The State v Moses Dadu

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 September 2017
• Citation: (2017) N6881
• Court: National Court
• Year: 2017
• Judgement Number: N6881

Full : CR NOS 1119 & 1120 OF 2014; The State v Moses Dadu and Sylvester Dadu (2017) N6881

National Court: Cannings J

Judgment Delivered: 22 September 2017

N6881

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1119 & 1120 OF 2014

THE STATE

V

MOSES DADU

AND

SYLVESTER DADU

Cannings J: Madang

2017: 17 March, 7, 22 September

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offenders chased and stabbed victim after altercation in market – no evidence of provocation by victim – victim unarmed.

This is a judgment on sentence for wilful murder. The offenders, who are brothers, aged 19 and 18 years respectively at the time of the offence, were convicted after trial. There had been a fight in a market between two groups of young men. One group, of which the offenders were members, chased the other group, which included the deceased. While being chased, the deceased fell and then he was stabbed twice by the offenders, once in the right axilla (armpit) area to a depth of 8 cm, and once in the right posterior chest region to a depth of 7 cm. The deceased died soon afterwards. The Court found that each of the offenders unlawfully killed the deceased intending to cause his death. They were adjudged to have had equal involvement in commission of the offence. Their personal circumstances were the same, the significant distinguishing feature for sentencing purposes being that the second offender escaped from lawful custody after delivery of verdict and before sentence and was still at large on the date of the last hearing. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for this sort of wilful murder (trial, special aggravating factors, mitigating factors reduced in weight or rendered insignificant by gravity of offence, brutal killing, killing of defenceless, harmless person, offensive weapon used) is life imprisonment.

(2) Mitigating factors: no prior convictions and a spontaneous incident with no planning involved and some compensation paid to relatives of the deceased; and for the first offender, but not the second offender, no bad community record, expression of remorse and high degree of co-operation with the Police, the Correctional Service and the Court.

(3) Aggravating factors: use of lethal weapon, brutal killing, multiple stab wounds, killing of defenceless person.

(4) The mitigating factors warrant a sentence below the starting point. The sentence for the first offender was 24 years imprisonment and the sentence for the second offender was 30 years imprisonment. There was no suspension of either sentence.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789

Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836

The State v Chris Baurek CR 146/2009, 26.05.10

The State v Isak Wapsi (2009) N3695

The State v Joel Otariv (2011) N4409

The State v Kenny Koget, Edwin Koget, Robert Koget, Moses Dadu & Sylvester Dadu (2017) N6682

The State v Lotivi Mal, Moses Mal, Emmanuel Ong & Kathrine Mal (2012) N4591

The State v Luther Francis Melo (2016) N6267

The State v Mark Bongede (2012) N4683

The State v Mathew Lewaripa (2015) N6151

The State v Mathew Misek (2012) N4561

The State v Moses Nasres (2008) N3302

The State v Seth Ujan Talil (2010) N4159

The State v Tun Mai Isaac (2014) N5595

SENTENCE

This was a judgment on sentence for two offenders convicted of wilful murder.

Counsel

F K Popeu, for the State

A Meten, for the offenders

22nd September, 2017

1. CANNINGS J: This is the decision on sentence for Moses Dadu and Sylvester Dadu who were convicted after trial of one count of wilful murder under Section 299(1) of the Criminal Code.

2. The offenders are brothers, aged 19 and 18 years respectively at the time of the offence, which was committed on the morning of Sunday 6 July 2014 at Bemlon, in the Vidar area of Madang District, Madang Province. There had been a fight in the market between two groups of young men. One group, of which the offenders were members, chased the other group, which included the deceased, Patrick Ngsem, aged 26 years. While being chased, the deceased fell and then the offenders stabbed him twice, once in the right axilla (armpit) area to a depth of 8 cm, and once in the right posterior chest region to a depth of 7 cm. The deceased died soon afterwards. The Court found that each of the offenders unlawfully killed the deceased intending to cause his death. Further details of the circumstances of the offence are in the judgment on verdict, The State v Kenny Koget, Edwin Koget, Robert Koget, Moses Dadu & Sylvester Dadu (2017) N6682.

3. Though jointly tried and convicted and subject to a joint sentencing hearing, each offender must be individually sentenced in a way that takes account of his level of involvement in the offence and his individual circumstances. In that regard, I state that:

· each offender is adjudged to have had an equal degree of involvement in the crime;

· each offender’s age, background and personal circumstances are similar (each of them is now aged in his early 20s, with limited education and a villager, and they are biological brothers).

4. The significant distinguishing feature of the offenders’ circumstances is that the second offender, Sylvester Dadu, escaped from custody after the verdict and during the course of the sentencing hearing, while the first offender, Moses Dadu, did not escape and has continued at all times to cooperate with the Court.

5. I ruled shortly after the second offender’s escape that he had given up his right under Section 37(5) of the Constitution to be present at his trial, and would, if he were not returned to custody, be sentenced in his absence. A warrant for his arrest was issued but he was not returned to custody. He is sentenced in his absence.

ANTECEDENTS

6. Each offender has no prior convictions.

ALLOCUTUS

7. Moses Dadu made the following address to the court:

I apologise to the Court and to the family of the deceased for what I have done and for breaking the law of this country. It is my first time to appear in Court. I am a villager with cash crops providing me my only source of income. No one is looking after my crops and I feel that people are stealing my business. I ask the Court to give me a short time in custody so that I can go back to the village and look after my business and resolve the issues arising from the incident involving the death. My family has already paid K11, 000.00 cash compensation and two large pigs and store goods and garden food to the relatives of the deceased. I ask that the Court take these things into account when deciding on my sentence. I ask for the mercy of the Court by putting me on a good behaviour bond.

PRE-SENTENCE REPORT

8. The Madang branch of the Community Based Corrections office prepared a pre-sentence report for Moses Dadu. There was no report for Sylvester Dadu due to his escape from custody.

9. Moses Dadu is now aged 22 years. He is the eldest in a family of five children. His father is deceased. His mother is alive and living in the village. He has a grade 7 education. As he explained in allocutus he is essentially a villager and subsistence farmer, earning a small income from sale of cash crops such as cocoa, coconut and betel nut. There is no report of any bad behaviour in the community, prior to commission of the offence. Relatives of the deceased were interviewed and they confirmed payment of the compensation claimed by the offender in allocutus. It is worth noting, however, that the deceased’s mother was not interviewed and it is unclear whether the compensation that has been paid is ‘full’ compensation or whether it is only bel kol or whether there has been any effective reconciliation between the offender and the relatives of the deceased or degree of forgiveness or any other customary resolution of the problems caused by commission of the offence.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mrs Meten submitted that there are substantial mitigating factors: there was no planning involved in the offence, it was a spontaneous incident, the offender has no prior convictions and Moses has cooperated with the Court and made a genuine plea for mercy so that he can settle the matter in the village, he has expressed remorse – which bring the case within the second category of cases recognised by the Supreme Court in Manu Kovi v The State (2005) SC789, and make the appropriate sentence no more than 20 to 30 years imprisonment. Mrs Meten submitted that the two offenders should get the same sentence due to their equal degree of involvement, but that the escape of Sylvester could be accommodated by suspending a substantial part of the sentence for Moses.

SUBMISSIONS BY THE STATE

11. Mr Popeu did not agree that this is a category 2 case according to the Kovi guidelines. It is at least category 3. He submitted that there was a major aggravating factor overlooked by the defence submission, relating to the circumstances of the killing, which was committed in...