The State v Kabua Kove (2010) N4063

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 15 July 2010
• Citation: (2010) N4063
• Docket Number: CR. 1274 OF 2008
• Court: National Court
• Year: 2010
• Judgement Number: N4063

Full Title: CR. 1274 OF 2008; The State v Kabua Kove (2010) N4063

National Court: David, J

Judgment Delivered: 15 July 2010

N4063

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 1274 OF 2008

THE STATE

V

KABUA KOVE

Prisoner

Waigani: David, J

2010 : 9 & 15 July

CRIMINAL LAW – sentence – murder – deceased having extra marital affair with prisoner’s mother - affair lasting twenty five years – prisoner using shotgun to shoot the deceased – deceased shot on chest – death instant - death resulted from gunshot wound – total of fourteen pellets penetrated lungs - guilty plea – no prior conviction – cooperation with police - events leading to commission of crime treated as extenuating circumstance – prisoner lacking sophistication – no pre-planning – prevalence of offence - strong intention to cause grievous bodily harm - sentence of twenty four years imprisonment imposed – ss. 300 (1)(a) and 19 Criminal Code.

Cases cited:

Goli Golu v The State [1979] PNGLR 653

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

Ure Hane v The State [1984] PNGLR 105

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

Lawrence Simbe v The State [1994] PNGLR 38

Triga Kakarabo v The State, SC Review No.23 of 2001, Unreported & Unnumbered Judgment of the Supreme Court (Jalina, Injia & Sawong) delivered on 3 October 2002 at Mt. Hagen

Max Java v The State (2002) SC701

Joseph Enn v The State (2004) SC738

Sakarowa Koe v The State (2004) SC739

Simon Kama v The State (2004) SC 740

Kepa Wanege v The State (2004) SC742

Manu Kovi v The State (2005) SC 789

Counsel:

Mr. Ravunama Auka, for the State

Mr. Frederick Kirriwom, for the Prisoner

SENTENCE

15 July, 2010

1. DAVID, J: INTRODUCTION: On 9 July 2010, the State presented an indictment charging the Prisoner that he on 24 June 2008 at Wasuma in Papua New Guinea murdered one Koro Gunina (the deceased) contravening s.300 (1)(a) of the Criminal Code. Upon arraignment, the Prisoner entered a guilty plea which the Court accepted and therefore convicted him of the charge.

BRIEF FACTS

2. For purposes of arraignment, the following brief facts were put to the Prisoner.

3. On 24 June 2008 at around 01:30 pm at Wasuma village, Rigo District in the Central Province, the Prisoner went to his garden with his mother and daughter. Whilst in the garden, the deceased was seen hiding in the bushes staring at his mother and daughter. The Prisoner took his gun, aimed at the deceased and fired a shot at him. He shot the deceased on the chest. The deceased ran into the bushes and died later as a result of the gun shot wound he sustained. When the Prisoner shot the deceased, he intended to cause grievous bodily harm to him.

THE EVIDENCE

4. The evidence contained in the depositions support the charge.

5. In the Record of Interview dated 26 June 2008, the Prisoner admits shooting the deceased with his shotgun on Tuesday, 24 June 2008.

6. The deceased is from Wasuma village, Rigo District in the Central Province aged fifty five years.

7. According to the Autopsy Report authored by Dr. Philip Golpak of the Port Moresby General Hospital dated 4 July 2008, he conducted a post mortem examination of the deceased at the Port Moresby General Hospital on 4 July 2008 at about 10:00 am.

8. The Autopsy Report confirms that the deceased died from a gunshot wound to the chest. This is consistent with the Prisoner’s answers to Questions 25 and 26 of the Record of Interview that he shot the deceased once with his shotgun. External examination revealed that the deceased received fourteen pellet wounds centered on the anterior chest mainly on the right side. Internal examination revealed twelve pellet wounds on the right lung anterior aspect on both the upper and the lower lobes. The left lung had two pellet wounds on the lower lobe of the anterior aspect. Two litres of free blood and blood clots was found in the right thoracic cavity.

ANTECEDENTS

9. The Prisoner is from Wasuma village, Rigo District in the Central Province and is a subsistence farmer. He is aged about thirty eight years. He is married and has six young children. He claims to have received no formal education. He is a Christian and is a baptised member of the Seventh Day Adventist Church. His parents are alive.

10. The Prisoner does not have any prior conviction.

ALLOCATUS

11. The Prisoner said that whilst he admitted committing the crime for which he is sorry, he asked the Court to exercise mercy on him by placing him on probation or on a good behaviour bond taking into account the circumstances in which the offence was committed. He said his mother had been involved in an extra marital affair for twenty five years with the deceased beginning from the time of his childhood and when his father became aware of that relationship, he laid a complaint in the District Court, but that action did not deter the deceased. He personally took up the matter with the village court as well, but nothing was achieved there. Therefore, when he saw the deceased at the garden stalking his mother to do “something bad”, he was angry and shot him.

THE LAW

12. Section 300 (1)(a) of the Code creates the offence and prescribes the penalty. The maximum penalty, subject to s.19 of the Code is life imprisonment. I set out the relevant provision as follows:-

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 …………………………………….

Penalty: Subject to Section 19, imprisonment for life.

13. It is trite law that the maximum penalty should be imposed on cases of the worst category: see Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] PNGLR 92 and Ure Hane v The State [1984] PNGLR 105. It is also settled law that each case must be decided on its merits as highlighted in Lawrence Simbe v The State [1994] PNGLR 38.

14. The sentencing tariff for murder cases was initially proposed by the late Chief Justice Kidu in The State v Laura (No.2) [1988-89] PNGLR 98. That was a case where the prisoner who was charged for murder was found guilty after a trial and sentenced to eight (8) years. His Honour suggested that:-

“(a) on a plea of guilty where there are no special aggravating factors, a sentence of six years;

(b) a sentence of less than six years may be imposed only where there are special mitigating factors, such as the youthfulness or very advanced age of the accused;

(c) on a plea of not guilty, a range of sentences from eight to twelve years;

(d) or more in a case where aggravating factors are evidenced.”

15. The tariff suggested in Laura (No.2) which was adopted and applied in Lawrence Simbe has been subjected to review by several Supreme Court cases with a view to adjusting it upwards. Simon Kama v The State (2004) SC 740 and Manu Kovi v The State (2005) SC 789 are recent judgments of the Supreme Court on point.

16. In Simon Kama, the appellant was sentenced to imprisonment for a term of twenty five years on a guilty plea to a charge of murder. The crime was committed in the course of conducting a planned armed robbery with the use of three firearms, a 303 rifle and two home made guns on a highway. The deceased was the driver of a Toyota Land Cruiser motor vehicle with about five passengers on board. The deceased slowed the vehicle down to stop upon seeing the appellant and his co-offenders step out on to the road from their hiding place with their guns pointed at the deceased and the other passengers. The appellant then shot the deceased on the head killing him instantly. The appellant appealed on the grounds of excessiveness of sentence and the failure by the National Court to take into account the appellant’s guilty plea and not allowing him to address the court on sentence. The appeal was dismissed.

17. The Supreme Court there held that the guidelines set by Laura (No.2) and Lawrence Simbe for murder cases are relevant with certain variations based on the review of sentences imposed up to the time of judgment and the prevalence of the offence. The Supreme Court suggested the following tariff:-

“(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d) On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence...