The State v Francis Reku and Others

• Jurisdiction: Papua New Guinea
• Judge: Numapo J
• Judgment Date: 17 September 2024
• Neutral Citation: N10858
• Citation: N10858, 2024-09-17
• Counsel: A. Bray for the State,N. Loloma for the Defence
• Docket Number: CR Nos. 507, 508, 509, 510 & 511 of 2023
• Hearing Date: 11 June 2024,14 June 2024
• Court: National Court

N10858

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 507, 508, 509, 510 & 511 of 2023

The State

v.

Francis Reku

Herman Malala

Sebastian Boa

Vincent Linge

and

Ignatius Uma

Kimbe: Numapo J

2024: 11^th & 14^thJune

CRIMINAL LAW — Particular offence — Murder — Guilty Pleas — Sentencing Principles — Sentencing guidelines on murder cases — Sentencing Discretion — Aggravating & Mitigating factors — Extenuating circumstances — Sections 300 & 19 of Criminal Code.

Held:

(i) The appropriate sentence for vicious attack using offensive weapons with a strong desire to do grievous bodily harm (GBH) resulting in death is between category 2 and 3 of the Manu Kovi Guidelines.

(ii) Sentencing discretion of the trial judge under section 19 is not taken away by any sentencing guidelines.

(iii) Sentence imposed by the Court must reflect the purposes of sentencing such as deterrence, rehabilitation, restitution and retribution.

(iv) Factors such as the gravity of the offence, extenuating circumstances, aggravating and mitigating factors including prevalence of the particular offence are taken into account in deciding both the appropriate sentence and the head sentence.

(v) Prisoners each and severally sentenced to Sixteen (16) years imprisonment less the pre-trial period.

(vi) Sentence partially suspended if compensation is paid.

Cases Cited:

Goli Golu v The State[1979] PNGLR 653

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

Manu Kovi v The State(2005) SC 789

The State v Iori Veraga(2005) N2921

Kumbamong v The State[2008] PGSC 51; SC1017 (29 September 2008)

State v Jerry Nelson & Gima Sana CR 1165 & 1166 of 2022

State v Jeremiah v. Peter & George Kuno CR. No. 503 & 505 of 2022

State v Jacob Tamaliu, Raymand Gavia Mangaea & Isaac Laupu CR No.s 1361, 1362 & 1363 of 2022.

State v Silingo Abitena & Ors, CR Nos. 972, 973 & 975 of 2017

State v Jackson(2206) N3237

State v Michael Gend Cr. No. 760/2011. 17^th February, 2014

State v Sony Yauri and Willie Gideon CR. No. 1045 & 1046 of 2017

Counsel:

A. Brayfor the State

N. Lolomafor the Defence

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defence

SENTENCE

Numapo J: This is a decision on sentence. The Prisoners FRANCIS REKU, HERMAN MALALA, SEBASTIAN BOA, VINCENT LINGE and IGNATIUS UMA all pleaded guilty to one count of Murder, pursuant to Section 300 (1) (a) of the Criminal Code and were convicted accordingly.

A. BRIEF FACTS

The facts to which the offenders pleaded guilty were that; on the 17^th September 2022, the deceased (Boas Dede) had attacked a person by the name of Nathan Uma, a relative of the prisoners. They (offenders) confronted the deceased and chased him. They were armed with an axe, a bushknife and slingshots.

As the deceased was running away Francis Reku shot him on the head with his slingshot that caused him to fell down. The deceased got up again and grabbed onto another person namely, Steven Meta to avoid been attacked but tried fell down again and Herman Malala chopped with him with an axe on his abdomen area. He lied on the ground and passed out. Deceased eventually died from his injuries.

B. LAW

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 the person killed or to some other person;

Penalty: Subject to Section 19, imprisonment for life

C. APPROPRIATE SENTENCE

It is trite law that the maximum penalty prescribed by law is reserved for the worst type offending in the given category (See Goli Golu v The State[1979] PNGLR 653; Avia Aihi v The State (No 3)[1982] PNGLR 92).

