State v Anis [2003] PGLawRp 8; [2003] PNGLR 341 (7 April 2003)

NATIONAL COURT OF JUSTICE

THE STATE

V

KEVIN ANIS AND MARTIN NINGIGAN

WEWAK: KANDAKASI J

1-2, 4 and 7 April 2003

CRIMINAL LAW – PRACTICE & PROCEDURE – Defence consenting to admission of witness statements as evidence for the State – Effect of – Fair hearing within the meaning of s 37(3) of the Constitution means fair notice of defence to the State and its witnesses – Rule in Brown v Dunn considered and applied – Defence evidence not put to State witness loses credibility – Court at liberty to find in terms of the uncontested evidence without or little regard to defence evidence – s 37(4) Constitution.

CRIMINAL LAW – Murder and unlawful wounding from failed armed robbery on highway – Two different vehicles and two different victims – Defence of compulsion raised - Whether the accused acted under compulsion only issue for trial – State's case uncontested and statements of witnesses and records of interviews admitted into evidence with consent of the accused – Accused giving sworn evidence raising defence of compulsion with details for the first time – Defence of compulsion not put to the State witnesses – Rule in Brown v Dunn considered – Inconsistencies in accused evidence and records of interview – No logical explanation offered by accused for being approached by accomplishes at the first place – Accused evidence rejected as not being credible – Verdict of guilty returned – s. 37(3)Constitution - s. 32 (1)(d) Criminal Code.

CRIMINAL LAW – Sentence - Murder and unlawful wounding from failed armed robbery on highway – Two different vehicles and two different victims – Defence of compulsion raised – Conviction after a trial – No prior conviction only clear mitigating factor – Pleas of youthfulness rejected due to prevalence of offence by youthful offenders - Claim of not playing a major part in the commission of offence rejected because of s 7 of the Code – Mere utterance of sorry after conviction following trial meaningless – 32 years concurrent sentence less time spent in custody awaiting trail and sentence imposed - ss. 7, 300 and 322 Criminal Code.

Facts

In the early hours of the 21 October, 2001, between 12:00 midnight and 2 am, an armed gang of six men attempted to hold up two motor vehicles travelling on the Sepik Highway at Maringe, in the Yangoru District of this Province. The first motor vehicle was a Mitsubishi Canter truck, white in colour. The second motor vehicle was a "PMV", a Toyota Dyna truck. That vehicle followed shortly the first vehicle in the same direction as the first, heading for Wewak from Maprik way. The gang's aim was to hold up the trucks and steal from their occupants, vanilla and other properties. The gunshots fired at the two separate vehicles resulted in head injuries, requiring a number of stitches to a Philip Mali Kindo. Mr. Kindo was a passenger in the first vehicle and the gunshot fired by the gang reached him on his head. The gunshot at the second vehicle resulted in the death of a passenger in that vehicle, namely a Jim Patiken (the deceased). The accused were charged for murder.

Held

1. Both accused found guilty as charged on one charge of murder and another of unlawful wounding respectively contrary to ss 300(1)(b)(i) and 322(1)(a) of the Criminal Code.

2 Life imprisonment is the maximum prescribed for murder under s 300 and 3 years is the maximum for unlawful wounding under s 322 of the Criminal Code .

3. The sentence of 50 years given in The State v Tom Keroi Gurua & Ors (11/12/02) N2312 is a relevant consideration. The period in prison spent in cell awaiting trial is deducted and ordered to serve the balance of 36 years 6 months and 15 days in hard labour at the Boram CIS.

Papua New Guinea cases cited

Allan Peter Utieng v The State (23/11/00) unreported judgement of the Supreme Court delivered in Wewak in SCR 15 of 2000.
John Jaminan v The State (No. 2) [1983] PNGLR 318.
Peter Naibiri & Anor v The State (25/10/78) unreported SC137.
Simbe v The State [1994] PNGLR 38.
Tapea Kwapena v The State [1978] PNGLR 316.
The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266.
The State v Edward Toude & Ors (No 1) (16/10/01) N2298.
The State v Tom Keroi Gurua & Ors (11/12/02) N2312.
The State v Tony Pandau Hahuahori (No 1) (19/02/02) N2185.
The State v Tumu Luna (20/05/02) N2205.
The State v Angela Colis Towavik [1981] PNGLR 140.
The State v Joseph Ulakua (23/05/02) N2240.
The State v Laura (No. 2) [1988-89] PNGLR 98.
The State v Micky John Lausi (16/02/01) N2091.
The State v Ngetto Rex Rongo (20/12/00) N2035.
The State v Tony Pandau Hahuahori (No 1) (19/02/01) N2185.
The State v Wesley Nobudi & Ors (unreported and unnumbered judgement delivered on 19/12/02) in CR 1174 of 2000.
Vaii Rocky Maury v The State (20/07/01) SC668.

