The State v Philip Eki Vaki (2007) N3464

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 20 July 2007
• Docket Number: CR NO. 130 of 2000
• Citation: (2007) N3464
• Court: National Court
• Year: 2007
• Judgement Number: N3464

Full Title: CR NO. 130 of 2000; The State v Philip Eki Vaki (2007) N3464

National Court: Kandakasi, J

Judgment Delivered: 20 July 2007

N3464

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 130 of 2000

THE STATE

-V-

PHILIP EKI VAKI

Waigani: Kandakasi, J.

2007: 16th, 20th July

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Murder – Killing of security guard in the cause of committing armed robbery – One gunshot at close range – Deceased killed instantly – Prisoner part of armed gang –Gang armed with two factory made high power guns – Prisoner a former soldier -Expression of remorse not in presence of and to deceased family and relatives – No customary compensation paid – Guilty plea – Timing of – First time offender – Earlier conviction for offence committed in the same transaction - Meaning of prior conviction – Conviction for offence committed at the same time as the offence under consideration not prior conviction - Good family background - Meaningful steps taken toward rehabilitation – Becoming member of a Christian church - Christian concepts of forgiveness – Prevalence of offence – Deterrent sentence warranted – Sentence of 30 years imposed – Concurrency of sentence – Same transaction except for different victims.

Cases cited:

Simon Kama v. The State (2004) SC740

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

Simbe v. The State [1994] PNGLR 38

The State v. Raphael Kimba Aki (N0.2) (Unreported judgment) N2082

The State v. Joseph Ulakua (2002) N2240

The State v. Tony Pandau Hahuahori (No 2) (2002) N2186

The State v. Tom Keroi Gurua & Ors (2002) N2312

The State v. Kevin Anis and Martin Ningigan, (2003) N2360

The State v.Peter Plesman and Paul Moaina

Ure Hane v. The State [1984] PNGLR 105

The State v. Ian Napoleon Setep [1997] PNGLR 428

The State v. Yapes Paege & Relya Tanda [1994] PNGLR 65

The State v. Godfrey Edwin Ahupa, (1998) N1789

The State v. Ben Simakot Simbu (No.2) (2004) N2546.

The State v. Danny Mako (2005) N2996

The State v. Robin Warren and Others (No 2) (2003) N2418

Counsel:

M. Kupmain, for the State

P. Aeava, for the Prisoner

25 July, 2007

1. KANDAKASI J : You pleaded guilty to a charge of murder contrary to s.300(1)(a) of the Criminal Code which was committed in the course of committing another serious offence, namely armed robbery on 4th May 1999. You pleaded for leniency and asked for a sentence between 12 and 16 years going by sentencing guides that prevailed before the decision of the Supreme Court in Simon Kama v. The State (2004) SC740 and that, you serve your sentence concurrently with your sentence of 18 years for the offence of armed robbery. On the other hand, the State argues for a sentence of 30 years, given the seriousness of the offence. In so submitting, the State urged the Court to be guided by the sentencing trend in this kind of cases as confirmed by the Supreme Court decision in the Simon Kama case.

The Issue

2. Clearly therefore, the issues for this Court to decide are these:

(1) What sentence is appropriate for you?

(2) In order to resolve the first issue whether this Court should be guided by the decision in the Simon Kama case? and

(3) Whatever sentence, the Court decides to impose against is this an appropriate case for your sentence to be served concurrently with your armed robbery sentence?

3. Before anything else, I consider it appropriate that, I should first decide whether I should be guided by the decision in the Simon Kama case or not. That is a question of what is or are the appropriate guideline or guidelines for me to go by? After having determined that issue, it would be then appropriate for me to decide what sentence is appropriate for you and finally, whether the sentence should be served concurrently with your armed robbery sentence.

Appropriate Guidelines

4. I will now turn to the law and sentencing in murder cases. The offence with which you have been charged, found guilty and convicted of is provided for by section 300(1)(a) Criminal Code. That provision is in the following terms:

“(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 …

….

Penalty: Subject to Section 19, imprisonment for life.”

5. The National and Supreme Courts have in the exercise of the discretion vested in them by s.19 of the Code, have imposed sentences other than life imprisonment and have come up with sentencing guidelines. The National Court in The State v. Laura (No. 2) [1988-89] PNGLR 98 first suggested the following as the appropriate guidelines to be followed for sentencing in murder cases:

1. On a plea of guilty where there are no special aggravating factors, a sentence of six years;

2. Sentences of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused; and

3. On a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

6. In its decision in the case of Simbe v. The State [1994] PNGLR 38, the Supreme Court adopted the above guidelines. Since then both the Supreme and National Courts continued to apply these guidelines to arrive at decisions on sentences in murder cases. In my decision in the case of The State v. Raphael Kimba Aki (N0.2) (2001) N2082, I reviewed sentences in murder cases and said at pages 4-5:

“Clearly, the guidelines set in the Laura No. 2 case, has to be reviewed in the light of the sentencing trends in manslaughter cases as well as the increase in murder cases since those guidelines were set. The guidelines were given on the 3rd of April 1989. That was more than 11 years ago and may now be out dated especially in the number of years to be imposed for each of the categories. Going by the sentences currently being imposed in manslaughter cases, the starting period for murder cases should now be increased to 10 years or more. Thus the guidelines in the Laura No. 2 case should be varied in the following way:

1. On a plea of guilty where there are no special aggravating factors, a sentence of ten years;

2. Sentences of less than ten years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;

3. On a plea of not guilty, a range of sentences from twelve years to fourteen years and more in a case where aggravating factors are evidenced would be appropriate.”

7. In its decision in the Simon Kama case, the Supreme Court endorsed and adopted the views and suggestions I made in Raphael Kimba Aki (No.2) case. The Supreme Court also had regard to the other authorities on point and said at page 22 of its judgment:

“… we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v. Laura (No 2) and Simbe v. The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(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 of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence, [that] may warrant...