The State v Warren Bonsu (No. 2)

• Jurisdiction: Papua New Guinea
• Judge: Geita AJ
• Judgment Date: 07 April 2014
• Citation: (2014) N5571
• Court: National Court
• Year: 2014
• Judgement Number: N5571

Full : CR. 589 of 2012; The State v Warren Bonsu (No. 2) (2014) N5571

National Court: Geita AJ

Judgment Delivered: 7 April 2014

N5571

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 589 of 2012

THE STATE

-v-

WARREN BONSU

(NO. 2)

Maprik: Geita. AJ

2014: 7th April

CRIMINAL LAW – Sentence after trial – Murder –Elements present - Section 300 (1) (a) Criminal Code

CRIMINAL LAW – Public Servants providing vital service to rural communities must be protected by Courts –Be they law enforcing officers or Community Health Workers – Perpetrators must be sternly punished - Prevalence of the crime — Need for punitive and deterrent punishment

CRIMINAL LAW – Sentence after trial – Murder –Serious Aggravating factors present –Dangerous weapon - A 4x2 piece of timber used as a weapon - No regard for human life - Death instant – Sentenced to 20 years - Criminal Code s.300 (1) (a)

Cases Cited

The State v Eliza Ute (2004) N2550

Goli Golu v The State [1979] PNGLR 653

The State v. Joe Foe Leslie Leslie N1496

John Elipa Kalabus –v- The State [1988] PNGLR 193

Kesino Apo v The State [1988] PNGLR 182

Manu Kovi v The State (2005) SC 789

Peter Naibiri and Kutoi Soti Apia v. The State, SC 137

Thress Kumbamong v The State (2008) SC 1017

Ure Hane -v- The State [1984] PNGLR 105

Counsel

Mr. Joel Done, for State
Mr. Francis Fingu, for accused

JUDGMENT ON SENTENCE

7th April, 2014

1. GEITA AJ: The accused pleaded not guilty to the murder of Mark Wabi, at Ambunti Station on 21 February 2012, East Sepik Province. The deceased was a Community Health Worker from Yerakai village also from East Sepik Province.

BRIEF FACTS

2. The brief facts as found during trial for purposes of completeness and conviction on 4 April 2014 are these. On the morning of 21 February 2012 between the hours of 9 am and 10.30 am at Ambunti Station government bridge, East Sepik Province, the prisoner inflicted two blows to the neck and head of the victim with a 4x2 piece of timber, killing him instantly: an indictment under Section 300 (1) (a) of the Criminal Code.

ANTECEDENTS

3. No prior convictions recorded.

ALLOCATUS

4. Upon administering the allocatus pursuant to section 593 of the Criminal Code, the prisoners said:

Warren Bonsu I am Warren Bonsu. This is my first time in court and I ask for leniency. I want to say sorry to my family members and the victims family members. I come from a family of 5 children. My parents are still alive.

The prisoner is a member of SDA faith and comes from Bangus village ESP. He was educated up to Tertiary Education level obtaining a Diploma in Business.

AGGRAVATING FACTORS

5. The circumstances of aggravation in relation to this offence are as follows:

1. Dangerous weapon, a 4x2 piece of timber

2. Prisoner was under the influence of alcohol at the time

3. A life has been lost

MITIGATING FACTORS

6. The factors in mitigation are as follows:

1. Expressed genuine remorse although after trial during allocutus

2. His relatives paid compensation worth K34, 000.00 in cash and kind to the relatives of the victim.

3. First time offenders

SUBMISSIONS FOR AND ON BEHALF OF THE PRISONER

7. In his brief oral submissions Defence Lawyer Mr. Fingu conceded that the crime was serious however invited court to also look into other sentencing options available to it. He submitted that a sentencing tariff within Category 2 and 3 of Manu Kovi v The State (2005) N 789 would be appropriate under the circumstances.

SUBMISSIONS FOR AND ON BEHALF OF THE STATE

8. The State Prosecutor Mr. Joel Done submitted that the upper range of category 3 sentencing tariff in Manu Kovi case (supra) of between 20 to 30 years be considered in light of the seriousness and gravity of the murder. He advanced that a piece of timber was used to inflict the injuries to the deceased’s neck and head. The prisoner pleaded not guilty but was found guilty after trail causing meagre State resources to be used to run the trial. This meant bringing witness down from Yerakai village to Maprik to testify. The killing was brutal and an innocent life taken away. Not to mention that the victim was a public servant, a health worker, going about his daily business when killed. Mr Done submitted that the human life is valuable and the prisoner had no regard to terminate the victim’s life adding that no amount of compensation would return the victim to life and for court’s decision not to be influenced by the payment of compensation. The prisoner was under the influence of alcohol and that the crime of murder was prevalent in Papua New Guinea.

