The State v Jack Edward Rurua

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ
• Judgment Date: 20 May 2014
• Citation: (2014) N5617
• Docket Number: CR NO 51 OF 2013
• Court: National Court
• Year: 2014
• Judgement Number: N5617

Full Title: CR NO 51 OF 2013; The State v Jack Edward Rurua (2014) N5617

National Court: Toliken, AJ

Judgment Delivered: 20 May 2014

N5617

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 51 OF 2013

THE STATE

V

JACK EDWARD RURUA

Alotau: Toliken, AJ.

2013: 17th October

2014: 20th May

CRIMINAL LAW – Sentence – Murder – Plea – Prisoner killed his own brother – Inflicted deep cuts to neck, shoulder, left elbow and knee cap of deceased – Deceased asleep when attacked - Criminal Code Act Ch. 262, s 300(1)(b).

CRIMINAL LAW – Sentence - Mitigating factors - First time offender – Early plea – Self inflicting killing of close relative (parricide) – Co-operated with police - Aggravating factors - Vicious attack – Very strong intention to do grievous bodily harm or even kill - Surprise attack innocent, defenceless sleeping child – Intoxication through consumption of alcohol and marijuana – Sentenced to 17 years less time in custody.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653

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

Kesino Apo v The State [1988] PNGLR 182

Pauline Painuk v. The State, SCRA 54 of 2000 (unnumbered and unreported dated 22nd November 2000)

Joseph Enn v The State (2004) SC738

Manu Kovi v The State (2005) SC 789

The State v Jack Mek (1997) N1575

The State v Saku Sogave (2000) N2086

State v Baipu (2003) N2451

The State v Pake (2007) N5051

The State v Laiam (2010) N3995

The State v Anton (2010) N 4117

The State v Lagu (2011) N4354

The State v Matai (2011) N4256

The State v Henry Kare; CR 498 of 2010 (unreported and unnumbered judgment dated 9th August 2013).

The State v Samual Tavari ; CR 50 of 2013(unreported and unnumbered judgment delivered on instant date)

Counsel

B Gore, for the State

P. Palek, for the prisoner

JUDGMENT OF SENTENCE

20th May, 2014.

1. TOLIKEN, AJ: Jack Edward Rurua, on the 27th of April 2012 between 7.00 – 8.00p.m., you had returned home drunk to your village of Koiabagira, in the Rabaraba District of Milne Bay Province and you started attacking your mother with a bush knife. Your father tried to remove the bush knife from you but you were too strong for him and so you attacked him also. As you were attacking your parents all your siblings except your younger brother Kenneth Edward Rurua (deceased) ran away. Turning away from your parents you went over to your younger brother Kenneth who was sleeping on a mat and swung the bush knife at him. As you swung the knife a second time at him your parents got scared and ran away. They returned the next day and found Kenneth lying dead where you had attacked him. The matter was reported to the police and you were arrested. The State alleged that you had intended to cause the deceased grievous bodily harm when you attacked him with the bush knife.

2. On the 17th of October 2013 the State indicted you for one count of murder contrary to Section 300 (1) (a) of the Criminal Code Act Ch. 262 on the above facts. You pleaded guilty to the charge and I entered a provisional plea of guilty. I confirmed your plea and convicted you after perusing the District (committal) Court depositions.

3. After hearing from you, your lawyer and the State on the question of sentence, I adjourned for sentence to 23rd October 2013 but I was unable to do so. Hence, I adjourned to the December 2013 Circuit but that circuit was aborted due to funding problems faced by the Public Prosecutor’s Office. You now appear before me for your sentence on this first circuit to Alotau for 2014.

4. The crime of murder under Section 300 (1)(a) provides –

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; or

(b) ...

(c) ...

(d) ...

(e) ...

Penalty: Subject to Section 19, imprisonment for life.

(2) In a case to which Subsection (1)(a) applies, it is immaterial that the offender did not intend to hurt the particular person who was killed.

(3) ...

(4) ...

5. I have to determine an appropriate sentence for you. And to do that I must decide whether or not your case should attract the prescribed maximum penalty – life imprisonment. In doing so I must take into account your personal circumstances and interest and your attitude to the offence, the circumstances under which you committed the offence, the State’s interest, the way in which the courts have treated this type of offence and the purpose (s) or objective (s) for which sentences for this offence should serve.

6. You are from Koiabagira Village in the Rabaraba Distrcit of Milne Bay Province. At the time of your conviction you were 23 years of age and single. Hence, you would have been 22 years when you committed the offence. You are the 4th born in a family of 3 boys and 6 girls. Your parents are both alive. You are an Anglican and did not complete your Primary School education having left school in Grade 7. You are a first time offender and were in pre-conviction custody for a period of 1 year, 5 months and 7 days.

7. In your address to the Court you said the following:

I say sorry to the court for the wrong I had done. I have broken the Constitution of Papua New Guinea. I ask you to have mercy on me be and I would like to be placed on good behaviour bond so that I could serve my sentence in my village. That is all.

8. I heard from your lawyer Mr. Palek and Ms. Gore for the State. They basically adopted the submissions they made in the matter of The State v Samual Tavari ; CR 50 of 2013(unreported and unnumbered judgment delivered on instant date), which I have just passed sentence on. Both lawyers agree that your case does not fall under the worst category for the offence of murder to attract the maximum penalty of life imprisonment. They also pointed me to the case of Manu Kovi v The State (2005) SC 789 (Injia, DCJ. (as he then was) Lenalia and Lay JJ.) where the Supreme Court provided sentencing tariffs for homicide offences like murder and the considerations or circumstances for which the suggested tariffs could be applied.

9. Mr. Palek submitted that your case falls in between the top of Category 1 and the bottom of Category 2 of the Manu Kovi tariffs for murder and thus should attract a sentence between 13 – 16 years. Ms. Gore on the other hand suggested that your case falls under Category 3 and should therefore attract a sentence between 20 – 30 years. Both counsel again cited the same cases which they cited in Samuel Tavari. I will refer to some of these cases later in this judgment.

10. And as I did in that case I also tabulate below the sentencing tariffs and relevant circumstances for Categories 1, 2 and 3 of Manu Kovi.

Category	Circumstances	Sentence
1.	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.	12 – 15 years
2	Trial or Plea.; Mitigating factors with aggravating factors - No strong intent to do GBH -Weapons used - Some pre-planning -Some element of viciousness	16 – 20 years
3	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.	20 – 30 years

11. So let me now turn quickly to the mitigating and aggravating factors in your offence. First the mitigating factors: you pleaded guilty early to the charge thus saving time and money for the State, you are a first time offender and were previously of good character, you are youthful offender and you are a simple inadequately educated and unsophisticated villager. Killing of a relative (parricide) is a mitigating factor so I take this into account in your favour too. (Kesino Apo v The State [1988] PNGLR 182 (Kapi DCJ., Woods, Los JJ.)

12. On the other hand I take the following aggravating factors against you. You mercilessly attacked your innocent and defenceless 10 year old kid brother. It was totally unprovoked not to mention that it was also vicious. There was no medical report to attest to the injuries he suffered but in Q & A No. 25 in your Record of Interview you admitted that you cut off his neck. But it appears that those were not the only injury you inflicted on him. In his statement to the Police your father Mr. Edward Rurua stated that when he returned to your family home the next day he found the deceased lying on the mat where you had killed him covered in...