The State v Charlie Langu (No 2) (2004) N2652

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 August 2004
• Citation: (2004) N2652
• Court: National Court
• Year: 2004
• Judgement Number: N2652

Full Title: The State v Charlie Langu (No 2) (2004) N2652

National Court: Cannings J

Judgment Delivered: 26 August 2004

1 Criminal Law—indictable offence—Criminal Code, Division V.3—Homicide—murder—s300(1)(b), person kills another person—death caused by means of an act done in the prosecution of an unlawful purpose and of such a nature as to be likely to endanger human life—maximum penalty of imprisonment for life—decision–making process—factors relevant to sentence—not guilty plea—aggravating factors, other than use of firearms—assessment of sentence—decision on sentence.

2 The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98, Lawrence Simbe v The State [1994] PNGLR 38, Doreen Liprin v The State (2001) SC673, The State v Raphael Kimba Aki (No 2) (2001) N2082, Eric Vele v The State (2002) N2252, Simon Kama v The State (2004) SC740, The State v Charlie Langu (No 1) (2004) N2651 referred to

N2652

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 628 0F 2003

THE STATE

V

CHARLIE LANGU (No 2)

WEWAK : CANNINGS J

26 AUGUST 2004

Criminal Law – indictable offence – Criminal Code, Division V.3, Homicide – murder – Section 300(1)(b), person kills another person – death caused by means of an act done in the prosecution of an unlawful purpose and of such a nature as to be likely to endanger human life – maximum penalty of imprisonment for life – decision-making process – factors relevant to sentence – not guilty plea – aggravating factors, other than use of firearms – assessment of sentence – decision on sentence.

Cases cited

The State v Eddy Kava Laura (No 2) [1988-89] PNGLR 98

Lawrence Simbe v The State [1994] PNGLR 38

Doreen Liprin v The State (2001) SC673

The State v Raphael Kimba Aki (No 2) (2001) N2082

Eric Vele v The State (2002) N2252

Simon Kama v The State (2004) SC740

The State v Charlie Langu (No 1) (2004) N2651

Mr J Wala for the State

Mr L Siminji for the accused

CANNINGS J:

INTRODUCTION

This is a decision on sentence. The prisoner, Charlie Langu, was earlier today convicted under Section 300(1)(b) of the Criminal Code of the murder on 6 November 2002 of Rita Sora at Samgit in the East Sepik Province. (The State v Charlie Langu (No 1) N2651.)

PENALTY REGIME

The maximum penalty for murder is imprisonment for life. Murder is distinguished from the crime of wilful murder. Wilful murder is an offence under Section 299 of the Criminal Code. It is committed when a person unlawfully kills another person, intending to cause his death or that of some other person. A person who commits wilful murder is liable to be sentenced to death.

In the present case the prisoner is liable to imprisonment for life. That maximum penalty is, however, subject to Sections 19(1)(a), 19(1)(d) and 19(6). Those provisions confer discretion on the Court to sentence the prisoner to a lesser term or to suspend part or all of the sentence.

DECISION-MAKING PROCESS

In making a decision on sentence I adopted the following decision-making process:

1 the prisoner’s antecedents are considered;

2 the prisoner’s statement on allocutus is considered;

3 the submissions of counsel for the prisoner are considered;

4 the submissions of counsel for the State are considered;

5 the sentencing guidelines for murder cases are identified;

6 those guidelines are applied to this case and a head sentence indicated;

7 consideration is given to whether part or all of the sentence should be suspended; and

8 the formal decision on sentence is summarised.

ANTECEDENTS

Mr Wala, for the State, suggested that the prisoner had two prior convictions for relatively minor offences. But that was not conceded by Mr Siminji, for the prisoner. Mr Wala could not present satisfactory proof of prior convictions. I therefore dealt with the prisoner as if he were a first time offender.

ALLOCUTUS

The prisoner apologised to the Court for the death of Rita Sora. He said it was the first time for him to stand in the eyes of the Court. He asked the Court to consider imposing some sentence other than imprisonment so he could go back home and sort things out.

SUBMISSIONS FOR THE PRISONER

Mr Siminji pointed out that the prisoner is aged 28. He is married. Two of his three children have died. His wife still lives in the village, in Samgit. He attends the Assemblies of God Church. Prior to his incarceration over the death of Rita Sora, he had been living an ordinary village life, with no formal employment. He has been in custody awaiting trial for a substantial period, more than one year and nine months.

The maximum penalty of life imprisonment should be reserved for the worst kind of murder. This case does not fall into that category. Each case must be considered on its merits, as highlighted in Lawrence Simbe v The State ([1994] PNGLR 38, Supreme Court, Woods J, Konilio J, Sevua J). But it is useful to have regard to sentencing guidelines initially laid down in The State v Eddy Kava Laura (No 2) ([1988-89] PNGLR 98, National Court, Kidu CJ) and modified by cases such as The State v Raphael Kimba Aki (No 2) ((2001) N2082, National Court, Kandakasi J).

In Aki’s case Kandakasi J suggested that the guidelines should be as follows:

(a) on a guilty plea, with no special aggravating factors: 10 years;

(b) on a guilty plea, with mitigating factors such as the youthfulness or advanced age of the accused: less than 10 years;

(c) on a not guilty plea, with aggravating factors: 12 to 14 years or more.

In Aki the murder was committed during the course of a break-in of the victim’s house. The penalty was 12 years. Mr Siminji submitted that in the present case, the facts were different but the seriousness of the offence was similar. The victim was not involved in the first fight at the mediation session at Nindiko. She was unarmed when she was speared. A term of imprisonment in the order of 12 years is appropriate.

SUBMISSIONS FOR THE STATE

In response, Mr Wala, for the State, asserted that the guidelines in the above cases have been overtaken by the recent decision of the Supreme Court in Simon Kama v The State ((2004) SC740, Sevua J, Kandakasi J, Lenalia J.)

The Court stated, at page 22:

On the court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) and Simbe v The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d) On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence, [that] may warrant a sentence lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons.

Mr Wala submitted that the features of the present case were that the prisoner was part of a group that was armed with dangerous weapons; that the victim was unarmed; that the victim was...