The State v James Peter Kenneth

• Jurisdiction: Papua New Guinea
• Judge: Numapo AJ
• Judgment Date: 07 June 2018
• Citation: (2018) N7338
• Court: National Court
• Year: 2018
• Judgement Number: N7338

Full : CR No 381 of 2017; The State v James Peter Kenneth (2018) N7338

National Court: Numapo AJ

Judgment Delivered: 7 June 2018

N7338

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 381 OF 2017

THE STATE

V

JAMES PETER KENNETH

Lae: Numapo AJ

2018: 4, 17, 20 April, 4 May & 7 June

CRIMINAL LAW – Particular offence – Murder – Guilty Plea – Domestic Violence – Some Degree of de facto provocation - Sentencing Principles – Appropriate Sentence – Sentencing Discretion – Aggravating & Mitigating factors – Extenuating circumstances – Sections 300 & 19 of Criminal Code

Held:

(i) Factual circumstances of this case does not place it under a category of worst case to attract a maximum penalty prescribed by law.

(ii) Sentencing guidelines only provide as a guide it does not take away the sentencing discretion of the court.

(iii) A sentence imposed by the court must reflect the purpose of sentencing such as deterrence, rehabilitation, restitution and retribution.

(iv) Homicide cases in domestic settings is becoming too prevalent that it calls for a longer custodial sentence.

(v) There was some degree of de facto provocation.

(vi) Prisoner sentenced to 18 years imprisonment.

Cases Cited:

Avia Aihi v The State (No.3) [1982] PNGLR 92

Goli Golu v The State [1979] PNGLR 653

Manu Kovi v The State (2005) SC 789

Simon Kama v The State (2004) SC 740

State v Lom [2012] PGNC 63; N4725

State v Mareva [2012] PGNC 44; N5220

State v Rende [2013] PGNC 44; N5220

State v Roy N5968 of 19 March 2015

State v Tuu N3706 of 17 March 2008

Ume v The State (2006) SC 836

Counsel:

J. Done, for the State

S. Katurowe, for the Defence

SENTENCE

7th June, 2018

1. NUMAPO AJ: This is a sentence on murder. The prisoner James Peter Kenneth pleaded guilty to one count of Murder contrary to section 300 (1) (a) of the Criminal Code Act. The facts to which the prisoner pleaded guilty to were that; on the 4th of July 2016 at the Lae Main Market the prisoner met the deceased Jenny Mapi Labu and had an argument with her over some marital issues. They both got on a PMV bus and went to Kamkumung. At Kamkumung Block 15 they fought. The prisoner stabbed the deceased twice on the chest and twice on the abdomen with a kitchen knife. The deceased died from excessive loss of blood due to the multiple wounds. The prisoner fled the scene and was at large until his apprehension on the 29th of April 2017.

A. THE CHARGE

2. Section 300 (1) (a) of the Criminal Code reads:

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 a person killed or to some other person;

Penalty: Subject to Section 19, imprisonment for life.

In his allocutus the prisoner apologized to the court and the relatives of the deceased.

B. APPROPRIATE SENTENCE

3. The maximum penalty provided under section 300 of the Criminal Code is life imprisonment. The court has a wider sentencing discretion to consider a lesser sentence by virtue of section 19 of the Criminal Code. Section 19 however, does not provide a range of lesser sentences for consideration and instead left it to the discretion of the court to decide on the appropriate lesser sentence.

4. The State conceded that the present case does not fall within the category of worst cases and therefore, should not attract the maximum penalty of life imprisonment. Maximum penalty is reserved for worst cases. See: Goli Golu v The State [1979] PNGLR 653 & Avia Aihi v The State (No.3) [1982] PNGLR 92. State submitted however, that a longer term of imprisonment should be imposed given the prevalence of the offence to serve as deterrence.

5. There are two (2) cases that set out some sentencing guidelines for Murder cases. The first case is that of Simon Kama v The State (2004) SC740 and the second case is that Manu Kovi v The State (2005) SC789. The Supreme Court in these two (2) cases outlined the sentencing tariffs on murder in the following terms:

1. Sentencing Guidelines in Simon Kama’s case:

(a) Category 1: Guilty Plea – No aggravating factors: 12 – 16 years imprisonment.