Each case is assessed on its own facts and circumstances, being the aggravating and mitigating factors and the extenuating circumstances. The prevalence of the particular offence is also a consideration that is taken into account. All these have to be properly weighed up in deciding the appropriate sentence; (The State v Iori Veraga(2005) N2921).

D. SENTENCING GUIDELINES

Both the State and the Defence submitted that in determining the appropriate sentence the Court should be guided by the sentencing tariffs on Murder set out in the famous case of Manu Kovi v The State(2005) SC 789. The guidelines is set out below:

CATEGORY	MURDER
Category 1	12 – 15 years
Plea Ordinary cases Mitigating factors with no aggravating factors	No weapons used – Little or no pre-planning Minimum force used Absence of strong intent to do GBH.
Category 2	16 – 20 years
Trial or Plea Mitigating factors with aggravating factors	No strong intent to do GBH Weapons used Some pre-planning Some element of viciousness.
Category 3	20 – 30 years
Trial or Plea Special Aggravating factors Mitigating factors reduced in weight or rendered insignificant by gravity of offence	Pre-planned. Vicious attack Strong desire to do GBH Dangerous or offensive weapons used e.g. gun or axe Other offences of violence committed.
Category 4	Life Imprisonment
Worst Case – Trial or Plea Special aggravating factors No extenuating circumstances No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	Pre-meditated attack Brutal killing, in cold blood Killing of innocent, harmless person Killing in the course of committing another serious offence Complete disregard for human life.

E. SENTENCING TREND ON MURDER

A number of case laws were cited by both the State and the Defence in their respective submissions on sentence to show the current trend on sentencing for murder cases and submitted that the court be guided by them. The sentencing tariffs of Manu Kovi Guidelines were reflected in many of these case laws. I find these cases very useful and referred to them below:

1.State v Jerry Nelson & Gima Sana CR 1165 & 1166 of 2922

The two prisoners were at Dami Research Station near Kimbe town when they attacked the deceased Romanus Joseph Lokono who had come to apologize to one of them regarding a fight they had earlier. Their conversation developed into an argument and they attacked Romanus. It was a mob attack and they used a scissor to attack the deceased which caused his death.

Both accused persons pleaded guilty and were sentenced to 16 years IHL.

2.State v Jeremiah v. Peter & George Kuno CR. No. 503 & 505 of 2022

The two prisoners were at Galai No. 1 on the 25^th November 2021. At around 4:30pm the prisoners and others combined and fought with the deceased (Andrew ToRuga) and hit him with stones. Andrew ToRuga sent word to his relatives to help him as he was being attacked. His relatives arrived at Galai No. 1 and attacked the people there. The Galai community then mobilized and went into Andrew ToRuga's oil palm block and chased away the people who came to assist him.

Prisoners Jeremiah Peter and George Kuno attacked the deceased with a bushknife and chopped him on his right leg causing him to fell to the ground. George Kuno hit Andrew ToRuga with a stone and also used an iron pipe on the head. He subsequently died from the injuries he received from the attack.

Both prisoners were sentenced to 15 years IHL.

3.State v Jacob Tamaliu, Raymand Gavia Mangaea & Isaac Laupu CR No.s 1361, 1362 & 1363 of 2022.

The offenders were under the influence of alcohol during a customary ceremony at Potne village, Gloucester, West New Britain Province. Members of the public were not too happy with their drunken behaviour and an argument erupted. A fight started and the priosners chased the deceased (Messel Joe) and attacked him with bushknives. Deceased was chopped on his shoulder and head and eventuall died form the injuries.

Prisoners were each sentenced to 18 years IHL.

4.The State v Silingo Abitena & Ors, CR Nos. 972, 973 & 975 of 2017

The offenders pleaded guilty to one count of Murder. They attacked the deceased with bushknives and axes. The deceased died from the injuries inflicted on his body. The offenders were sentenced to 18 years, 12 years and 15 years respectively.

5.The State v Jackson(2016) N3237

The offender pleaded guilty to murder of a deceased whom he suspected of killing his father through sorcery. On the day...