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State v Olga [2022] PGNC 146; N9561 (16 March 2022)

N9561

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 319 OF 2019

BETWEEN
THE STATE

AND
PUT OLGA

Baisu: Toliken, J
2022: 16^th March

CRIMINAL LAW – Practice and Procedure – Sentence – Murder – Guilty plea – Killing of a relative – Father kills son with an axe – One axe wound to the neck severing right carotid artery and aortic arch, and perforating wind pipe – Mitigating factors – Guilty plea, co-operation with police, nil priors, advanced age and self-inflicting nature of killing of a relative among others considered – Aggravating factors – Use of dangerous weapon, strong intention to cause grievous bodily harm and prevalence of offense – Appropriate sentence – 10 years less time in pretrial custody – Suspension – Inappropriate – Not supported by pre-sentence report – Criminal Code Ch. 262, s 302.

Cases Cited

Avia Aihi v The State (No. 3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 652
Lawrence Simbe v The State [1994] PNGLR 38
Kesino Apo v The State [1988-89] PNGLR 182
The State v Robert (2021) N9002
The State v Kialo (2014) N6846
The State v Tavari (2014) N5619
The State v Jack Mek (1997) N1575

Counsel

P Tengdui, for the State
W Dickson, for the Prisoner

SENTENCE

16^th March, 2022

1. TOLIKEN J: The prisoner Put Olga pleaded guilty before Her Honour

the late Sagu J on 18 June 2020 for one count of murder pursuant to Section 300(1)(a) of the Criminal Code Ch. 262 (the Code). Soon after that Her Honour took ill and eventually passed away in April 2021 before she could pass sentence.

2. On application from the State pursuant to Section 576 (3) of the Code, I now

proceed to pass sentence. Section 576 of the (3) of the Code, I now proceed to pass sentence. Section 576 (3) relevantly provides –

576. INCAPACITY OF JUDGE

...

(3) If after an accused person has been convicted of an offence but before sentence

the presiding Judge becomes incapable of proceeding, some other Judge may, on

application by the accused person or his counsel, or by a State Prosecutor, proceed

to sentence as though the accused person had been convicted by him.

FACTS

3. On 23^rd October 2018, the prisoner was at home in his village at Rauna, Dei, Western Highlands Province with his wife and son Sent Put (deceased), between 6.00p.m and 6.30p.m. He had a brief argument with his son, the deceased. Soon after that he took an axe and swung it at the deceased, intending to cause him pain and grievous bodily harm. However, he inflicted a deep cut to the deceased’s neck severing a blood vessel which resulted in heavy loss of blood. The deceased was rushed to the hospital but died on the way due to severe loss of blood.

4. The post-mortem report which the State referred to in its brief statement of the fact (without objection) noted that the deceased suffered “Deep penetrating wounds to the right anterior aspect of the neck severing the right Carotid Artery and the aorta arch. Also, the trachea was perforated causing death.”

THE OFFENCE

5. The offence of murder carries a maximum penalty of life imprisonment, subject to the court’s discretion under Section 19 of the Code to impose a lesser sentence.

6. The maximum penalty is, however, usually reserved for the instances of worst offending. Each case must also be treated on its own peculiar facts and circumstances so that an offender gets a sentence that befits his crime. (Goli Golu -v- The State [1979] PNGLR 652; Avia Aihi v The State (No 3) [1982] PNGLR 92; Lawrence Sime v The State [1994] PNGLR 38.

ISSUES

7. Is this case therefore a worst case of murder such that it ought to attract the maximum penalty; or does it deserve a lesser sentence for a term of years? What then should be appropriate sentence for the prisoner.

ANTECEDENTS

8. The prisoner was 57 years old at the time of the offence. He would now be 61 years old. He comes from Rauna Village, Dei, Western Highlands Province. He is married with 4 children – 3 girls and the only son, the deceased. The two eldest daughters were already married by the time submissions on sentence were made on 26^th June 2020. We have no current information about the younger daughter. The prisoner himself is the eldest of 7 siblings. He is a member of the Assemblies of God (AOG) Church, was educated up to Grade 6 only and is a subsistence farmer. He has been in custody since his apprehension on 23^rd October 2018 for a period of 3 years 4 months and 20 days. He has no prior convictions.

ALLOCUTUS

9. The prisoner apologized for his offence. He pleaded for a short sentence because of his advanced age and said the record of what happened can be found in his court file.

