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State v Kairou [2024] PGNC 252; N10922 (6 June 2024)

N10922

PAPUANEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 868 OF 2023

BETWEEN:
THE STATE

AND:
AKI KAIROU
of
KAMARE VILLAGE, WAU/WARIA, MOROBE PROVINCE
Prisoner

Bulolo/Lae: Polume-Kiele J
2023: 4^th August, 2^nd, 5^th, 13^th & 24^th October,
2024: 7^th February, 19^th March, 2^nd May, 6^th June

CRIMINAL LAW - Sentence – guilty plea – one count of murder – s 300(1) (a) – Criminal Code Act – The penalty of which subject to Section 19 is imprisonment for life” –prisoner used a homemade gun to shoot the deceased on his left collar bone area, resulting in his death.

CRIMINAL LAW- Sentence – Early guilty plea – First time offender- Incarceration appropriate penalty.

Cases Cited
SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418
Avia Aihi v The State [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Goli Golu v The State [1979] PNGLR 653.
Lawrence Simbe v The State [1994] PNGLR 38
Thress Kumbamong v The State (2008) SC1017
Manu Kovi v The State (2005) SC789
The State v Gango Nathan Kayak, CR. No. 922 of 2018
State v Lom [2012] N4725
State v Pinapang [2017] N6616
The State v Bonsu (No.2) [2014] N5571
The State v Jackson (2006) N3237
The State v Moewe [2024] PGNC 135; N10801 (5 April 2024),
The Acting Public Prosecutor v Uname Aumane & Ors [1980] PNGLR 510

Counsel:
Ms. S Joseph, for the State
Mr. C Boku, for the Prisoner

SENTENCE

6^th June 2024

1. POLUME-KIELE J: The prisoner pleaded guilty to one count of murder contrary to Section 300 (1) (a) of the Criminal Code.
   

Brief facts

2. The relevant facts put to the prisoner during arraignment which were consistent with his instructions to his defence counsel and contained on the depositions for the plea of guilty were that: On the 17 May 2014, between 8.00 p.m. and 9.00 p.m., the prisoner, went to Kusngari Village with the intention to harm the deceased. The prisoner, Aki Kairou accused the deceased of practicing sorcery in the village. The prisoner then went to the house of one, Kom Kairou where the deceased was staying the night of the alleged date and time of the offending and used a homemade gun to shoot him on his left collar bone area, resulting in his death. The case was reported to the police sometime later, due to the remoteness of the village in getting witnesses to report the matter to the police. It was reported only during 2023 when the police went over to the village. The alleged offending was investigated, and the accused surrendered to the police and admitted to have shot the deceased, Kolai Kumbu with a homemade gun and killed him. He further admitted that he killed the deceased because the deceased was a sorcerer and had killed many people in the village using sorcery.
   
3. There is no medical report confirming death.
   
4. The State says that the actions of the prisoner contravened s 300 (1)(a) of the Criminal Code.
   

Penalty Provision

5. The penalty provisions for the two charges are set out as follows:
   

(1) Section 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.

or

(b) ...

Penalty: Subject to Section 19, imprisonment for life

Committal Court Deposition

6. The Bulolo District Court Deposition were tendered into evidence by consent which comprised of the following:
   

(i) The Record of interview both the original pidgin and English Version conducted on 9 March 2023 marked as Exhibit "A" relating to the defendant, Aki Kairou during which he admitted to using a homemade gun to shoot the deceased, Kolai who is related to him. He calls him, “bubu” (grandfather). He states that he killed him because he practices sorcery, and he used sorcery to kill members of his family (Admissions are made in Questions and Answers 11 to 20 in the record of interview).

(ii) The Statements of First Constable Sam David (Investigator) and Constable Keran Jason (Corroborator) undated who both respectively confirmed the identity of the prisoner and his demeanour following the commission of the offence during the record of interview conducted on 9 March 2023.

(iii) The Statements of Simon Koit dated 28 February 2023, Morris Wai dated 20 February 2023 and Kom Kairou dated 23 February 2023. All these witnesses state that they are from Ngusi Village at Waria LLG – Wau/Waria District. In their statements, they all alleged that it was Aki Kairou who committed the offence. In that he had planned to kill the deceased and did kill the deceased on the alleged night, 17 May 2014 between 8.00 pm and 9.00 p.m.

(iv) There is no medical certificate of death. The death was not reported due to the remoteness of the area.

7. Upon the reading of the Committal Court depositions and being satisfied that the evidence contained in the disposition supported the charge, the prisoner’s guilty plea was accepted. The prisoner was convicted on the charge of murder under s 300 (1)(a) of the Criminal Code.
   

Antecedent Report

8. The antecedent report presented by the State reveals that the prisoner is married with three children. He has no formal education. He has no prior conviction and is a first-time offender.
   

