The State v Jimmy Ketu (No 2) (2007) N3394

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 02 October 2007
• Citation: (2007) N3394
• Docket Number: CR NO. 1511 OF 2006
• Court: National Court
• Year: 2007
• Judgement Number: N3394

Full Title: CR NO. 1511 OF 2006; The State v Jimmy Ketu (No 2) (2007) N3394

National Court: Kandakasi, J

Judgment Delivered: 2 October 2007

N3394

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1511 OF 2006

THE STATE

V

JIMMY KETU (No.2)

Tabubil: Kandakasi, J.

2006: 17th November

2007: 2nd October

DECISION ON SENTENCE

CRIMINAL LAW- Sentence – Murder – Conviction after trial – Use of bush knife to wound head and hands resulting in death - Customary compensation paid – First time offender – Not worse case of murder - Sentence of 22 years imposed.

CRIMINAL LAW – PRACTICE AND PROCEDURE – Appropriate sentencing guideline – Subsequent Supreme Court decision in obiter dictum varying earlier decision of the Supreme Court – Court obliged to follow guidelines set by decision of the Supreme Court directly on point and may take into account the obiter dictum observations but not bound to follow.

Cases Cited:

Joseph Enn v The State (2004) SC738.

Manu Kovi v. The State (2005) SC 789.

The State v. Vincent Simbago (26/09/05) N2954

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

Lawrence Simbe v. The State [1994] PNGLR 38.

Simon Kama v. The State, (2004) SC740.

Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (2004) SC741.

Kepa Wanege v. The State (2004) SC742.

The State v. Kiri Kirihau Harisu (2006) N3168

The State v. Jimmy Morgan (2001) N2171

Counsel:

D. Mark, for the State.

P. Kapi, for the Prisoner.

17 October, 2007

1. KANDAKASI J: This Court found you guilty on one charge of murder contrary to s.300 (1) (a) of the Criminal Code after a two days trial in November of last year. The delay in coming to announce this Court’s decision is due mainly to circuit arrangements.

The Relevant Facts

2. The relevant facts are set out in the decision on your verdict handed down on 17th November 2006. For the purposes of sentencing, the facts briefly are that, on 8th November 2005, some time between 6:00 and 8:00 pm you were under your house at Menumgrup, Ningerum, in this Province, drinking beer with a brother of yours, Ivan. Ivan came with eight cans of beer. Out of the eight cans of beer, you drank four of them. That was in addition to four cans of beer you had earlier drank. At the time, there were a lot of other boys also consuming alcohol. While you were under your house drinking your beer, you heard your younger brother, Gordon, fighting with his two wives up in the house. You also heard him telling his wives to pack up and leave the house.

3. You went up to the house and tried to stop your brother from fighting his wives and force them to pack up and leave. Your brother did not accept your intervention. He became angry and threw a punch at you and you ended up in an argument and or a fight with your brother. Your brother chased you and you ran into your neighbour, Simon Hun’s house. While you were at your neighbour’s house, your brother challenged you to a fight and called you a woman. That made you angry. You therefore, armed yourself with a bush knife and returned to your house where Gordon was, with a view to cutting and causing harm to your brother. As you entered the house through the door, you saw Gordon and Ivan and swung the bush knife to cut Gordon. However, Ivan managed to get Gordon out of the house.

4. Soon after that, a Orowa Singu who had been living in your house for a short while with the deceased at your invitation for them to help build your house, came to where you were and you wildly swung the bush knife at him. Fortunately, he managed to jump onto the beam of the house and escaped any injuries. Not long and the deceased turned up and you cut him on his left arm and head. Soon thereafter, the people who were there, rushed the deceased to the hospital for appropriate treatment. Unfortunately, the next day, the hospital pronounced the death of the deceased.

5. The medical evidence states that, the deceased sustained serious bush knife wound injuries to his head, an injury to his left wrist and a relatively superficial injury to his shoulder and died from massive blunt head trauma. The injury to the head was the most serious, described as “massive right-sided frontal-temporal-parietal scalp laceration with underlying linear skull fracture measuring at least 15 cm in length” with “disrupted brain matter”. There was bleeding into the brain. The medical doctors tried their very best to prevent the bleeding and save the deceased without much luck.

Allocutus

6. After having found you guilty on the charge of murder, the Court asked you to address it on sentence. You decided to leave it all to your lawyer. So the Court did not hear directly from you regarding your sentence.

7. Your lawyer informed the Court that, you were then thirty years old, now about thirty one. Education wise, you have reached grade ten high school education level. At the time of committing the offence, you were employed as a security guard. You are married with two children. You come from Menumgrup Village, Ningerum District of this Province. You are the seventh born in a family of eight brothers and four sisters. Your parents are still alive and live a subsistence style dwelling. Following your commission of the offence police arrested you and kept you in custody for ten months before being released on a cash bail of K1,000.00 and surety of K500.00.

8. Further, your lawyer informed the Court that you and your relatives paid customary compensation of K41,000.00 over to the deceased relatives. You personally contributed K10,000.00 of the K41,000.00 compensation.

Submissions

9. Your lawyer then proceeded to make submissions on your behalf. In your mitigation, he urged the Court to note that, you have no prior convictions. This means, you have not been in trouble with the law before. Hence, this is your first ever offence. Your lawyer also urged the Court to note that, this was not a pre-planned killing. He then drew to the Court’s attention to decisions of the Supreme Court in Joseph Enn v The State,

i (01/04/04) SC738.

i1 and Manu Kovi v. The State,

ii (31/05/05) SC 789.

ii2 and submitted that your case falls in the third category under the Manu Kovi case. That category attracts a sentence between 20 and 30 years. Your lawyer submitted that the Court should impose a sentence that falls in that range.

10. The State pointed out that, your conviction came after a trial and that the sentence should reflect that fact. Otherwise, counsel for the State agreed with the submissions of your lawyer on the relevant case law and sentencing range.

11. Given these submissions, the Court now needs to determine an appropriate sentence for you. In order to properly do that, it is necessary to have regard to the offence you committed and the penalty prescribed by Parliament and what the Supreme Court has said about sentencing in murder cases. Accordingly, we turn to a consideration of the offence, sentencing guidelines, sentencing trend and tariffs.

The Offence, Sentencing Guidelines, Trends and Tariffs

12. Section 300 (1) of the Criminal Code prescribes the offence of murder and its penalty of life imprisonment, subject to s. 19 of the Code. In the exercise of the discretion vested in the Courts by s. 19, the Courts have been imposing sentences lower than life imprisonment in most cases. As I noted elsewhere,

iii As in The State v. Vincent Simbago (26/09/05) N2954, per Kandakasi J.

iii3 the decision in The State v. Laura (No. 2),

iv [1988-89] PNGLR 98.

iv4 initially outlined some guidelines for sentencing in murder cases. Later, the Supreme Court, in Lawrance Simbe v. The State,

v [1994] PNGLR 38.

v5 endorsed and improved on those guidelines.

13. Recently, the Supreme Court in its judgment in Simon Kama v. The State,

vi (01/04/04) SC740.

vi6 reviewed those guidelines and sentencing trends in murder cases. It then made the point that, Parliament having considered all things, provided for three categories of homicide cases under the Code. Wilful murder under s.299 for a person killing with an intention to kill the deceased or another person, murder under s. 300 for a person killing another person out of an intention to do grievous bodily harm. Then finally, killings without either an intention to kill or an intention to do grievous bodily harm, as manslaughter under s. 302. As such, it was not right for the courts to further categorize homicide cases. It then proceeded to review the approach to sentencing and the suggested tariffs and said:

“… 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...