SUBMISSIONS

Defence

10. Mr. Dickson submitted on behalf of the prisoner that this is not a worst instance of murder which should attract the maximum penalty of life imprisonment. On the contrary there are significant mitigating factors including non-legal or de facto provocation, which counsel said outweighed the aggravating factors. I do agree with most of these factors and will come back to them shortly.

11. Counsel further submitted that the circumstances of the case would place it on the higher end of Category 2 and the lower end of Category 3 of the Manu Kovi guideline tariffs. (Manu Kovi v State (2005) SC 789) It should therefore attract a sentence between 15 – 20 years. Therefore, an appropriate sentence would be 15 years less the time spent in pre-trial/sentence detention.

12. The prisoner’s pre-sentence report (PSR) is not favorable. He has not paid any form of compensation or bel kol to his deceased son’s maternal uncles as is the
custom here because he simply does not have the means. His own relatives and immediate family members are also unwilling to assist him. Had he not immediately surrendered to the police he would have been killed by angry maternal relatives of his son who were out looking for him to avenge the death of his son. His relatives and his son’s maternal relatives, however, agreed to maintain peace and have resolved to let the prisoner face the full brunt of law for his offence. His own siblings were unwilling to give volunteer information regarding him which clearly showed their displeasure for what the prisoner did. Community leaders interviewed for the PSR were of the view that the prisoner does not have a good reputation in the community and were unwilling to help supervise, let alone, rehabilitate him. Early release of the prisoner will not be taken too kindly and will stir up trouble for the prisoner.

The State

13. Mr. Tengdui conceded on behalf of the state that this is not a worst instance of murder and therefore a term of years will be appropriate. Counsel cited several aggravating factors which I agree with and will presently come to. Counsel, however, acknowledged that the prisoner is a first-time offender, pleaded guilty to his offence and co-operated with the police by immediately giving himself in. counsel further asked the Court to consider the advanced age of the prisoner who at that time was 57 years old. He is now 61 years old. Given the low life expectancy of rural Papua New Guineans, a very long term of imprisonment will be too crushing on the prisoner, counsel submitted.

14. Notwithstanding that, violent crimes are prevalent and stiff sentences are needed for personal as well as general deterrence. On the issue of de facto provocation, which the defence cited as mitigating the prisoner’s offence, counsel submitted that in this case, the argument which led to the deceased’s death, does not amount to provocation at all, whether legal or non-legal.

15. In the circumstances of the case counsel submitted that an appropriate sentence ought to be in the range of 15 – 20 years. Any suspension would be left in the discretion of the Court.

MITIGATING FACTORS

16. I find and accept the following factors as mitigating the prisoner’s offence –

(i) He pleaded guilty early to the charge.
(ii) He is a first-time offender.
(iii) He co-operated with the police by first, surrendering to the police immediately after he committed the offence, and further by making early admissions in his record of interview (ROI).
(iv) There was some non-legal provocation.
(v) He was of prior good character.
(vi) There was no pre-planning involved.
(vii) He acted alone.
(viii) He is an old man of 61 years of age (57 when he committed the offence)
(ix) The offence was self-inflicting as the victim was his own son. (Kesino Apo v The State [1988-89] PNGLR 182)

AGGREAVATING FACTORS

17. Against him, however, are the following –

(a) The prisoner used a dangerous weapon, an axe.
(b) There was a strong intention to cause grievous bodily harm.
(c) He inflicted a severe injury to a vulnerable part of the deceased’s body – the neck area.
(d) This offence, as well as other homicide offences are very prevalent in this society.

DELIBERATIONS

Whether Worst Case

18. So, is this a worst instance of murder? I agree with both counsel that it is not. Therefore, it should not attract the maximum penalty of life imprisonment. I do agree with counsel that it would indeed fall within the upper end of Category 2 and the lower end of Category 3 of the Manu Kovi tariffs, thus attracting a sentence between 15 – 20 years. These are the types of cases where there was a strong desire to do grievous bodily harm, dangerous weapon such as an axe was used, pre-planned vicious attack and other offences were committed. At least two of these factors exist here but there are no special aggravating factors to place the case entirely within Category 3 which would attract a sentence between 20 – 30 years.

Considerations Toward an Appropriate Sentence

19. While this may not be a worst case of murder, it is nonetheless a serious case for which the prisoner ought to be appropriately punished. He has snuffed the life of his son – a young man in the prime of his youth whose only fault was to come to ask of money from his father to buy gramoxone (weedicide) to spray his (prisoner’s)
coffee garden. The prisoner does not say what exactly made him angry, but the statement of one Mona Desmond whom I presume to be the prisoner’s wife, who was present and witnessed the killing, sheds some light as to the verbal exchange between the deceased and the prisoner.