Allocutus

9. In administering the allocutus, the prisoner was given an opportunity to speak on the question of penalty. The prisoner elected not to speak.
   
10. However, Counsel for the prisoner, Mr. Boku submitted that this is a case involving family circumstances and thus requested that the Probation Officer, Bulolo be directed to prepare a Pre-Sentence Report on behalf of the prisoner.
    

Pre-Trial Detention

11. The prisoner was remanded on 3 March 2023. He has been held in custody for a period of 1 year 2 months 3 days to the date of this judgment on sentence.
    

Pre-Sentence Report

12. The Community Based Corrections Office in this regard was directed by the Court to provide a Pre-Sentence Report which has been made available to this court for consideration. Mr. Jack Micky has prepared a pre-sentence report on the prisoner. I take note of the report and appreciate the time taken to prepare such a report which is appreciated. I also take note of the assessments provided in my overall decision-making process and regarding severity of the penalty.
    
13. According to the Pre-Sentence Report, the prisoner is adult male, married with 3 children. He is from Kamare Village, Wau/Waria LLG, Morobe Province. He has no formal education and lives at Kamare Village, Wau/Waria LLG. The prisoner is a subsistence farmer and depends on his market produce and alluvial mining to sustain himself and his family
    
14. Overall, the Pre-Sentence Report summarises the prisoner as a person who lives alone with his children. His wife passed some 6 years ago. He really does not socialise well with other community members. He is, however, a member of the local Baptist Church and gets on well with fellow worshippers during the weekends. The prisoner is the eldest of a family of 4 siblings. He is very active in relation to his dealing with his land and getting involved in agricultural commodities and alluvial mining. He says that he was cohere by members of his community that the deceased is a sorcerer and that he has killed a number of people, and that the prisoner is next on his list. Thus, being apprehensive of what the deceased would do to him, he retrieved his home-made gun which he keeps as a security for him and his family, approached the deceased and shot him resulting in his death.
    
15. The prisoner accepts full responsibility for his actions. His parents are very supportive and had compensated the family of the deceased, although the report does not specify what type of compensation was made, if paid in cash, how much was paid. The overall assessment of the prisoner is that he is one person who displays a character of being confident with a personality of being sensitive to others. However, overall, he does not really have a friendly character. He is easily influenced by others.
    
16. In all, the report recommends that the prisoner be considered for a non-custodial sentencing to be served under Probationary Supervisionary Orders at the discretion of the Court.
    

Mitigation factors

17. Factors in favour of the prisoner are that he has no prior conviction, has entered an early guilty plea, and had surrendered and co-operated with the Police in their investigation. Further, he is a first-time offender.
    

Aggravating factors

18. The aggravating factors against the prisoner are that this was a premeditated attack, in which a dangerous weapon, that is a homemade gun was used in the attack. It was a vicious attack and there was a strong desire to inflict grievous bodily harm resulting in the loss of a life. Such an offence is prevalent.
    

Issue

19. The issue for determination is the appropriate sentence to impose on the prisoner.
    

Sentencing Principles

20. The prisoner is convicted for the crime of murder, a serious crime for which the maximum penalty prescribed under s 300(1) (a) of the Criminal Code subject to s 19 is imprisonment for life.
    
21. Section 19 discretionary power provisions as to punishments are as follows:
    

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

(aa) ...

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

(b) a person liable to imprisonment may be sentenced to pay a fine not exceeding K2,000.00 in addition to, or instead of, imprisonment; and

(c) a person sentenced on conviction on indictment to pay a fine may be sentenced–

(i) to be imprisoned until the fine is paid, in addition to any other punishment to which he is sentenced; and

(ii) instead of being sentenced to be imprisoned until the fine is paid–to be imprisoned for a term (not exceeding the term provided for in Subparagraph (i)) if the fine is not paid within a specified period (which period may be extended as the court thinks fit); and

(d) a person convicted on indictment of an offence not punishable with death may–

(i) instead of, or in addition to, any punishment to which he is liable–be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) comply with such other conditions as the court may, in its discretion, impose; and

(e) a person convicted of any offence on summary conviction may, instead of being sentenced to any punishment to which he is liable, be discharged on his entering into his own recognizances, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a term not exceeding one year; and

(f) when a person is convicted of an offence not punishable with death, the court may instead of passing sentence, discharge the offender on his entering into his own recognizance, with or without sureties, in such sum as the court thinks proper, conditioned that–

(i) he shall appear and receive judgment at some future sittings of the court or when called on within a period specified by the court; and

(ii) if the court thinks fit, he shall in the meantime keep the peace and be of good behaviour and comply with such other conditions as the court, in its discretion, imposes.