Other cases cited

Browne v Dunn (1893) 6 R 67 (HL).

Counsel

M Ruari, for the State.
G Korei, for the accused.

4 April 2003

Kandakasi j. The two of you pleaded not guilty to one charge each of murder and unlawful wounding contrary to ss300(1)(b)(i) and 322(1)(a) of the Criminal Code. A trial therefore took place on 2nd of April after having arraigned both of you the previous day.

You claim to have acted under compulsion or in simple terms, at the threat and or force of another person. That was the only issue for trial. This meant that everything else about these offences stood uncontested.

The uncontested evidence is this. In the early hours of the 21 October 2001, between 12:00 midnight and 2am, an armed gang of six men attempted to hold up two motor vehicles travelling on the Sepik Highway at Maringe, in the Yangoru District of this Province. The first motor vehicle was a Mitsubishi Canter truck, white in colour. The second motor vehicle was a "PMV", a Toyota Dyna truck. That vehicle followed shortly the first vehicle in the same direction as the first, heading for Wewak from Maprik way. The gang's aim was to hold up the trucks and steal from their occupants, vanilla and other properties.

A John Yuibiri and another only identified as a Sakarias appear to be the leaders of the gang. They were the ones who had a 303 rifle and a home made gun. They approached a number of young men, including you two for the purpose of executing a planned hold up of vehicles travelling on the Sepik Highway. They are also the ones that appear to have stepped in front of the two vehicles from their hiding when the vehicles respectively appeared at the scene of the crimes. It is also clear that they are the ones that shot at the vehicles when their drivers failed to stop at their command.

The gunshots fired at the two separate vehicles resulted in head injuries, requiring a number of stitches to a Philip Mali Kindo. Mr. Kindo was a passenger in the first vehicle and the gunshot fired by the gang reached him on his head. The gunshot at the second vehicle resulted in the death of a passenger in that vehicle, namely a Jim Patiken (the deceased).

Immediately upon the shooting dead of the deceased, the gang including you two, escaped back into your village, Merenge, which is also in the Baimuru area where Maringe, the scene of the crimes, is also located. The rest of the gang, including Mr. John Yuibiri escaped back into your own villages.

Following report of the incident to the police by the drivers of the two vehicles and their passengers, police came to your village. Whilst in the presence of the police, your village leaders got you two and the rest of the young men in the village to account for your whereabouts at about the time of the robbery. Through this process, you admitted your involvement and the police arrested you and had you charged over the incidents. Mr. John Yuibiri was also apprehended with your help in terms of you identifying him and his village.

In your records of interview, you admitted to your involvement both in the planning and the attempted execution of the armed hold up. Except for a brief mention without anything further in Martin Ningigan's record of interview of some force being used to secure your involvement, there is otherwise no detailed account of any force being used by John Yuibiri and his other gang members against the two of you. However, in your defence at the outset of the trial and later in your evidences you claimed being forced into the attempted hold up that went bad by John Yuibiri at gun point for over 6 hours. This is the very and only issue for me to determine on the basis of which your guilt or innocence lies.

I therefore start with the question of what is the evidence before me on this? For the State there are a number of witness statements admitted into evidence. They consist of a total of 14 witness statements marked as exhibits "A" to "M" and your respective records of interview marked as exhibits "O1 to P2".

Your evidence against the State's evidence is your own respective sworn testimonies orally given in Court on Wednesday the 2nd of this instant.

Apart from providing the basis for the undisputed facts as noted above, the evidence for the State is simple. You were free and willing participants both in the planning and execution of the armed hold up of vehicles on the Sepik Highway at Maringe that went wrong, resulting in the death of the deceased and injury to Mr. Kindo. The statement of Mr. Bunbun says, he saw six men trying to effect a hold up of the first motor vehicle, which was driven by him. He says two men ran out on the road, another two each on either side of the motor vehicle. This is supported by Tobias Teddy's statement, who says he saw a total of six men trying to hold up the vehicle he was travelling on. That was the vehicle in which the deceased was. Another passenger in the same vehicle as the deceased, Mathew Giort confirms there were six men trying to effect the hold up and failing that, shot the deceased dead.

