The State v Michael Rende (2013) N5220

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 14 May 2013
• Citation: (2013) N5220
• Docket Number: CR NO.845 of 2012
• Court: National Court
• Year: 2013
• Judgement Number: N5220

Full Title: CR NO.845 of 2012; The State v Michael Rende (2013) N5220

National Court: David J

Judgment Delivered: 14 May 2013

N5220

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.845 of 2012

THE STATE

V

MICHAEL RENDE

Prisoner

Mt. Hagen: David J

2013 : 14 March, 7 & 14 May

CRIMINAL LAW – sentence – murder – use of bush knife to commit offence – multiple wounds inflicted on deceased’s body - case falling within category 3 of Manu Kovi sentencing guidelines – factors in mitigation outweigh those in aggravation – prisoner is aged 65 years – he is of advanced age – advanced age is a special mitigating factor - sentence of 24 years warranted, but 12 years imposed instead – custodial sentence – Criminal Code, Section 300 (1)(a).

Cases cited

Goli Golu v The State [1979] PNGLR 653

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

The Public Prosecutor v Vangu’u Ame (1983) 424

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

Lawrence Simbe v The State [1994] PNGLR 38

Ivoro Kaumin Lupu v The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997

The State v Kore Ase (2001) N2220

Max Java v The State (2002) SC701

The State v Sumbiako Wapuko (2003) N2444

Joseph Enn v The State (2004) SC738

Sakarowa Koe v The State (2004) SC739

Kepa Wanege v The State (2004) SC742

Manu Kovi v The State (2005) SC789

John Baipu v The State (2005) SC796

The State v Maraka Jackson (2006) N3237

The State v Peter Wirundi (2010) N3994

Counsel

Mr. Joe Kesan for the State

Mr. Philip L. Kapi for the offender

SENTENCE

1. David J: This is the sentence of the Court of the prisoner, Michael Rende who was convicted on a plea of guilty to one count of the murder of Sape Michael on Sunday, 5th August 2012 at Tomba village, Tambul in the Western Highlands Province contrary to Section 300 (1)(a) of the Criminal Code. The prisoner appears before me for sentence from custody.

2. The short facts presented to the Court on which the prisoner was arraigned were that on Sunday, 5th August 2012 at about 08:00 o’clock in the morning, the prisoner was at his dwelling house at Tomba village, Tambul District in the Western Highlands Province with his wife, the deceased. His daughter and his mother in law had left the house to go to church and he was alone in the house with the deceased. An argument arose and as a result, the prisoner got a bush knife and chopped the deceased many times on her body including her face, left and right wrists and her neck. The deceased died as a direct consequence of the injuries she sustained from the attack. At the time when the prisoner chopped the deceased many times on her body, he intended to cause grievous bodily harm.

3. The prisoner made application for a pre-sentence report to be compiled and filed by the Probation Service, Mt. Hagen Branch which was granted. Submissions on sentence were deferred pending the compilation and filing of the report. The report has been filed.

4. The maximum penalty prescribed for this offence is, subject to Section 19 of the Code, imprisonment for life.

5. Applying the principle of proportionality, i.e., a man must be given the sentence appropriate to his crime (as to both harm done and culpability) and no more, the maximum penalty is usually reserved for the worst sort of cases of murder: see Goli Golu v The State [1979] PNGLR 653 and Avia Aihi v The State (No 3) [1982] PNGLR 92.

6. It is also settled law that each case must be decided on its own facts: see Lawrence Simbe v The State [1994] PNGLR 38.

7. The medical report comprising the affidavit of Dr. Michael Dokup of the Mt. Hagen General Hospital sworn on 11th October 2012, the Post Mortem Report dated 15th August 2012 and the Medical Certificate of Death issued on 13th August 2012 confirms that the deceased a Melanesian who was estimated to be aged about 43 years at the time of death on Sunday, 5th August 2012 was brought to the Mt. Hagen General Hospital after her death and her body was the subject of a post mortem examination conducted by Dr. Dokup at the hospital morgue on the 13th August 2012 at about 12:00 noon. The post mortem on the deceased revealed that she sustained multiple bush knife wounds to her face, both her wrists and posterior neck and she died instantly from severed cervical spine at C5-6 level. The injuries the deceased suffered were:

(a) as to the face, a 6 x 4 cm left cheek laceration.