(2) Imprisonment in accordance with Subsection (1) (c)(i), for non-payment of the fine–

(a) shall not extend for a term longer than two years; and

(b) shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(3) In a case to which Subsection (1) (c) applies, the court may give such directions as it thinks proper as to the enforcement of the sentence of imprisonment, including a direction that the person sentenced appear at some future sittings of the court or when called on, by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period or any extension of that period.

(4) If under Subsection (3) a person directed to appear, or called on by notice in the prescribed form, to show cause why the sentence of imprisonment should not be executed because of the non-payment of the fine within the specified period, or any extension of that period, does not appear at the required time and place, a Judge may issue a warrant to arrest him and to bring him before a Judge.

(5) Imprisonment under Subsection (1) (d) for not entering into a recognizance–

(a) shall not extend for a term longer than one year; and

(b) shall not together with the fixed term of imprisonment (if any) extend for a term longer than the longest term for which he might be sentenced to be imprisoned without fine.

(6) When a court sentences any person convicted under Subsection (1) (d) to a term of imprisonment, it may further order that–

(a) the offender be imprisoned for such portion of that term as it thinks proper; and

(b) the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1)(d) but further conditioned that, if called on, he shall appear and receive judgment in respect of his service of the portion of the sentence.

(7) A Judge may, on being satisfied that the offender has committed a breach of any of the conditions of a recognizance under Subsection (6), forfeit the recognizance and commit him to prison to undergo the suspended portion of his sentence or any part of it.

(8)[9] [Repealed.]

(9) Notwithstanding that restriction of movement is not specified as a punishment for an offence, a court may, in addition to any other punishment or punishments imposed, also impose restriction of movement in accordance with Section 600.

(10) When a court is considering the punishment or punishments to be imposed in any case it shall also consider whether, in the circumstances of the case, restriction of movement is an appropriate punishment.

22. It is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the worst type of case, under consideration: SCR No 1. of 1984: Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v The State [1982] 92, Ure Hane v The State [1984] PNGLR 105, Goli Golu v The State [1979] PNGLR 653.
    
23. It is also well settled law that each case must be treated on its own set of facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    
24. Further, the Courts have unfettered sentencing discretion under s 19 of the Criminal Code Act and the Courts are not necessarily bound by the maximum and minimum tariffs suggested by Supreme Courts: Thress Kumbamong v The State (2008) SC1017.
    
25. Similarly, it is also important to ensure that when the Court exercises judicial discretion, careful consideration must be taken particularly in situation where there are issues relating to the sanctity and value of human life. Human life is far more precious and valuable than material things and as such no amount of remorse or compensation will restore the life lost. Therefore, the unlawful taking of another person’s life is a serious and horrendous crime and the perpetrator must be dealt with accordingly.
    

Sentencing guidelines

26. The sentencing guidelines relating to the crime of murder are set out in the case of Manu Kovi v The State (2005) SC789. In that case, the Supreme Court has established a sentencing guideline for homicide cases which had left the National Court with wide discretion available to it when fixing a sentence. In that, the Supreme Court did carefully consider the sentencing guidelines and gave detailed sentencing guidelines for manslaughter, murder and wilful murder. These are useful when considering sentencing for murder.
    
27. The Manu Kovi Guidelines which set out the sentencing tariffs on homicide cases are as follows:
    

SENTENCING TARIFF FOR MURDER OFFENCES

The Sentencing trends

28. I thank Counsels for their assistance for referring this Court to the Manu Kovi guidelines and other case authorities on murder cases for purposes of parity and the sentencing trends that the Courts have followed in relation to homicide matters before the Courts. I make reference to some of these cases and others which I consider relevant as outlined in this ruling.
    
29. In The State v Gango Nathan Kayak, CR. No. 922 of 2018, the prisoner was sentenced to 20 years imprisonment for stabbing the deceased with a kitchen knife on his chest. The deceased died soon after from a loss of blood.
    
30. In State v Lom [2012] N4725, the prisoner pleaded guilty to killing his wife by chopping her with a bush knife 4 times in the garden. The wife was accused of having an affair with another man. The prisoner was sentenced to 18 years imprisonment.
    
31. In State v Pinapang [2017] N6616, the offender pleaded guilty to killing his adopted mother. He had an argument with her and cut her neck with a bush knife. She died instantly from wound inflicted on her. The offender was sentenced to 21 years.
    
32. In The State v Bonsu (No.2) [2014] ; N5571, the prisoner was found guilty on one count of Murder. At Ambunti Station in East Sepik Province, the prisoner hit the deceased with a 4x2 piece of timber on his head and neck killing him instantly. He was sentenced to 20 years.
    

