The State v Kiri Kirihau Harisu (2006) N3168

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 October 2006
• Citation: (2006) N3168
• Docket Number: CR NO. 2025 of 2005
• Court: National Court
• Year: 2006
• Judgement Number: N3168

Full Title: CR NO. 2025 of 2005; The State v Kiri Kirihau Harisu (2006) N3168

National Court: Kandakasi, J

Judgment Delivered: 24 October 2006

N3168

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 2025 of 2005

THE STATE

-V-

KIRI KIRIHAU HARISU

Kerema: Kandakasi, J.

2006: 5th and 24th October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Murder – Deceased killed prisoner’s father – Prisoner trying to shake hands with deceased – Deceased refusing and threatening to kill prisoner – Deceased had earlier killed prisoner’s father - Prisoner picking up axe that was there and cut the deceased twice with intend to stop deceased from attacking him – Deceased died from loss of blood - Guilty plea – First time offender – Expression of remorse without tangible evidence of - Sentence of 22 years imposed - Criminal Code Sections 300 and 19.

Cases cited:

Manu Kovi v. The State (31/05/05) SC 789.

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

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

The State v. Raphael Kimba Aki (N0.2) (28/03/01) N2082.

Simon Kama v. The State (2004) SC740.

Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741.

Kepa Wanege v. The State (01/04/04) SC742.

The State v. Charlie Langu (No 2) (26/08/04) N2652.

Lawrance Simbe v The State [1994] PNGLR 38.

Rudy Yekat v. The State (22/11/01) SC665.

Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.

The State v. Lucas Yovura (29/04/03) N2366.

Counsels:

Mr. D. Mark, for the State.

Mr. P. Kapi, for the Prisoner.

24 October, 2006

1. KANDAKASI J: On the 5th of this instant, this Court convicted you on your guilty plea to a charge of murder contrary to Section 300 of the Criminal Code. After receiving submissions from your lawyer and that of the State on the same day, the Court reserved its decision. Here now is the Court’s decision.

The Facts

2. On 1 January 2005, as you returned from what appears to be a new year’s party, you passed through a Lovakaea Harro’s (now deceased) house. This was in Pukari, in the Malalaua District of this Province. As you came close to the deceased’s house, you decided to approach the deceased with the intention to shake his hands. You offered to shake the deceased’s hands but he refused. The deceased then threatened to kill you saying “like I killed your father, I will do the same to you.” You then saw an axe from the deceased’s house, which you took and started chasing him with it down to the beach and the deceased ran into a nearby house for protection. On seeing that, you threw the axe at the deceased but it failed to reach any part of the deceased and fell to the ground. Instead of remaining in the house, the deceased jumped down, picked up the axe and charged toward you. You grabbed him and both of you struggled to over power the other and fell down on the ground in the process. At that point you managed to get hold of the axe and cut him twice, the first one on his knee and the second from his face down to his jaw area. The deceased eventually died from the injuries you inflicted upon him.

Allocutus and Submissions

3. In your address on sentence, you said sorry for what you have done and added that this is your first ever offence. You also reiterated that the deceased caused you to do what you did by reminding you that he killed your father and threatened to kill you also. Your lawyer added a few more details about you. He said, you are 36 years old and come from Pukari village in Malalaua District of this Province. You are married with two children. Your mother is alive but your father is deceased, being killed by the deceased. You are the first born out of two brothers and three sisters. You have no formal education and no formal employment. You are a member of the United Church. Further, he pointed out that, you have been in custody for 1 year 10 months.

4. Your lawyer proceeded to make submissions in relation to the kind of sentence you should receive for killing the deceased. He then highlighted the factors going in your favour, namely, your guilty plea, your expression of remorse, being a first time offender, no preplanning and arming yourself to kill the deceased and that you were provoked in the non legal sense. At the same time, your lawyer correctly pointed out that you committed a very serious offence which is prevalent and that you used a dangerous weapon, an axe, to prematurely bring to an end a human life. Finally, your lawyer referred the Court to the recent Supreme Court decision in Manu Kovi v. The State,

1 (31/05/05) SC 789, per Injia, DCJ., Lenalia & Lay JJ.

1 which provided guidelines for sentencing in all homicide cases and submitted that your case falls in the third category under those guidelines for murder cases. That category attracts sentences between 20 and 30 years.

5. Counsel for the State Mr. Mark, apart from pointing out that you were not provoked in the legal sense; agreed essentially with your lawyer’s submissions. In taking that position, counsel for the State emphasised the fact that you committed a very serious and prevalent offence using a dangerous weapon, which was an axe.

6. The issue before me then is, what is the appropriate sentence for you? This issue can be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines, trends and tariffs per the Supreme and National Court judgments and the particular circumstances, in terms of the factors in your aggravation as well as those in your mitigation. I will therefore, first turn to a consideration of the offence and its sentencing guidelines and trend.

The Offence and Sentencing Trend

7. Section 300 (1) of the Criminal Code prescribes the offence of murder and its penalty of life imprisonment, subject to s. 19 also 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,

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

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

3 [1988-89] PNGLR 98.

3 provide the following guidelines for sentencing in murder cases:

1. On a plea of guilty where there are no special aggravating factors, a sentence of six years;

2. Sentences of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused; and

3. On a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

8. As early as my decision in The State v. Raphael Kimba Aki (N0.2),

4 (28/03/01) N2082, per Kandakasi J.

4 I reviewed the above sentencing guidelines and observed and said as follows:

“Clearly, the guidelines set in the Laura No. 2 case, has to be reviewed in the light of the sentencing trends in manslaughter cases as well as the increase in murder cases since those guidelines were set. The guidelines were given on the 3rd of April 1989. That was more than 11 years ago and may now be out dated especially in the number of years to be imposed for each of the categories. Going by the sentences currently being imposed in manslaughter cases, the starting period for murder cases should now be increased to 10 years or more. Thus, the guidelines in the Laura No. 2 case should be varied in the following way:

1. On a plea of guilty where there are no special aggravating factors, a sentence of ten years;

2. Sentences of less than ten years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;

3. On a plea of not guilty, a range of sentences from twelve years to fourteen years and more in a case where aggravating factors are evidenced would be appropriate.”

9. The Supreme Court in its recent judgment in Simon Kama v. The State (2004) SC740, 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 and 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. At the same time, that decision endorsed the observations and suggestions in The State v. Raphael Kimba Aki (N0.2). It then proceeded to review the approach to sentencing and the suggested tariffs at page 22 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...