Alois Nauruangi's statement speaks of seeing a total of about four men, one first running out onto the road with a gun from the left, running to the right while three others approached from the left side of the road. The driver continued to drive on and the men with the gun on the right side fired the gun at close range and shot dead the deceased. This witness was the deceased's brother travelling with him at the back of the vehicle.

The statement of the driver of the second vehicle, Mr. Harry Manmale states that he saw three men coming out onto the road with one of them carrying a gun. He therefore realized that it was an armed hold up so he tried to run the man with the gun down by driving straight at him. That caused the vehicle to go off the road but he managed to get it back on the road. However, that proved a little too late for the deceased because he was shot at that stage and he died on the spot at the scene.

Away from the scene of the crime is the statement of Wesley Walehambe. He is a villager from the same village as Mr. John Yuibiri, namely Niakandokum. His statement speaks of meeting up with Mr. Yuibiri on the 21 October, 2002. He says, at that time, Mr. Yuibiri was with a 303 rifle. Mr. Yuibiri asked this witness to join in the armed hold up of vehicles on the Sepik Highway plan but he refused to do so. He was therefore left alone. He subsequently learned of the failed-armed robbery involving Mr. Yuibiri.

Another statement away from the scene of the crime is that of Mark Ningiura's. He speaks of learning of the incidents on the early hours of the morning of the 22 October 2002. He is a Village Development Committee member in the Baimuru area. He says, upon the instructions of the village leader in the area including your own small village of Merenga, sounded the garamut and called the villagers to a meeting. Whilst they were gathering and talking about the incident, police arrived at the village and joined them.

Upon the inquiry of the villagers, it was revealed that John Yuibiri used to stay with both of you. As soon as that was revealed, you admitted to being involved in the incident with John Yuibiri. On that basis, both of you were apprehended by police and taken into their custody. Your admission was carried through in your records of interviews with the police. This is confirmed for example, in the record of interview between police and Kevin Anis, particularly in answer to question 30. The answer to this question clearly states that, though Mr. Anis wanted to go and give his mother's betelnuts, he was persuaded to join the gang to go and conduct the armed hold up. The most important part of the response is this:

"Then we all agreed and went to the road and we stopped the first truck and it did not stop, so we stopped the second truck, John and Sakarias aimed or pointed the guns at the second truck hoping it will stop, but did not so I heard a shot being fired."

Also in answer to question 31, Kevin Anis admitted to being armed with a bush knife.

In both of your oral evidences which are identical, you both claim that you freely went and met with John Yuibiri and his gang at the river. There you were informed of the plan to conduct armed hold ups on the Sepik Highway. You say you refused to participate. The gang did not accept that as you were already informed of their plan and in fear of you reporting them to the police, they placed you under gunpoint and forced you to be with them. You say throughout a period of about 6 hours, you were under gunpoint and under close watch. This you claim continued even during the two attempted hold ups. You also claim that due to fear of being shot at, you did not take any steps to run away or doing something like that to remove yourselves from the scene of the crime.

From these evidences, I now need to decide whether you acted under compulsion, within the meaning of s 32 (1)(d) of the Criminal Code?

Section 32 of the Code reads:

"32 Justification and excuse: Compulsion.

(1) A person is not criminally responsible for an act or omission done or made —

(a) in execution of the law; or

(b) in obedience to the order of a competent authority that he is bound by law to obey, unless the order is manifestly unlawful; or

(c) when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another person in his presence; or

(d) when he does or omits to do the act —

(i) in order to save himself from immediate death or grievous bodily harm threatened to be inflicted on him by some person actually present and in a position to execute the threats; and

(ii) believing himself to be unable otherwise to escape the carrying of the threats into execution, but this protection does not extend to an act or omission that would constitute an offence, punishable with death or the offence of wilful murder or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself liable to have such threats made to him.

(2) Whether an order is or is not manifestly unlawful is a question of law."