Sentencing Range

33. Regarding the appropriate sentence to be imposed, Ms Joseph for the State submitted that the aggravating factors outweighs the mitigating factors. It is for this reason that an appropriate sentence should be the one with a punitive effect to reflect the seriousness of the offence. This sentence will also serve as a deterrence to the prisoner himself and other would-be offenders. Ms Joseph submits that the use of dangerous weapon to inflict injuries calls for a stiffer penalty. She further submitted that the prevalence of the offence should also influence the type of sentence to be imposed. This is because in the last several years there has been a dramatic increase in the number of homicide cases especially in and around the Wau/Bulolo and Menyamya area. The Court must be firm in punishing the perpetrators of such heinous crime. She submits that the present case falls within the third category of the Manu Kovi Guidelines. A term of imprisonment between 20 – 30 years is an appropriate sentence to be imposed on the prisoner.
    
34. Mr. Boku for the Defence submitted however, that although section 300 (1) of the Criminal Code carries a maximum sentence of life imprisonment for murder, the Court has the discretion under section 19 of the Criminal Code to impose a lesser sentence in place of a maximum sentence. He submits that this case does not fall into the category of worst case and asked the Court to impose between 12 – 16 years with the head sentence of 10 years imprisonment. As the prisoner has been in custody for a period of 1 year 2 months in custody, Mr. Boku submits that the pre-custody period of 1 year and 2 months be deducted pursuant to section 3 of the Criminal Justice Sentencing Act.
    

Determining appropriate sentence

35. Determining an appropriate sentence is influenced by various factors such as the gravity of the offence, the circumstances under which the offence was committed, the aggravating factors, mitigating factors and the extenuating circumstances. All these must be properly weighed out.
    
36. In the present case, the special aggravating factor is that the deceased was killed by the prisoner in a home environment. The deceased was shot at point blank in cold blood. He was an innocent harmless person. This is a complete disregard for a human life. The circumstances under which the deceased died was very tragic indeed.
    
37. Secondly, the frequency and the prevalence of this type of offence is also a factor for consideration. I agreed with Ms Joseph that there is an increase in the rate of homicide cases reported. The criminal lists before the Courts showed a marked increase in homicide cases not only in the Wau/Bulolo area but the country generally.
    
38. Overall, the Court has a duty to impose a punishment that sends out a clear message that it will not tolerate such behaviour. The sentence must be one that signals a very strong deterrent effect that will serve as a deterrence not only to the prisoner but also for other like-minded offenders who might have to consider the consequence of their actions before committing such offence.
    
39. This is a situation where the prisoner had come to the home where the deceased is resting and used a dangerous weapon in a form of a home-made gun to inflict injuries on the victim. This action shows that there was a strong intent on the part of the prisoner to do grievous bodily harm (GBH).
    
40. Whilst I note that there is no medical proof of the injuries sustained by the deceased or cause of death. I accept that the prisoner has fully admitted to the offending in the Record of Interview dated 9 March 2023. The use of a lethal or dangerous weapon to inflict injury also adds on to the seriousness of the offence.
    
41. Finally, the sentence imposed must be aimed at achieving certain outcomes such as deterrence, rehabilitation and restitution. The common law sentencing principles are well established in this jurisdiction. As I reiterated in the case of The State v Moewe [2024] PGNC 135; N10801 (5 April 2024),at [60] ... The principles of sentencing of deterrence, separation, rehabilitation and retribution still remain the same: see The Acting Public Prosecutor v Uname Aumane & Ors [1980] PNGLR 510 at [537-538] per Kapi J.
    
42. The offence of murder is a serious crime. I also note that the offender has voluntarily come forward to surrender to the police. He did admit that he did shoot the deceased in left collar bone resulting in his death. His reasons were that he suspects the deceased of practicing sorcery. The prisoner is about 28 years old when he committed the offence.
    
43. The prisoner is young offender and thus I am of the view to sentencing him to life imprisonment would be too crushing on a young person with a young family as life imprisonment won’t accord him the opportunity to reform himself and become a good law-abiding citizen. I also of the view that people deserve a second chance in life, and this is an opportunity for the prisoner to reflect on his life and that of his young family.
    
44. Furthermore, it is trite law that the maximum penalty should only be reserved for the worst type of case. Having said all that, this case warrants a custodial sentence to be imposed under category 3 of the Manu Kovi guidelines. Consequently, I accept and adopt the submission of Counsel for the State that a custodial sentence ranging between 16 to 30 years would an appropriate form of punishment.
    
45. By reasons of the foregoing, I sentence you, Aki Kairou to 18 years imprisonment with hard labour to be served in CIS, Buimo, less the period that you have spent in custody, being 1 year 2 months 3 days. The balance term of your sentence now stands at 16 years 9 months and 27 days. No term of your sentence is suspended.
    

Sentence

46. Having convicted you, Aki Kairou, of one count of murder under s 300 (1) (a) of the Criminal Code, you are now sentenced as follows:
    

Sentenced accordingly.

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