The State v Evan Kinamur

• Jurisdiction: Papua New Guinea
• Judge: Anis J
• Judgment Date: 15 October 2018
• Citation: (2018) N7503
• Court: National Court
• Year: 2018
• Judgement Number: N7503

Full : CR No 206 of 2018; The State v Evan Kinamur (2018) N7503

National Court: Anis J

Judgment Delivered: 15 October 2018

N7503

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 206 OF 2018

THE STATE

V

EVAN KINAMUR

Kokopo: Anis J

2018: 7 September & 15 October

CRIMINAL LAW – Sentencing after trial on verdict – guilty of wilful murder – section 299 of the Criminal Code Act Chapter No. 262 – appropriate sentence considered – extenuating circumstances – tense dispute over customary land - whether suspended sentence should be allowed – prisoner able to reconcile and pay compensation – want of information showing willingness to participate in reconciliation and compensation by relatives of the deceased – whether exercise of discretion may amount to improper exercise of the Court’s power

Facts

The prisoner was found guilty of the offence, wilful murder, under section 299 of the Criminal Code Act Chapter No. 262. This was his hearing and ruling on sentence.

Held

1. The sentence range between 20 to 30 years was considered appropriate under the circumstances.

2. Suspended sentence and probationary requirements were not considered appropriate for the prisoner. (cases followed: State v. Isiah Iona (2018) N7480 and State v. Joe Ngotngot (2016) N6364)

3. The prisoner received a custodial sentence of 16 years less his pre-sentence custody period, for the offence, wilful murder, which he had committed under section 299 of the Criminal Code Act Chapter No. 262.

Cases cited:

Goli Golu v. The State [1979] PNGLR 653

Golu Golu v. The State [1988-89] PNGLR 653

Manu Kovi v. The State SC 789

State v. Anita Kelly (2009) N3624

State v. Bernard Hagei (2005) N2913

State v. Dilu Kimam (2011) N4323

State v. Evan Kinamur (2018) N7373

State v. Ian Napolean Setep [1997] PNGLR 428

State v. Isiah Iona (2018) N7480

State v. Joe Ngotngot (2016) N6364

State v. Saku Uki Aiya (2011) N5198

Ume v. The State [2006] SC836

Counsel:

Ms J Batil, for the State

Ms J Ainui, for the Prisoner

SENTENCE

15th October, 2018

1. ANIS J: The prisoner was convicted of the offence, wilful murder, under section 299 of the Criminal Code Act Chapter No. 262 (CC Act) on 20 July 2018. The sentence hearing proceeded on 7 September 2018, that is, after receipt of the prisoner’s pre-sentence report. I reserved my ruling thereafter to a date to be advised.

2. This is my ruling.

BACKGROUND

3. The indictment and brief facts were stated in my decision on verdict, so I will refer to that, that is, in State v. Evan Kinamur (2018) N7373. But briefly, the prisoner killed one Jeffrey Atoi at Inolo village on the Duke of York Island of East New Britain on 30 September 2017. He had alleged that the killing was accidental. His defence of accident was disproved by the prosecution, and he was convicted by this Court of wilful murder on 20 July 2018.

ISSUES

4. The issues are as follows, (i) whether the prisoner should be sentenced to death, (ii) if not, whether the prisoner should be sentenced to life imprisonment or less, and (iii), if the prisoner is not sentenced to death or given life imprisonment, what would be his fitting sentence, and whether suspended sentence and other terms and conditions should be imposed?

PRESCRIBED PENALTY

5. The prescribed penalty for the offence, wilful murder, is death. That is followed by life imprisonment or a reduced sentence. The provision that states the prescribed penalty for the offence is section 299 of the CC Act. The other relevant provision that gives Courts the discretion to impose lower sentences, is section 19 of the CC Act.

6. For this purpose, let me set out sections 299 and 19(1)(aa). I quote:

299. Wilful murder.

(1) Subject to the succeeding provisions of this Code, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of wilful murder.

(2) A person who commits wilful murder shall be liable to be sentenced to death.

19. Construction of provisions of Code as to punishments.

(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided—

(aa) a person liable to death may be sentenced to imprisonment for life or for any shorter term; and

DECEASED’S RELATIVES

7. No information or interviews were received or conducted, on relatives of the deceased. In the pre-sentence report, the probation officer states that the deceased’s sister had been called in for an interview but had failed to turn up on the appointed date and time.