I discussed this provision in The State v Micky John Lausi (16/02/01) N2091. In that case, I considered judgements of both the Supreme and National Courts and noted that the Supreme Court held in Tapea Kwapena v The State [1978] PNGLR 316 at 321, that the test to be applied is a subjective one. This is because what matters is what the person is faced with an actual or threatened harm or danger to this person in the particular or given circumstances of any one given case. This was adopted in The State v Angela Colis Towavik [1981] PNGLR 140 on page 146 in the context of the defence of compulsion under the equivalent of s32(1)(c). In the case Frost J discussed in detail the provision in question particularly as to its meaning, which I accept as a correct interpretation of what Parliament may have intended.

In the context of your case, the provisions of subsection (1)(d) are relevant. In respect of that provision, I said in the Micky John Lausi (supra) case that:

The protection under this provision in my view is similar to the one provided for under subsection (1)(c) but differs in the following respects:

1. There must be an immediate threat of death or grievous bodily harm;

2. The threat must be directed at the accused himself;

3. The threat is from a person capable of executing the threat;

4. The person posing the threat is physically present at the time of the threat;

5. The accused must believe that, he is unable to escape from the effects of the execution of the threats unless he acts in the way he has."

Before deciding whether you can benefit under the protection provided for under s32 (1)(d), I must first find whether the facts disclose a case of you being forced and or being given no choice but to be at the scene of the crime as you claimed. This requires a careful assessment of the evidence now before me, applying the relevant and applicable principles of law to assist me.

Once again, the case for the State in terms of the various witness statements, you agreed to be tendered into evidence against you is simple. You were free and willing participants, both in the planning and execution of the failed-armed robbery. The first time there is an introduction of you being forced is in the record of interview between Martin Ningigan and the police. But that seems to have been overcome, in that the two of you went along with the rest of the gang members and its leaders. No details of the alleged force is given in the record of interview, although you were given the opportunity to say whatever else you wanted to say about the incident and your involvement.

The next place in which you take up your claim of acting under compulsion from John Yuibiri and his other gang members is at the commencement of the trial followed by your sworn testimonies. Both of you claim that you were both placed under gunpoint for about six hours. You even claim that you were watched over during the execution of the attempted hold up of two separate vehicles, travelling on the same highway at the same scene, with one of the vehicles following almost immediately after the other.

This requires an assessment of the credibility of your evidence and therefore your claim. It is trite law that, common sense and logic plays a major role in determining whether a witness and therefore his evidence are credible. I noted that in these terms in The State v Cosmos Kutau Kitawal & Anor (No 1) (15/05/02) N2266:

"Logic and common sense does play an important part in either the rejection or otherwise of evidence before a court of law and whether or not an accused person should be found guilty. In The State v Gari Bonu Garitau and Rossana Bonu [1996] PNGLR 48, applying a logical and common sense approach, the National Court found the defendants guilty of murder even when there was no evidence directly showing that the defendants had killed the deceased. The Court proceeded to convict them, when the defendants' failed to provide a reasonable explanation for the appearance of the badly wounded deceased body in their house. On appeal, the Supreme Court affirmed the National Court's approach and dismissed the appeal: see Garitau Bonu & Rosanna Bonu v The State (24/07/97) SC528 and Paulus Pawa v The State [1981] PNGLR 498 for an earlier authority on point."

It is also trite law that, in order for a party's claim to be considered credible, he must in fairness put his case or claim to the others' witness by way of cross-examination. This is in effect what is meant by a "fair hearing in s37 (3) of the Constitution, which is in turn in my view, a codification of the rule in Browne v Dunn (1893) 6 R 67 (HL). Where a party fails to do that, his or her subsequent claim loses credibility and is therefore not reliable. The Supreme Court in John Jaminan v The State (N0.2) [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J, who stated that position in these terms in the context of a belated claim of alibi:

"Firstly, the alibi was never put to the key State witnesses, particularly the prosecutrix and Maria who gave evidence ... The importance of putting one's case to the opposing party's witnesses has repeatedly been emphasized in Papua New Guinea: see The State v Saka Varimo [1978] PNGLR 62 (Prentice J) and The State v Manasseh Voeto [1978] PNGLR 119 (Wilson J). If it is not done, the weight of the evidence given by the party in this case the accused is reduced."

In your case, you did not put your claims to the State's witnesses. You instead agreed to the various State witnesses' statements going into evidence without any cross-examination. This was despite the Court querying the appropriateness of that approach given your defence. It follows therefore, in accordance with the well-established authorities in our jurisdiction, that the weight of your evidence, if any, is reduced.

