The State v Tun Mai Isaac

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 July 2014
• Citation: (2014) N5684
• Court: National Court
• Year: 2014
• Judgement Number: N5684

Full : CR NO 377 OF 2013; The State v Tun Mai Isaac (2014) N5684

National Court: Cannings J

Judgment Delivered: 21 July 2014

N5684

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 377 OF 2013

THE STATE

V

TUN MAI ISAAC

Madang: Cannings J

2014: 13 May, 9, 21 July

CRIMINAL LAW – sentencing – Criminal Code, Section 299 (wilful murder) – conviction after trial – offender killed man by stabbing him in the back during altercation after football grand final – victim offered no provocation and entirely innocent – sentence of life imprisonment.

The offender was convicted after trial of wilful murder. He killed the deceased by stabbing him in the back during an altercation that took place in the late afternoon after a soccer grand final and he intended to kill him. The deceased offered no provocation. He was trying to stop the fight and was entirely innocent. 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: spontaneous incident, not premeditated, no prior conviction, good community record, high degree of co-operation with the court.

(3) Aggravating factors: use of lethal weapon, brutal killing, very deep knife wound, indicating a ferocious attack, killing of defenceless, harmless, entirely innocent person.

(4) The mitigating factors are not sufficiently strong to warrant departure from the starting point, and there is no evidence of reconciliation with the deceased’s relatives. The sentence imposed was imprisonment for life.

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

The State v Mark Bongede (2012) N4683

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 wilful murder.

Counsel

F Popeu, for the State

A Meten, for the offender

21st July, 2014

1. CANNINGS J: This is a decision on sentence for Tun Mai Isaac who was convicted after trial of the wilful murder of a young man, Oilion Feale. The offence was committed at Jahil village, near Madang town, on Sunday 9 December 2012.

2. The offender killed the deceased by stabbing him in the back during an altercation that took place in the late afternoon after a soccer grand final. The deceased offered no provocation. He was trying to stop the fight and was entirely innocent. The medical evidence showed that the deceased died due to internal bleeding caused by a single knife wound 22 cm long, extending from the lower back through the liver, kidney and lungs and exiting the right lower chest. There was no lawful justification or excuse for the offender’s killing of the deceased and he was found to have acted with the intention of causing his death. Hence the conviction for wilful murder. Further details of the circumstances of the offence are in the judgment on verdict, The State v Tun Mai Isaac (2014) N5595.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender made the following address to the court:

After the incident there was talk of reconciliation and I was expecting that the CID officers would come to the village and that all issues would be settled with the assistance of village elders and councillors and family members. However, that did not happen. Instead when I went to the CID I was interviewed and charged and then I was given bail. But when I went to the District Court my bail was revoked.

I spent time in the Yomba Police cell in February 2013 and while I was there, there was a mass escape of 25 remandees. Then I was taken to Beon Jail and in March 2013 there was a mass escape of 43 detainees. I had the opportunity to escape on those two occasions but I refused to escape as I have always been concerned about my mother and my properties.

I am a first-time offender and I have never been in trouble with the court before. I have learned a lot from my experience in custody and in court. I ask for the mercy of the Court so that I can be given probation as this would give me time to sort out the problem and to look after my mother. I am the second last born in the family and there is only my young brother left at home but he is still going to school and there are school fee problems to attend to. There is no one apart from me to look after my mother.

PRE-SENTENCE REPORT

5. Tun Mai Isaac is 23 years old and single. His parents are divorced. His father left his mother several years ago. He (the offender) lives with his mother and his younger brother in the village of his upbringing, Panim, in the North Ambenob area of Madang District. He has a grade 8 education. He earns an income from the sale of cash crops. He is strongly supported by his mother, who remains loyal to him and has difficulty accepting that he would have committed such a serious offence. He is highly regarded in the community. Four senior members of the Panim community visited the Probation Office to vouch for his good character. He is actively involved in sport, church and youth activities and is regarded as an asset to the community.

6. The deceased’s brother, speaking on behalf of the deceased’s family and clan, expressed disgust at the attitude of the offender, who has always falsely denied his involvement in the killing of the deceased. The family and clan would like to see that the offender is severely penalised.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mrs Meten submitted that there are substantial mitigating factors – it was a spontaneous incident, he is a first-time offender, he has cooperated with the Court, he has made a genuine plea for mercy so that he can settle the matter and look after his mother – 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 years imprisonment.

SUBMISSIONS BY THE STATE

8. Mr Popeu did not agree that this was a category 2 case according to the Kovi guidelines. Although it was not a pre-mediated killing, which means that the death penalty may not be appropriate, and there are some aspects of the per-sentence report that are favourable to the offender and he has no prior conviction the very serious aggravating factor is that the deceased was entirely innocent. A death in these circumstances warrants a sentence of life 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 should the head sentence be?

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

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

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. The maximum penalty for wilful murder under Section 299 of the Criminal Code is death. The court has a discretion whether to impose the maximum by virtue of Section 19(1)(aa) of the Criminal Code, which states:

In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided … a person liable to death may be sentenced to imprisonment for life or for any shorter term.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. The Supreme Court has in two recent cases given sentencing guidelines for wilful murder: Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J and Lay J) and Steven Ume, Charles Kaona & Greg Kavoa v The State (2006) SC836 (Kapi CJ, Injia DCJ, Los J, Hinchliffe J and Davani J).

The Ume guidelines

12. In Ume the Supreme Court suggested that a number of different scenarios may warrant the death penalty, eg (1) killing of a child, a young or old person, or a person under some disability needing protection; (2) killing of a person in authority or responsibility in the community providing invaluable community service killed in the course of carrying out their duties or for reasons to do with the performance of their duties; (3) killing of a leader in government or the community, for political reasons; (4) killing of a person in the course of committing other crimes; (5) killing for hire; (6) killing of two or more persons in a single act or series of acts; (7) killing by a prisoner in detention or custody serving a sentence for another serious offence of violence; (8) if the offender has...