20. She recalled that the deceased had just completed Grade 10 and was in the village. On the day in question, he came to his father’s house and asked him for some money apparently to buy gramoxone to pay for school fees. The prisoner appeared to have been angered by this, picked up a big axe and using both hands struck the deceased on his neck. The deceased did not die immediately but ran off bleeding profusely from his neck wound toward a church building shouting that he had been injured with an axe. There he collapsed and died.

21. In all honesty, the young man was simply asking his father for assistance as any son would of his father. The prisoner did not say that he was angry with his son for asking for money to pay for his school fees but rather because he wanted gramoxone. His reaction to that was not only unreasonable but totally reprehensible. For simply asking for help from his father, the deceased had his life senselessly taken away with a single chop of an axe to his neck. What kind of father would do that?

22. The boy had just completed Grade 10 and had the good sense to assist in his father’s coffee garden. Given his advanced age, this was something which the prisoner would have appreciated, but for whatever reason he decided to attack him with an axe. He said he did not mean to kill the deceased. That may have been true, but the way he attacked his son clearly demonstrated a strong intention to cause him some serious injury or harm, which he did. And he ended up killing his son, something no reasonable and loving father would even contemplate.

23. The prisoner inflicted a single blow on the deceased. The attack was not ferocious nor repeated. However, the blow was delivered to a very vulnerable part of the body. As the post-mortem report showed, the axe blow severed the right carotid artery, one of the two major blood vessels that supply blood to the brain. The aortic arch was also severed, and the windpipe (trachea) was perforated. This bespeaks of the intensity of force used to deliver the blow which was intensified by the weight of the axe. With that kind of force to a vulnerable part of the body such as the neck, it would be a miracle for anyone to survive. And so, while the prisoner may indeed have not intended to kill the deceased, it is safe to assume that he had a strong intention to cause him grievous bodily harm, judging by the fact that he swung the axe at the deceased with both hands. You would not do that if you did not intend to either cause the death of the victim or cause him grievous bodily harm.

24. The prisoner had the choice of using some non-fatal means to chastise his son but did not. Instead, he chose the axe which is a very dangerous weapon.

Comparable Cases

25. Cases of persons killing close relatives (parricide) are generally quite common. However, cases of a parent killing their own child (filicide) do not appear to be that common. Be that as it may, at this juncture it is instructive to note that the killing of a relative is a mitigating factor as it is self-inflicting as the Supreme Court held in Kesino Apo (supra). There the appellant killed his cousin brother while intoxicated and was sentenced to 6 years for manslaughter. The appellant appealed against his sentence essentially on the grounds that (1) his state of intoxication ought to have been taken as mitigating his offence and (2) the trial court erred in holding that killing of a relative was not a factor that could be applied in his favour. On the issue of killing of a relative as the Supreme Court held (Kapi DCJ, Woods, Los JJ) was unanimous (in separate judgments) that the sentencing Judge erred in that regard. Kapi DCJ said at p.183 –

“In a sense, a killing of a relative is self-inflicting in that, a killer may lose a warrior, worker or contributor to bride price or even a helper. This may be regarded as a punitive aspect of the killing which he has brought upon himself. It should not be taken into account as a factor against him but in his favour. The trial judge was wrong in holding this against the appellant.”

26. Woods J and Los J similarly expressed views. Woods J held at p. 184 that “... a killing within the family will usually mean that the perpetrator will suffer shame and the other burdens for the rest of his life for the killing of a relative and therefore a long-term of imprisonment is not really necessary or appropriate as a punishment.”

27. Los J added at p.185 that “... apart from undergoing the punishment imposed by the court, he [the prisoner] would be suffering for the rest of his life from self-imposed punishment. The self-imposed punishment is that he had lost a cousin brother whose assistance he would need in difficult times. While there is therefore a need for general deterrence, in terms of personal punishment, he would be suffering twice.”

28. Having said that, let me just cite a few cases of parricide to give us an idea about the kind of sentences which have been imposed by this court. The cases originally cited by counsel are not entirely similar to the circumstances of the case hence are of no assistance to me. However, the following cases provide some guidance on the trend of sentencing for cases like this.

