The State v Jacob Aku Matai (2011) N4256

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 April 2011
• Citation: (2011) N4256
• Docket Number: CR NO 1543 OF 2010
• Court: National Court
• Year: 2011
• Judgement Number: N4256

Full Title: CR NO 1543 OF 2010; The State v Jacob Aku Matai (2011) N4256

National Court: Cannings J

Judgment Delivered: 21 April 2011

N4256

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1543 OF 2010

THE STATE

V

JACOB AKU MATAI

Madang: Cannings J

2011: 21, 23 March, 21 April

SENTENCE

CRIMINAL LAW – sentencing – murder, Criminal Code, Section 300(1)(a) – sentence after guilty plea – offender killed his brother-in-law by cutting him with bushknife – sentence of 22 years.

The offender pleaded guilty to murdering his brother-in-law by cutting him with a bushknife several times on various parts of his body, while the deceased was working in a plantation. It was a vicious attack, arising out of a long running tension between the offender and the deceased.

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 (eg long running tension between the offender and the deceased, some element of de facto provocation at time of incident, guilty plea) but the viciousness of the attack and the use of the bushknife demanded a heavy sentence.

(3) A sentence of 22 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 Julius Kembu CR No 288/2009, 23.04.09

The State v David Solomon Lingen CR No 1292/2009, 20.11.09

SENTENCE

This was a judgment on sentence for murder.

Counsel

A Kupmain, for the State

M Mwawesi, for the offender

21 April, 2011

1. CANNINGS J: This is the decision on sentence for Jacob Aku Matai, a 30-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 his 28-year-old brother-in-law, Manuel Rebis. The offence was committed in the late afternoon of Sunday 23 May 2010 in a coconut plantation at Siar village, 10 km from Madang, where both the offender and the deceased lived. The offender approached the deceased while he was with his children collecting coconuts and cut him on his neck, head and other parts of the body with a long bushknife. The deceased died instantly. The offender did not intend to kill the deceased but did intend to cause him grievous bodily harm.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

I killed my brother-in-law because he caused my sister to bear him six children but he did not look after her or the children and I was always called upon to care for them. He used to smoke marijuana and go around with other women. He got another woman pregnant and my sister claimed compensation in the Village Court but this did not solve the problem. He did not build a house for his family and used to leave them for long periods and then come back. He did not pay for his children’s school fees. On the day of the incident I found him in my coconut block with his children and when I questioned him why he was not in his own block he reached for his bushknife and wanted to attack me. So I cut him. I did not mean to kill him. I just did what I did after many years of frustration. I know I am wrong and I apologise for what I did. I ask for a non-custodial sentence so that I can look after my own children and continue to look after my brother-in-law’s children.

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 the long running tension between the offender and the deceased and I accept that there was some element of de facto provocation at the time of incident due to the deceased reaching for his bushknife and the offender’s belief that he was about to be attacked by the deceased.

PRE-SENTENCE REPORT

5. Jacob Aku Matai is 34 years old. He has lived all of his life at Siar. He is of mixed Madang-Morobe parentage and maintains close ties with his father’s village of Sio in the Wasu area of Morobe Province. His father died in 1991. He is not married but has two adopted children and has also assisted his sister look after her six children. He has a grade 10 education and has never been formally employed. His health is sound. He is a subsistence farmer and villager. He does not have any history of violence and is regarded in the village as an introvert. There has been talk of compensation being paid by his relatives to those of the deceased but no firm plans have been made. The deceased’s elder brother says that the deceased’s family want to see the offender punished for the brutality he inflicted on the deceased. They support a lengthy custodial sentence. The report concludes that the offender may be suitable for probation after serving some period in custody.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Mwawesi 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 there was an element of viciousness in the offender’s actions the sentence should not exceed 20 years imprisonment.

SUBMISSIONS BY THE STATE

7. Mr Kupmain did not agree that this was a category 2 case. He submitted that because of the viciousness of the attack, which showed signs of pre-planning, it was a very serious case – a cold-blooded killing – which brought it within category 4 of the Kovi guidelines. Without the guilty plea, a sentence of life imprisonment would be warranted. He conceded, however, that because of the guilty plea a lengthy sentence in terms of years should be imposed.

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. 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 or no 12-15 years
mitigating factors – no pre-planning – minimum force used
aggravating factors. – absence of strong intent to do
grievous bodily harm.

2 Trial or plea – mitigating No strong intent to do grievous 16-20 years
factors with aggravating bodily harm – weapons used –
factors. some pre-planning – some element
of viciousness.

3 Trial or plea – special Pre-planned – vicious attack – 20-30 years
aggravating factors – strong desire to do grievous bodily
mitigating factors reduced in harm – dangerous or offensive
weight or rendered weapons used, eg gun, axe – other
insignificant by gravity of offences of violence committed.
offence.

4 Worst case – trial or plea – Premeditated attack – brutal killing, Life
special aggravating factors – in cold blood – killing of innocent, imprisonment
no extenuating circumstances harmless person – killing in the
– no mitigating factors, or course of committing another
mitigating factors rendered serious offence – complete
completely insignificant by disregard for human life.
gravity of offences.

11. I do not accept Mr Mwawesi’s submission that this is a category 2 case. The post-mortem report and the photos taken by the police photographer at the crime scene (which form part of the depositions considered by the court) show that there was a strong desire to do grievous bodily harm with an offensive weapon. I do not uphold Mr Kupmain’s submission that it was a premeditated attack or a cold-blooded killing. I conclude that this is a category 3 case. Therefore the starting point range is 20 to 30 years.

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

12. Two recent cases I have decided provide useful precedents. In the Kimbe case of The State v Julius Kembu CR No 288/2009, 23.04.09 the offender pleaded guilty to the murder of a man who he believed had threatened his...