(b) Category 2: Guilty Plea – Aggravating factors other than use of firearms and the commission of another serious offence: 17 – 30 years.

(c) Category 3: Guilty Plea – Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting another serious offence: 31 years to life imprisonment.

(d) Category 4: Not Guilty Plea – No aggravating factors: 17 – 21 years.

(e) Category 5: Not Guilty Plea – Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting to commit another serious offence: 22 – 40 years.

(f) Category 6: Not Guilty Plea – Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting to commit another serious offence: 41 – life imprisonment.

2. Sentencing Guidelines in Manu Kovi’s case:

(a) Category 1: In plea case where there are mitigating factors with no aggravating factors i.e., no weapons used, minimum force used, little or no planning and the absence of strong intent to do GBH: 12 – 15 years imprisonment.

(b) Category 2: In a trial or plea where there are mitigating factors as well as aggravating factors, i.e., weapon used, some element of viciousness, some pre-planning and no strong intent to do GBH: 16 – 20 years imprisonment.

(c) Category 3: In a trial or plea where there is special aggravating factors and the mitigating factors are reduced in weight or rendered insignificant by gravity of offence, i.e., dangerous or offensive weapon used e.g., gun or axe, vicious attack, pre-planned attack, strong desire to do GBH and other offences of violence committed: 20 – 30 years imprisonment.

(d) Category 4: Worst case in a trial or plea where there is special aggravating features, no extenuating circumstances, and no mitigating factors or rendered insignificant by gravity of the offence i.e., pre-meditated attack, brutal killing in cold blood, killing innocent or harmless person, killing in the course of committing another serious offence and complete disregard of a human life: Life Sentence.

6. There are some slight differences in terms of years between the guidelines under Simon Kama and those under Manu Kovi but in general it highlighted the increases in sentences imposed on murder over the years. The Manu Kovi guideline is a recent decision of the Supreme Court and I intend to use that as a guide in the present case.

C. AGGRAVATING AND MITIGATING FACTORS

7. Each case must be considered on its own merits and in order to place the present case under the appropriate category of the sentencing guidelines the court must take into account the relevant factors such as the aggravating and mitigating factors, extenuating circumstances, gravity of the offence and any other factors or circumstances peculiar to the case. The prevalence of the offence is also a consideration.

8. In the case of Ume v The State (2006) SC 836 the Supreme Court described the aggravating factors, extenuating circumstances and mitigating factors as follows:

“The consideration of aggravating factors is of course not new. They include pre-planning, degree of pre-mediation, weapons (if any) used, multiplicity of attack or injuries inflicted, any inhuman acts such as torture or cutting up the body performed after the killing, and so on.

As to extenuating circumstances, the concept is also not new. They relate to the circumstances of the commission of the offence itself; factors which reduce the seriousness of the crime. They are relevant factors for purpose of sentencing in all criminal offences. Examples of extenuating circumstances includes de-facto provocation, duress or coercion, the degree of and extent of the offender’s participation, the offender’s medical condition such as psychopathic personality, offender’s lack of sophistication or traditional customs, practices and beliefs which influence the offender to act in the way he did.

As for mitigating factors, relevant factors to be considered include the offender’s youth, good personal and family background, personal antecedents such as good character, education, employment and Christian background; first time offender, guilty plea; early confession to police; remorse; co-operation with police; poor health and restitution or compensation.”

9. I now turn to the aggravating and mitigating factors of the present case.

(a) Aggravating Factors

(i) This was a vicious attack.

(ii) The deceased suffered multiple stab wounds to her chest and abdomen.

(iii) There was a strong intent to do grievous bodily harm.

(iv) An offensive weapon was used.

(v) The argument between the offender and the deceased went on for several hours in different locations before she was killed.

(vi) The prisoner escaped after committing the offence and was apprehended a year later.

(vii)...