The State v Kevin Wakore (2007) N3222

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 August 2007
• Citation: (2007) N3222
• Docket Number: CR NO 378 0F 2003
• Court: National Court
• Year: 2007
• Judgement Number: N3222

Full Title: CR NO 378 0F 2003; The State v Kevin Wakore (2007) N3222

National Court: Cannings J

Judgment Delivered: 16 August 2007

N3222

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 378 0F 2003

THE STATE

V

KEVIN WAKORE

Kimbe: Cannings J

2007: 6, 20, 25 July,

16 August

CRIMINAL LAW – sentence – murder – victim killed in village setting, clan dispute over alleged adultery, offender in a group fight – guilty plea – sentence of 12 years.

A man pleaded guilty to murder. There was a dispute between clans in a village after a man was alleged to have committed adultery with another man’s wife. Two clans had a confrontation and in the course of it the offender shot dead the victim.

Held:

(1) The starting point for sentencing for this sort of murder is 16 to 20 years imprisonment.

(2) Mitigating factors are: de facto provocation; co-operated with police; compensation, peace and reconciliation; pleaded guilty; first-time offender; taking the rap.

(3) Aggravating factors are: no intervening cause of death; deceased had no pre-existing, susceptible condition; death was a foreseeable consequence of the assault; offender’s role in the killing was not minor.

(4) A sentence of 12 years was imposed. The pre-sentence period in custody was deducted and four years of the sentence was suspended.

Cases Cited:

Manu Kovi v The State (2005) SC789

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

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

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

B Tanewan, for the offender

16 August, 2007

SENTENCE

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.

2. The offender and the victim are from Pangalu village in the Talasea area of West New Britain Province. Late in the afternoon of 5 October 2002 the offender, Kevin Wakore, in company with a number of his relatives went to the premises of the deceased’s brother, Andrew Waluka. They were demanding compensation as it was alleged that Andrew Waluka had committed adultery with the wife of one of the offender’s clansmen, Ben Gala. The offender’s group was armed with bushknives and a homemade gun. There was a confrontation between Ben and Robin. Ben pulled a gun from Robin and while they were struggling a member of Kevin’s group cut Robin on the hand. Robin fell and he was cut again on the legs. Kevin got the gun and shot Robin in the chest. Kevin’s group then ran away. Robin was rushed to the Bitokara Health Centre but died on the way. A post-mortem shows that he died due to a gunshot wound to the chest, which caused the collapse of his right lung. When shooting Robin, Kevin intended to do him grievous bodily harm.

3. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted Kevin Wakore of murder.

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

It is true that I committed this offence and I am the only one who caused the deceased’s death. The others [several other men have been charged over the same death] were not involved. However, this trouble did not occur for no reason. Andrew committed adultery and that was the cause of the whole problem. When we went to the deceased’s premises I was not armed. The gun that the deceased was shot with was his own. I only got the gun when another person cut Robin on the hand. I did not check whether it was loaded. I only wanted to threaten him. I don’t know how the gun fired.

OTHER MATTERS OF FACT

6. 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 SCRA No 52 of 2005, 27.04.06).

7. He co-operated with the police, made admissions in his police interview and signed a confessional statement. All of those things happened within a week after the incident.

8. His claim that he was not armed when he went to make the compensation demand is borne out by the records of interview of the others involved. It was indeed the deceased’s own gun that the offender shot him with. It also appears that the people that the offender’s group was fighting with were armed more heavily than his own group.

PRE-SENTENCE REPORT

9. To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the report follows:

KEVIN WAKORE: male, aged about 30 years.

Residence: Pangalu.

Family background: mother and father from Talasea – father is deceased; mother alive – Kevin is the third-born in a family of six.

Marital status: married with five children – stable marriage.

Education: Grade 6, Pangalu Primary School.

Employment: worked for a short time with Lotogam Plantation as a harvester, while he was on bail; lost the job when he went back into custody.

Health: OK.

Financial status: earns income from sale of copra.

Plans: look after his family and his blocks.

Victim’s family’s attitude: the deceased’s father, Waluka Gare, has received K10,000.00 and is satisfied with that – another of his sons was shot dead by police when the fighting between the offender’s and deceased’s clans was still going on – there was a payback killing of one of the offender’s clan too – despite these problems there has been reconciliation between the clans.

Offender’s family’s attitude: supportive – his wife and other members of the family are concerned about the welfare of his five children if the offender spends a long time in jail.

Attitude of community: prior to the offence his behavioural record in the local community was good – there was a big reconciliation ceremony in 2004 – the two clans involved have made peace though some underlying tension remains – since the incident took place, the two clans – Pagonunu (deceased’s clan) and Tabekewavo (offender’s clan) – have intermarried, which is significant as the exchange of women in the Talasea area is a sign of peace.

Assessment: not a threat to the community – well regarded – low risk of re-offending.

Recommendation: suitable for probation, subject to strict conditions.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mr Tanewan urged the court to consider all the circumstances surrounding commission of the offence: the reason it was committed, how the death actually occurred and what has happened since. There are many mitigating factors in those circumstances, which warrant a sentence of around 15 years, he submitted.

SUBMISSIONS BY THE STATE

11. Mr Popeu agreed that there were a number of mitigating factors, particularly arising from the peace and reconciliation process that has occurred. Nonetheless it was a very serious killing and a firearm was involved, warranting a sentence in the range of 20 to 25 years imprisonment.

DECISION MAKING PROCESS

12. 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 other sentences have been imposed recently in West New Britain for equivalent offences?

· step 4: what are the considerations that should be taken into account in determining the head sentence, in terms of years; and what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. 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?

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

TABLE 1: SENTENCING GUIDELINES

FOR MURDER DERIVED 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...