The State v Charles Rava Pake (2007) N5051

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 August 2007
• Citation: (2007) N5051
• Docket Number: CR NO 315 0F 2007
• Court: National Court
• Year: 2007
• Judgement Number: N5051

Full Title: CR NO 315 0F 2007; The State v Charles Rava Pake (2007) N5051

National Court: Cannings J

Judgment Delivered: 24 August 2007

N5051

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 315 0F 2007

THE STATE

V

CHARLES RAVA PAKE

Kimbe: Cannings J

2007: 10 July, 7, 16, 24 August

CRIMINAL LAW – sentence – murder – offender killed victim by suddenly slashing him with bushknife – vicious, surprise attack on innocent, unarmed man – guilty plea.

A man pleaded guilty to murder. The offender approached a group of friends who were sitting down telling stories in a village setting. He suddenly attacked one of his friends with a bushknife, inflicting a fatal wound to his neck.

Held:

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

(2) Mitigating factors are: only one attacker; co-operated with police; compensation, peace and reconciliation; pleaded guilty; first-time offender.

(3) A sentence of 20 years 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

Simon Kama v The State (2004) SC740

The State v David Yakuye Daniel (2005) N2890

The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868

The State v John Kanua Siune and Kenneth Kunda Siune CR Nos 384 & 385 of 2003, 21.12.06

The State v Kevin Wakore CR 378/2003, 16.08.07

The State v Sebastian Justin Kelly CR 75/2001, 20.05.05

SENTENCE

This was a judgment on sentence for murder.

Counsel

F Popeu, for the State

O Oiveka, for the offender

24th August, 2007

1. CANNINGS J: This is a decision on sentence for a man who pleaded guilty to one count of murder arising from the following facts. On 18 December 2006 the offender, Charles Rava Pake, a 25-year-old man from Buluwara village in the Talasea area of West New Britain Province, left his village and went to Volopai village, where the deceased, Henry Gambu, lived. Henry was a young man aged in his early 20s. Henry was sitting near the main road with two of his friends, telling stories. Charles approached them and asked for lime. They told him they had none and pointed him in the direction of someone’s house where he could buy lime. Charles left that group, walked in the direction of the house the group had indicated, then returned five minutes later with a bushknife. He walked to where Henry was sitting. Charles was smiling and the young men sitting with Henry thought that Charles wanted to sit with them, so they shifted slightly to give him space to sit down. When Charles came near Henry, he suddenly lifted his bushknife, cut Henry once on the neck and ran off. The others rushed to Henry’s aid and took him to Kimbe General Hospital but he died on the way. The post-mortem report shows that Henry died of cardio-respiratory arrest and cervical spine fracture. He had a deep lacerated knife wound to the back of the neck. Charles did not intend to kill Henry but intended to do him grievous bodily harm.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender said:

This is my first time to be in court. Henry is my cousin-brother. We have paid compensation. Henry had done some bad things to my sister. He also said some bad things about me. I did not mean to kill him and when he died I was sorry. On the same day, Henry’s relatives chopped my father and he is still injured from that attack. We have agreed that there will be a reconciliation ceremony in September. Please have mercy on me.

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). He co-operated with the police and made admissions in his police interview. He said that the reason he attacked Henry was that he was doing bad things to his sisters.

PRE-SENTENCE REPORT

5. I received a pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

CHARLES RAVA PAKE: male, aged 25.

Residence: Buluwara.

Family background: mother and father from Buluwara – Charles is the fourth-born in a family of six.

Marital status: single.

Education: Grade 3, Walupai Primary School.

Employment: no formal employment.

Health: OK – no clearly apparent mental illness.

Financial status: earns income from sale of cocoa.

Plans: run a mini-trade store – look after his younger brothers and sisters who are still at school – change his life and avoid all trouble.

Offender’s family’s attitude: father and mother supportive – Charles had problems as a child, eg could not talk until five years old – slow learner at school – the family has already suffered due to reprisals by deceased’s relatives, eg Charles’ father was chopped and family properties destroyed.

Victim’s family’s attitude: they acknowledge receipt of compensation of K7,792.00 – there is still tension – they do not want more compensation; just want to see the offender given a long prison term.

Attitude of community: prior to the offence his behavioural record in the local community was not good – suggestions that his behavioural disorder is due to marijuana consumption – a lot or problems have developed between the two villages involved but this is settling down.

Assessment: could be a threat to the community.

Recommendation: not suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Oiveka highlighted the guilty plea, that the offender has no criminal record, first offender and that some compensation has been paid. Twenty years would be an appropriate sentence, he submitted.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that though it was only one swing of the bushknife, it was a lethal weapon and the attack was on a vulnerable part of the body, just as deadly as a frenzied attack. The sentence should be 25 to 30 years, he submitted.

DECISION MAKING PROCESS

8. 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?

9. 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?

10. The Supreme Court has in recent times laid down sentencing guidelines for murder in two cases, Simon Kama v The State (2004) SC740 and Manu Kovi v The State (2005) SC789. As Manu Kovi’s case is the more recent decision, I will follow it. Its starting point ranges are summarised in the table below.

SENTENCING GUIDELINES FOR MURDER: KOVI’S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life.	Life imprisonment

11. I agree with Mr Popeu’s submission that as this was a vicious attack, exhibiting a strong desire to do grievous bodily harm, the case falls within category 3. The starting point is 20 to 30 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. Before I fix a sentence, I will consider other murder sentences I have handed down recently in West New Britain. These cases are shown in table 2 below.

SENTENCES FOR MURDER, WEST NEW BRITAIN, 2005-2007

No	Case	Details	Sentence
1	The State v Sebastian Justin Kelly CR 75/2001, 20.05.05	Guilty plea – vicious attack on a relative who was asleep and unarmed –...