. Such factors are lacking to justify the maximum penalty. Alternatively, a sentence lower than the maximum will be considered.
24. Fourthly, consideration of sentences in decided cases becomes useful in reaching a specific sentence. There is a large volume of decided cases to use as a guide. In my respective view deaths arising from drunken brawls are more relevant. I prefer to use them than the ones Mr. Tugah referred to which deaths occurred outside of such settings.
25. First is the case of The State v Tom & Bobi (supra) presided by His Honour Makail J. On plea prisoners were sentenced to 12 years each for a murder charge. Deceased died in a drunken brawl at night in a club setting. The deceased, and the two prisoners were drinking beer together. An argument arose between the deceased and prisoner, Tupis Tom who was his relative over money. The deceased had demanded from him some money. When the deceased did not get a satisfactory response he swore at him telling him to go and eat his penis. That provoked Tom who punched the deceased. That resulted in further exchanges of punches and wrestling between them. The fight was stopped and deceased was taken outside the club. The other prisoner came few minutes later and started assaulting the deceased who never put up a fight. The prisoner’s heavy blow on the left rib cage fractured one of his rib bone. The deceased collapsed and died of respiratory failure due to collapsed left lung.
26. Next is the case of The State -v- Steven Mul Mangi (No 2) (2005) N2993, His Honour Kandakasi J presiding.
27. In that case, the prisoner was sentenced to 35 years for murder after trial. Deceased was stabbed to death during a night club drunken brawl between the prisoner and the deceased.
28. Third is the decision of His Honour Injia J (as he then was) in The State -v- Gibson Mondo (2002) N2339. The prisoner was sentenced to 13 years imprisonment for manslaughter upon his plea. The deceased was attacked by the prisoner and a group of friends during a drinking party. He was accused of stealing the prisoner’s radio. In attempting to escape, he was punched and kicked all over his body including his head which caused his death.
29. Furthermore, I want to say that there are some similarities of the three cases to the present case but distinguishable. Death arose during a drinking session. But, at a private home when deceased, Dominic and other drunkards got onto Petrus property without being invited and started dancing to the music that was on. Deceased started behaving disorderly, disrespectful and insulting manner and provoked Petrus to assault him.
30. In view of the above factors prisoners sentence should fall between the upper end of category I and lower end of category 2 of Manu Kovi tariffs that is, between 15 & 16 years. Prisoners should therefore receive a sentence of 16 years.
31. However, concession will be made in respect of prisoner Petrus because he acted out of provocation not in a strict legal sense to further mitigate his culpability. As for prisoner Dominic he never acted out of provocation but out of influence of alcohol and in support of Petrus. For that reason no concession will be made in regard to his sentence.
32. From all the discussions this is the sentence of the court.
    1. Prisoner Petrus Kuau is sentenced to 14 years with hard labour less pre-sentence custody period.
    2. Prisoner Dominic Buna is sentenced to 16 years with hard labour less pre-sentence custody period.
    3. Resultant sentence to be served at the Kerevat Goal.
    4. Court orders that monies paid as bail and security if any paid by the guarantors to be refunded forthwith.

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Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused