The State v Junior Paul Paina

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 19 February 2015
• Citation: (2015) N5867
• Court: National Court
• Year: 2015
• Judgement Number: N5867

Full : CR No 255 of 2014; The State v Junior Paul Paina (2015) N5867

National Court: Cannings J

Judgment Delivered: 19 February 2015

N5867

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 255 OF 2014

THE STATE

V

JUNIOR PAUL PAINA

Madang: Cannings J

2015: 13, 19 February

CRIMINAL LAW – sentence – murder – Criminal Code, Section 300 – conviction after trial – offender killed a man who had stolen betel nut from him – cut him with a bushknife.

The offender was convicted after trial of the murder of a fellow villager under Section 300(1)(a) of the Criminal Code. The deceased was a man who had stolen betel nut from the offender earlier in the day. The accused admitted cutting him with a bushknife and causing his death, and raised the defences of self-defence and provocation, which were rejected at the trial.

Held:

(1) The maximum penalty for murder is life imprisonment under Section 300 (murder) of the Criminal Code.

(2) The starting point for sentencing for this sort of killing (use of offensive weapon) is 13 to 16 years imprisonment (Manu Kovi v The State (2005) SC789 guidelines applied).

(3) Mitigating factors: it was not a premeditated attack; there was a strong element of de facto provocation due to the deceased stealing the offender’s betel nut; he is a first-time offender; some compensation has been paid.

(4) Aggravating factors: it was a vicious attack, out of proportion to what the deceased did to him; there was a strong desire to inflict grievous bodily harm; the use of an offensive and lethal weapon.

(5) A sentence of 16 years imprisonment was imposed. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789

State v Junior Paul Paina (2014) N5819

The State v Abaya Ulas (2010) N4009

The State v David Solomon Lingen CR No 1292/2009, 20.11.09

The State v Jacob Aku Matai (2011) N4256

The State v Julius Kembu CR No 288/2009, 23.04.09

SENTENCE

This was a judgment on sentence for murder.

Counsel

M Pil, for the State

A Meten, for the offender

19th February, 2015

1. CANNINGS J: Junior Paul Paina was convicted after trial of one count of murder under Section 300(1)(a) of the Criminal Code. He cut the deceased, Daniel Salawai, a 28-year-old man, with a bushknife, intending to do him grievous bodily harm and causing his instant death, at Arra in the Transgogol area of Madang Province, on Friday 15 November 2013. The offender cut the deceased once, inflicting a fatal wound in the posterior chest, measuring 32 cm x 9 cm with a depth of 15 cm.

2. At the trial the offender admitted cutting the deceased and relied on defences of self-defence and provocation. Both defences were rejected. The prosecution proved that the deceased did not unlawfully assault the offender so the offender was not acting in self-defence. As to provocation the Court accepted the offender’s evidence that the deceased had stolen betel nut from him earlier that day and there was a history of such conduct by the deceased and that the offender had good cause for being angry with the deceased and for confronting him with the allegation that he was a thief. However the prosecution proved that the offender did not act in the heat of passion, there was no sudden provocation and he cut the deceased after there was time for his passion to cool. Further details of the case are in the judgment on verdict, the State v Junior Paul Paina (2014) N5819.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

I say sorry to the deceased’s family and to my family. I have a wife and children to look after and I have to care for my mother and my brothers and sisters. The deceased’s wife Angela has spoken to me and told me that she wants me to come out of prison so that I can work and make money to pay them more compensation. She said that the deceased’s relatives are wanting her to pay compensation to them, so she needs assistance in raising money. I ask for the mercy of the court so that I do not have to spend too much more time in prison.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Madang office of the Community Based Corrections Service.

Personal details of Junior Paul Paina

Age : 33

Origin : Karangasa, Ward 13, Transgogol LLG, Madang

Upbringing : village

Marital status : married with 2 children

Family : mother alive; 2nd born in family of 10

Education : grade 6

Employment : no formal employment

Occupation : farmer, cash crops

Health : sound

6. His family is strongly supportive of him. His adopted father, Paul Paina, speaks very favourably of him, and wants the court to take into account the circumstances of the death, which was the result of built-up frustration due to the deceased’s irresponsible actions over a long period. The local ward member, Bill Gera, also spoke favourably of the offender. It was an unfortunate incident but he wants the court to consider that the local community has done well to try to bring peace between the families. The offender’s family had paid K3,000.00 cash and four live pigs soon after the incident. Three members of the deceased’s family were interviewed. They acknowledged the receipt of the cash and pigs but their view is that that was just bel kol, not real compensation and that without real compensation the offender should be imprisoned.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mrs Meten submitted that the circumstances of this case – some aggravating factors as well as mitigating factors – bring it within category 2 of the Supreme Court murder sentencing guidelines in Manu Kovi v The State (2005) SC789. There was a strong element of de facto provocation, he is a first-time offender, he did not resist arrest, he cooperated with the Police, he has shown remorse and made a genuine attempt to compensate the deceased’s family. A sentence of 16 to 20 years is warranted and there is a strong case for a suspended sentence.

SUBMISSIONS BY THE STATE

8. Mr Pil disagreed that this was a category 2 case. He submitted that because of the viciousness of the attack, there was a strong intention to cause grievous bodily harm. No regard should be paid to the statement in allocutus of the alleged attitude of the deceased’s widow as the offender had not pleaded guilty and there was no evidence that that was in fact the view of the widow. The sentence must reflect the seriousness of the offence, and therefore should be in the range of 20 to 30 years imprisonment.

DECISION MAKING PROCESS

9. 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 sentences have been imposed for similar offences?

· step 4: what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted?

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

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. 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?

11. I will apply the sentencing guidelines for murder from the leading Supreme Court case of Manu Kovi v The State (2005) SC789.

SENTENCING GUIDELINES FOR MURDER: KOVI’S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – 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 grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated 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.	Life imprisonment

12. I accept Mrs Meten’s submission that this is a category 2 case and the starting point range is 16 to 20 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

13. Four recent cases I have decided provide useful precedents. In the Kimbe case of The State v Julius Kembu CR No 288/2009, 23.04.09 the offender pleaded guilty to the murder of a man who he believed had threatened his wife, had sex with her and made...