Further, the basis of your consent to the State's witnesses' statements going into evidence without any cross-examination, amounts to no challenge on the credibility of the evidence they contain. In The State v Edward Toude & Ors (No 1) (16/10/01) N2298, I had a similar situation before me and I said these in relation to that case:

"By your own conduct, you chose not to test the prosecution's case and in fairness put your respective cases to the prosecution, in line with the principle in Brown v Dunn (supra). As a result, you all were at no liberty to call evidence in rebuttal of the prosecution's case, per the evidence you agreed to. Nevertheless, you did call evidence by each of you taking the stand in the witness box and called Gerald in your defence. It would be most unfair for me to accept your oral evidence, when in fairness you did not put the effect of your evidence to the State's witness. Besides, it will run contrary to your own acceptance of the State's evidence as being correct by consenting to their admission and not taking any issue on them.

At the same time, I note that it is also clear law that just because the whole or part of a party's evidence has been admitted into evidence by consent of a party or is not rebutted in any way, does not automatically follow that the court must accept it and act on it. Instead, the Court has the duty to assess the evidence and make a finding as to whether the evidence presented is credible and is of such weight that it can safely be acted upon. This means that, in the context of a criminal case, the court must assess the evidence and then decide if the evidence establishes the prosecution's case beyond any reasonable doubt. If the Court is satisfied that the evidence does establish the charge or indictment presented beyond any reasonable doubt, it must return a guilty verdict. If, however, the evidence falls short of that, a not guilty verdict must be returned. See The State v Kauva Lavau & Kamo Kauva (unreported judgement 26/09/96) N1523, for an example of a Court doing that"

These observations equally apply here. As noted, you do not challenge the State's evidence in any way. The only exception is in relation to what appears to be some inconsistencies in the number of men trying to execute the failed-armed hold ups. I find this to be of no consequence for a number of reasons. First, the attempted hold ups occurred in the night. It was therefore not possible to see clearly except for those who came in the view of the vehicles' lights. Hence, it is reasonable to expect some discrepancies in this area. Secondly, when an armed hold up takes place, no one takes the time to survey the scene so as to find out who is conducting the hold up and how many are involved. The victims can only identify and or tell only the number of persons coming into their view or are otherwise able to tell. Thirdly, there is no dispute that 6 people were at the scene of the crime. The only dispute is that you two were not active participants but were victims of the gang's threats. The evidence from the eye witnesses in the form of the statements from the victims of the attempted hold up, speak of 6 men attempting to put up the armed hold up. This is from three of the victims. You also confirm in your own evidence that there were 6 of you altogether.

There is also the unchallenged evidence from the driver of one of the vehicles being the subject of the armed hold up attempt that, he drove straight into the man with the gun on the road. From this, it is reasonable to infer that the man with the gun had to respond to that and take steps to avoid being run down. This could then have made it difficult for the gunman to continue to have you two watched over and at the same time attempt to hold up the vehicles and avoid being run down by one of the vehicles.

Other unchallenged evidence for the State also cast some doubts over the credibility of your claims. First is the evidence of your village leader, Mr. Mark Ningiura. His statement is that the villagers inquired into the incident at his call. Through that process, it was ascertained that John Yuibiri had being staying with you two in the village. Also through this process, both of you admitted to being involved in the attempted armed hold ups, resulting in the unlawful wound of a passenger in one vehicle and the murder of another in the other vehicle. You do not take any issue at all with this evidence. This is to be contrasted with both of your oral evidences that, you had no prior dealing with John Yuibiri.

In The State v Tony Pandau Hahuahori (No 1) (19/02/02) N2185, I heard that, where village leaders assist police to apprehend offenders, good reason must be provided to reject the correctness of the village leaders' identification and apprehension of the offenders. You have provided no evidence to demonstrate any error or reason for fabrication or such like against you in your leader's statement.

If indeed you were forced to be with the gang as you claim in your oral evidence, logically you could make that clear at the earliest opportunity, which was to your own villagers and leaders at the time of your admission but you did not. It is an inevitable human habit to come up with an excuse on the first opportunity for any error or omission on their part if they have one, rather than at a much later time. The only explanation you provide is that, because a man was shot dead you were scared. If therefore you were in fact scared you could have come with an excuse to avoid being held responsible. What you did defies common sense and logic.