PRISONER

8. The prisoner has no prior convictions.

9. He is 55 years old. He is married with 5 children. He is a qualified welder. Prior to the date of his crime, he was employed by Rabweld Ltd. He is literate having completed primary, secondary and vocational education.

10. The prisoner had these to say at allocatus. He said he respects the Court and its decision to have found him guilty of wilful murder. He said he is 55 years old. He said he is sorry in God’s eyes. He also says sorry to the Court. He said he has prayed to God and has asked him to have mercy on him. In the same fashion, he asks the Court to have mercy on him. He asks the Court to give probation and place him on good behaviour bond. He said he wants to reconcile and pay compensation to the families of the deceased. He said he now thinks of his children and their school fees.

MITIGATING & AGGRAVATING FACTORS

11. I have considered what counsel has submitted for mitigating and aggravating factors. In my view, the mitigating factors are, (i), the prisoner being a first-time offender, (ii), the prisoner had cooperated with police, and (iii), the prisoner has expressed remorse and regrets in Court.

12. In my view, the aggravating factors are, (i), the use of bush-knife which is a dangerous weapon, (ii), the deceased was defenceless and harmless when he was attacked with the bush-knife, (iii) deceased sustained a very serious long deep neck wound, and (iv), there was loss of life.

EXTENUATING CIRCUMSTANCES

13. I find that there may be extenuating circumstances in the matter. The dispute was between two (2) cousin brothers over customary land. The prisoner is a son of the elder sister whilst the deceased was a son of the younger sister. Acquisition of land in this instance, following the custom of the prisoner and the deceased, is by birth through the eldest daughter in a family under the matrilineal society or practice. Prior to the death, the prisoner and the deceased had quarrelled as to who rightfully owned the land where the prisoner’s house was situated. The quarrel had occurred for some time before the deceased was wilfully murdered by the prisoner on that fatal day.

14. It was not disputed at the trial that it was the deceased that had approached or entered the premises of the prisoner. Evidence revealed that the tension between the two persons was still high at that time. The deceased’s presence at the prisoner’s premises had enabled the prisoner to confront and carry out his actions, that is, he approached the deceased and swung his bush-knife at him killing him. The prisoner also alleged that the deceased had sworn at him using foul languages. However, the allegation had been disproven by the State witness, as I have addressed in my earlier decision on verdict.

15. Nevertheless, and in summary, I find the presence of extenuating circumstances as explained.

PROSECUTION

16. The prosecution submits that the prisoner should receive a prison sentence within the range of 20 to 30 years. It relies on the sentence tariffs set-out in the Supreme Court case of Manu Kovi v. The State SC 789. It submits that the present case falls within category 2. It also submits that the prisoner had pre-planned the attack; that a dangerous weapon had been used and that the prisoner had a strong desire to kill the deceased.

17. Cases referred to are, Manu Kovi v. State (supra), Goli Golu v. The State [1979] PNGLR 653, State v. Ian Napolean Setep [1997] PNGLR 428, Ume v. The State [2006] SC836, State v. Anita Kelly (2009) N3624 and State v. Bernard Hagei (2005) N2913.

DEFENCE

18. The defence also refers to the Supreme Court case of Manu Kovi. Counsel submits that wilful murder committed by the prisoner falls within categories 1 and 2, that is, based on the sentence tariff table set-out in Manu Kovi. Counsel submits that the Court should impose a prison sentence of 20 years. From the said sentence, counsel submits that partial suspension should be imposed with strict conditions.

19. Cases referred to by counsel are as follows: Manu Kovi v. State (supra), Golu Golu v. The State [1988-89] PNGLR 653, State v. Dilu Kimam (2011) N4323 and State v. Saku Uki Aiya (2011) N5198.

PROPOSED SENTENCE

20. I do not think that this case should attract the maximum sentence of death or life imprisonment. I have considered the relevant case law, some of which were submitted by counsel. Because the case law and sentence considerations submitted by both parties are, in my view, relevant and applicable, I will rely on them. In so doing and in this case, the sentence range for the...