(b) as to the left wrist, a 7 x 4 cm laceration exposing bone and tendons.

(c) as to the right wrist, a 6 x 2 cm deep laceration exposing bone.

(d) as to the neck, a posterior wound 14 x 4 x 8 cm deep exposing severed cervical vertebrae and muscle and vessels.

8. The prisoner has no prior convictions.

9. On his allocutus, the prisoner said sorry to the deceased’s family and asked for mercy. He requested the Court to take into consideration when deciding an appropriate sentence for him the welfare of his children one of whom was attending the Ialibu High School and that he was a first offender.

10. The pre-sentence report, which I have considered, reports that belkol of K8,000.00 and two pigs were paid. The deceased’s relatives have demanded compensation of K100,000.00, fifty pigs and three cassowaries, but it has not been paid yet. The report further reports that the prisoner does not have the means to pay the compensation on his own and will rely on his relatives and members of the community to at least meet part of the demand. The report also reports that despite his advanced age, the prisoner is generally in good health. The report has left the options of sentence to the Court to determine.

11. The prisoner is from Pakule village, Imbongu in the Southern Highlands Province. He had been residing with the deceased and her family at her village of Tomba, Tambul in the Western Highlands Province for about three months when he committed the crime. He is 65 years old, married and previously employed by Loma Construction sealing roads, but was unemployed at the time of committing the offence. He had seven children from his marriage with the deceased, but two have died. The five surviving are aged between 8 and 25 years and the last two attend school. His parents are deceased. He is illiterate having received no formal education. There are five siblings in his family and he is the third born. The prisoner was apprehended on 12 August 2012 and he has been in custody since that time. That works out to be a period of 9 months and 2 days.

12. In mitigation, the defence submitted that:

1. the prisoner was a first offender;

2. he expressed remorse;

3. part compensation comprising K8,000.00 cash and two pigs was paid to the deceased’s relatives;

4. the prisoner was of the advanced age of 65 years; and

5. there was de facto provocation.

13. In aggravation, the prosecution submitted that:

1. a dangerous knife in the form of a bush knife was used to commit the offence; and

2. the offence committed with the use of a bush knife was prevalent.

14. The factors which mitigate the offence are:

1. there was no pre-planning;

2. the prisoner is a first offender;

3. the prisoner cooperated with the police and made early admissions of his guilt to the police in the Record of Interview;

4. consistent with his admissions in the Record of Interview, the prisoner entered a guilty plea;

5. the prisoner expressed remorse;

6. Belkol as part of compensation payment in the sum of K8,000.00 and two pigs has been paid to the deceased’s relatives.

7. the prisoner’s advanced age of 65 years;

8. this was a killing in a domestic setting associated with marital discrepancies following an argument between the prisoner and the deceased;

9. there was de facto provocation;

10. welfare of the prisoner’s young children; and

11. the prisoner’s previous good and trouble free record.

15. A very advanced age of an offender is a special mitigating factor: The State v Laura (No 2) (1988-89) PNGLR 98, Lawrence Simbe v The State, Manu Kovi v The State (2005) SC789. In my view the prisoner who is aged 65 years is of a very advanced age given it is beyond the life expectancy of male Papua New Guineans.

16. As to de facto provocation, there is evidence that the deceased left the prisoner and the matrimonial home in Pakule, Imbongu in the Southern Highlands Province and returned to her village in April 2012 with the youngest daughter of the marriage namely, Meto Michael because of marriage problems. The prisoner followed the deceased to her village some three to four weeks later with the intention of bringing the deceased back to Pakule. The deceased’s mother states that she gave the couple K100.00 for bus fare, but the deceased refused to go fearing for her safety. The Village Court at Tomba was approached to conduct a mediated settlement of the marriage problems of the prisoner and the deceased, but the process failed. According to the Record of Interview, on the morning of that fateful day, the prisoner asked the deceased to return with him to Pakule because he had been living in his wife’s village for over three months and it was time to go. Upon hearing the deceased reply that...