APPLICATION TO THIS CASE

Sentencing

9. Since both counsels have relied on the sentencing tariffs in the case of Manu Kovi (supra) I should point out that another Supreme Court decision of Thress Kumbamong v The State (2008) SC 1017 has departed from the fixed sentencing tariffs pronounced therein. The 2008 Supreme Court was of the view that the proscribed minimum and maximum sentences restricted the discretionary sentencing powers of trial judges. With the greatest of respect I too hold the view that trial judges discretionary powers in sentencing should be jealously guarded and not curtailed, save for Parliamentary intervention. Notwithstanding Thress Kumbamong case (supra) I will hold myself to be guided by the sentencing tariff in Manu Kovi. I set out here under the tariff for ease of reference.

SENTENCING TARIFF FOR MURDER OFFENCES

CATEGORY	WILFUL MURDER	MURDER	MANSLAUGHTER
CATEGORY 1	-15 – 20years	-12 – 15 years	-8 – 12 years
Plea.; -Ordinary cases.; -Mitigating factors with no aggravating factors.	-No weapons used.; -Little or no pre-meditation or pre-planning.; -Minimum force used. -Absence of strong intent to kill.	-No weapons used. -Little or no pre-planning.; -Minimum force used.; -Absence of strong intent to do GBH.	-No weapon used.; -Victim emotional under stress and de facto provocation e.g. killings in domestic setting.; -Killing follows immediately after argument.; -Little or no preparation.; - Minimal force used.; -Victim with pre-existing diseases which caused or accelerated death e.g. enlarged spleen cases.
CATEGORY 2	-20 – 30 years-	-16 – 20 years	-13 – 16 years
Trial or Plea.; -Mitigating factors with aggravating factors.	-Pre-planned. Vicious attack.; - Weapons used.; -Strong desire to kill.	-No strong intent to do GBH.; -Weapons used.; -Some pre-planning; -Some element of viciousness.	-Using offensive weapon, such as knife on vulnerable parts of body.; -Vicious attack.; -Multiple injuries.; -Some deliberate intention to harm.; -Pre-planning.
CATEGORY 3	-Life Imprisonment-	- 20 – 30 years-	-17 – 25 years
Trial or plea; -Special Aggravating; factors.; -Mitigating factors reduced in weight or rendered insignificant by gravity of offence.	-Brutal killing. Killing in cold blood; -Killing of innocent, defenceless or harmless person.; -Dangerous or offensive weapons used.; -Killing accompanied by other serious offence.; Victim young or old.; -Pre-planned and pre-meditated.; -Strong desire to kill.	-Pre-planned. Vicious attack.; -Strong desire to do GBH.; -Dangerous or offensive weapons used e.g. gun or axe.; -Other offences of violence committed.	-Dangerous weapons used e.g. gun or axe.; -Vicious and planned attack.; -Deliberate intention to harm.; -Little or no regard for safety of human life.
CATEGORY 4	- DEATH -	- LIFE IMPRISONMENT-	-LIFE IMPRISONMENT-
WORST CASE – Trial or Plea; -Special aggravating factors.; -No extenuating circumstances.; -No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.	-Pre-meditated attack.; -Brutal killing, in cold blood.; -Killing of innocent, harmless person.; -Killing in the course of committing another serious offence.; -Complete disregard for human life.	-Some element of viciousness and brutality.; -Some pre-planning and pre-meditation.; -Killing of innocent, harmless person.; -Complete disregard for human life.

10. I now move on to consider whether the offence committed by the prisoner was of the worst type and whether the court should impose the maximum prescribed sentence i.e. life imprisonment. To this end I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus [1988] PNGLR 193). Although I agree with the State submission that this act of killing was uncalled for, unwarranted and cowardly and an innocent life tragically lost, I do not consider this murder any more vicious, callous and or gruesome under the circumstances it was carried out. I will not impose the maximum sentence.

11. Secondly, what than should the appropriate sentence be in this case. Having had the benefit of oral submissions from both lawyers on all relevant issues including the mitigation and aggravating...