The State v Alois Lagu (2011) N4354

• Jurisdiction: Papua New Guinea
• Judge: Cannings, J.
• Judgment Date: 11 August 2011
• Docket Number: CR NO 1399 OF 2010
• Citation: (2011) N4354
• Court: National Court
• Year: 2011
• Judgement Number: N4354

Full Title: CR NO 1399 OF 2010; The State v Alois Lagu (2011) N4354

National Court: Cannings, J.

Judgment Delivered: 11 August 2011

N4354

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1399 OF 2010

THE STATE

V

ALOIS LAGU

Madang: Cannings J

2011: 3, 7 June, 3, 11 August

SENTENCE

CRIMINAL LAW – sentencing – murder, Criminal Code, Section 300(1)(a) – sentence after guilty plea – offender killed fellow villager by stabbing him with pocket knife – sentence of 20 years.

The offender pleaded guilty to murdering a fellow villager by stabbing him with a pocket knife once in the chest, while the deceased was at a family gathering. There was no apparent motive.

Held:

(1) The starting point for sentencing for this sort of murder (vicious attack, strong intent to do grievous bodily harm, weapon used) is 20 to 30 years imprisonment.

(2) There were a number of mitigating factors (only one stab wound, an unplanned attack, early guilty plea) but it was a vicious attack with a lethal weapon so the sentence should remain within the starting point range.

(3) A sentence of 20 years imprisonment was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789

Saperus Yalibakut v The State (2006) SC890

The State v Jacob Aku Matai (2011) N4256

SENTENCE

This was a judgment on sentence for murder.

Counsel

S Collins, for the State

J Mesa, for the offender

11 August, 2011

1. CANNINGS J: This is the decision on sentence for Alois Lagu, a 28-year-old man, who has pleaded guilty to murder and has been convicted of that offence under Section 300(1)(a) of the Criminal Code. The victim is a fellow villager, Thomas Ipsep. The offence was committed between 7.00 and 8.00 pm on 8 May 2010 at their village, Dimer No 1 in the North Coast area of Sumkar District, Madang Province. The victim was standing and listening to people speaking at a family gathering. The offender, who was drunk, walked past and swore at the group, for no apparent reason. There was no reaction from the group. Then the offender came back towards the group and on this occasion attacked the victim by stabbing him in the abdomen, killing him almost instantly. The offender did not intend to kill the deceased but did intend to cause him grievous bodily harm, hence a conviction for murder, not wilful murder, has been entered.

ANTECEDENTS

2. The offender has two prior convictions, one for possession of dangerous drugs and one for assault.

ALLOCUTUS

3. The offender was given the opportunity to address the court. He said:

I apologise to the Court, the Judge and the lawyers who have had to spend time on my case. I believe that Heavenly God will bless them in their work. I apologise to the deceased and his family, in particular to his wife and children, and to his brothers and sisters and their relatives. I apologise to God for what I did. I asked God for His mercy and forgiveness and I believe that He has forgiven me. I was brought up in a broken family. My father died when I was five years old. My mother died in June this year but I was in custody at the time and did not know about it at the time. Education was always a big problem for me because of problems with school fees and this led to me being imprisoned in 2001. I was involved with selling drugs, which I was forced to do because of the school fee problems. After all the struggle in my life I have made a decision to change my life and serve God by becoming a youth leader. I would like the court to consider also that after the incident of 8 May 2010 the deceased’s family burned down nine houses belonging to myself and my mother and my brothers and sisters; other property was also destroyed, including a trade store, cocoa fermentery, betel nut trees, chicken shed and 200 chickens. I am married with two children and all of this destruction has made life difficult for my family. My daughter died only a few months ago, while I was in custody, and this has caused me great pain and sorrow. I ask this court of mercy to give me a second chance in life and to put me on probation so that I can go back to the village and fix my background and attend to pastoral work in the village.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). I will take into account that there have been repercussions for the offender and his family, in that some of their property has been damaged. However, the details are vague and no independent verification has been provided. It is not a weighty mitigating factor. A good character reference has been provided by Francis Pius, Institutional Welfare Officer, at Beon Jail, and this also works in the offenders’ favour. As for other matters raised in allocutus, I cannot detect any significant mitigating matters. The offender alludes to having a difficult upbringing but nothing he has said about coming from a broken home or having a problem with school fees and education are of much assistance in explaining why he would have murdered a fellow villager. He has not said why he attacked the deceased. Nor has he claimed that the deceased had done or said anything that might have provoked him or provided some motive for what he did. The pre-sentence report refers to an allegation that the deceased shouted insulting words to the offender but the offender did not mention that in his allocutus and there is no evidence of it in the depositions. It does not amount to a mitigating factor. Another unverified claim in the pre-sentence report is that the offender’s people have paid K12,000.00 cash, plus foodstuff and pigs to the deceased’s relatives. The offender did not mention this in the allocutus so in the absence of evidence it cannot be regarded as a mitigating factor.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service.

Personal details of Alois Lagu

Age : 28

Origin : North Coast, Madang

Upbringing : Dimer No 1 village

Marital status : Married

Family : Parents deceased; he has 3 brothers and 3 sisters

Education : Grade 10

Employment : Some casual employment but nothing long term

Occupation : Villager

Health : Occasional stomach ailment, otherwise sound

Religion : Lutheran

Other aspects of the offender’s life

6. As I indicated earlier the report alludes to some matters that might have been significant if they had been verified: alleged conflicts between the offender and the deceased, alleged reprisal attacks on the offenders’ family’s property, alleged payment of compensation. But they are unverified and the information is coming from only the offender and his family. It is a one-sided report. The offender is said to be a law abiding person who socialises well and makes friends easily and that he is suitable for probation. The depositions, which include a number of statements by the deceased’s relatives, suggest exactly the opposite: he was a known troublemaker with a history of violence and a criminal record. I regard this pre-sentence report as unreliable.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Mesa submitted that the circumstances of this case – some aggravating factors as well as mitigating factors – bring it within category 2 of the Supreme Court murder sentencing guidelines from Manu Kovi v The State (2005) SC789. Although it was an unprovoked attack with a lethal weapon the sentence should not exceed 20 years imprisonment.

SUBMISSIONS BY THE STATE

8. Mr Collins agreed that this was a category 2 case according to the Kovi guidelines and that a sentence of 20 years would be appropriate.

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. I will apply the sentencing guidelines for murder in the leading Supreme Court case of Manu Kovi v The State (2005) SC789, which are set out in the following table:

SENTENCING GUIDELINES FOR MURDER

FROM SUPREME COURT’S DECISION IN MANU KOVI’S CASE

No Description Details Tariff

1 Plea – ordinary cases – No weapons used – little...