29. In The State v Robert (2021) N9002 (Batari J) the offender and his brother had for some years been arguing over their father’s oil palm block in Bialla, West New Britain Province. One night when his brother was sitting with others, the offender approached him from the back and struck him on the head with an axe. He then proceeded to cut him on his leg when he fell down. The court held that this was a brutal surprise attack with an axe which it likened to a public execution where the offender exhibited a strong intention to cause grievous bodily harm. While the offender pleaded guilty, was a first-time offender, co-operated with police and killed his own brother, and there were extenuating circumstances, the court held that these were rendered insignificant by the gravity of the offence as suggested in Manu Kovi v The State. The court was of the view that the case could easily fall within both Category 2 & 3 of the Manu Kovi tariffs. It opinioned that an appropriate sentence ought to be between 17 to 20 years. It imposed a sentence of 18 years.

30. The State v Kialo (2014) N6846 (per Injia CJ): The offender and the deceased were married to two biological sisters. On the date of the offence, the offender and the deceased and others went on a drinking spree and were heavily intoxicated from illicit alcohol or home brew. They got into an argument over a power adapter that developed into a fight between them. This led to the deceased trying to set fire to the prisoner’s bush material house. To stop him, the prisoner used a bush knife to cut him from the back on the area between the left shoulder and the chin which severed the left arm. As a result, the deceased died at the scene due to heavy loss of blood. The court held that this was a vicious and brutal killing. It took into account the offender’s mitigating factors including the factor that the killing of the deceased was self-inflicting on both the offender’s and the deceased’s families. It was of the view that the circumstances of the case placed under Category 3 of the Manu Kovi
tariffs but felt that it was not in the interest of justice to impose a very lengthy sentence. The offender was sentenced to 12 years imprisonment.

31. The State v Tavari (2014) N5619 (per Toliken AJ) The offender and his family were at their home on Loupom Island, Central Province. It was raining and his mother and his sister-in-law had returned from the market soaked. They knocked on the door to be let in, but it took a while before the offender opened the door for them. After opening the door, he immediately went back into his room. The offender’s mother then told those in the house to cook for themselves if they were hungry. The offender was not happy with this, so he came out with a bush knife and struck his mother with the flat surface of the knife. His mother cried in pain and ran away but the offender proceeded straight to the kitchen where his brother was scrapping coconut. Without a word the offender attacked him, cutting him first on the left side of his head and then on the back of the head. The deceased was totally unprepared for the attack on him and hence was unable to defend himself. His injuries were serious, and he was rushed to the local Health Centre but died there due to heavy loss of blood. The offender intended only to cause grievous bodily harm to the deceased. I sentenced the offender to 15 years imprisonment.

32. The State v Jack Mek (1997) N1575: The prisoner, a youth in his early 20s was sentenced after trial for murder to 8 years imprisonment. He axed his stepfather (his deceased biological father’s brother) to death after he sided with his mother in an argument with the deceased over the prisoner’s sister. The trial judge, His Honour Injia J (as he then was) found that the prisoner was incited into killing the deceased by his mother. He took into account that the prisoner was “a young man who had a long future ahead without a father to help him make it through young life, marriage and other aspects of life. By his own doing, he has lost his stepfather [and will have
difficulty making] it through in life to become a man.” He also took into account that loss of a close relative is a mitigating factor. The offender was sentenced to 8 years imprisonment.

33. Coming back to the current case, there is no doubt that by killing his son, the prisoner inflicted punishment and shame on himself. He lost a son who would have provided for him in his old age. Moreover, he has essentially ostracized himself from his immediate family, tribe and community who have all expressed, through the PSR that they are not willing to accept him back into the community. They want him to receive his just dessert – incarceration. The prisoner is in a catch 22 situation – he gets incarcerated and dies in prison or he gets a short sentence, gets back into his community, and runs the risk of being killed in retaliation.

34. And so, considering the circumstance of this case, I do agree that an appropriate sentence ought to be between 15 – 20 years. A sentence of 15 years would be most appropriate, but the prisoner is now 61 years old. He appears frail as can be expected for his age and may not survive such a long sentence. Because of his advanced age a sentence of 10 years will be sufficient for him. There is no doubt that he is suffering and is regretting his action. He has been effectively ostracized by his own relatives and community. For a villager, that is a heavy blow to his ego and psyche and may very well be a harsher punishment than loss of liberty.

35. I therefore sentence the prisoner to 10 years imprisonment less the 3 years 4 months and 20 days he had been in pretrial/sentence detention. He will serve the balance here at Baisu Corrective Institution.

36. Because of his unfavourable PSR against his sentence, he is at liberty to appeal his sentence within 40 days from today.

Ordered accordingly.
__________________________________________________________________
P Kaluwi, Public Prosecutor: Lawyer for the State
L B Mamu, Public Solicitor: Lawyers for the Applicant