Secondly, in your record of interview, it is clear at least, the one between Kevin Anis and the police that you both agreed to be part of the hold up plan and its execution. That is despite some initial objections. There is no suggestion of any force or threat used to secure your involvement. Mr. Anis also speaks of having being armed with a bush knife. When asked in cross-examination to explain that, you gave the same excuse of being under fear as a man was shot dead. What I said in relation to the evidence from your village leader's evidence equally applies here.

Thirdly, if your claim of not having anything to do with John Yuibiri prior to him approaching you for the planned hold up is true, then you have not satisfactorily explained why he chose to come to you for help or even seek to involve you. I find what the Supreme Court said and did in dismissing an appeal against a conviction in Vaii Rocky Maury v The State (20/07/01) SC668 of some persuasion. It found nothing wrong with the National Court's finding in these terms:

"First of all, he had to be best friends of the people in the vehicle in order to stop for him. There was no protest when they did not stop for him to get out. There was little to no protest at the robbery scene. Despite the excitement, he dozed off to sleep then he woke up when he heard gunshot, one of which injured his leg."

That was in relation to a claim by the appellant that, an armed gang, which eventually conducted an armed hold up, followed by a shoot out between police and the gang, picked him up. But he was not part of them and was not a participant in the armed hold up. The shoot out resulted in a gunshot injury to his leg. The Supreme Court in so doing said:

"The undisputed facts give us the clear impression that, those who were in the vehicle had come with a plan to carry out a robbery and escape in a stolen vehicle. They were armed with guns and were prepared to use them to get away after the robbery. Given that, it was not possible and indeed common sense dictates that the appellant could not have been picked up in the way he describes.

Robbers in most cases act with people who have set out to commit such an offence together. They do not normally take on other and innocent people unless abducted or otherwise taken against their will."

I am of the view that these observations equally apply to your case. Even if you were involved under threat from the gang, the question remains unanswered as to why pick the two of you to, as you say, show them the bush track to the highway. As the Supreme Court observed in the case just cited, criminals do not take along unwilling and strangers to effect or carry out a criminal activity. They usually involve people they know well enough and are of the same mind to commit an offence. The only logical explanation for your involvement is that which comes, both directly and inferentially from the unchallenged evidence of your village leader. John Yuibiri had been staying with you and you all planned and attempted to execute your armed hold up of vehicles travelling on the Sepik Highway at Maringe.

Fourthly, I cannot easily find the logic or the common sense behind the gang trying to involve Kevin Anis, when they already had Martin Ningigan to do exactly what was required of Kevin Anis. If this is true, then the gang was taking a big unnecessary risk to involve two unwilling participants. That as the Supreme Court observed in the Vaii Rocky Maury's (supra) case, was against any logic and common sense and certainly therefore goes against the usual conduct of criminals.

Fifthly, even if you were under threat, I am of the view that you could have easily escaped. This in my view was possible because all this happened in the night. Therefore you could have easily escaped in the night since the darkness could have made it difficult for the gang to find you. This is strengthened by the fact that there is no evidence of any lighting or that you wearing a white shirt or short that could have easily identified your presence. In addition to the darkness, there is also your own evidence of you going through a bush track and appearing from the bushes to attempt the hold ups. I find this presented to you with an additional opportunity to escape but you did not. Furthermore, according to your evidence that you two alone knew the area well, that is why you were forced to help them. If this is true, then that provided an addition factor in favour of escaping. Still further, I cannot possibly believe that the gunmen constantly had their eyes on you for the full 6 hours you speak of. They could have taken a break or answered nature call or something like that. Even further, as far as your mother and others in the village were concerned, Kevin Anis had gone to get some betelnuts for the mother. He was therefore expected back in the village. Certainly the passage of 6 hours could have resulted in a search party. There is no evidence of there being a search conducted for you and there is no explanation for this.

Sixthly, even if you were under threat, that threat or force had every opportunity of ceasing once the gang's concentration was on conducting the hold up. For they could not have easily kept a watch over you and conduct the hold up attempt at the same time. I do not accept that there was continuing threat merely by your claim of an unarmed man, Amos watching over you at the time when the armed men, John and Sakarias were out on the road, conducting the attempted hold up and shooting into the escaping vehicles at two different intervals. When this is put together with the State's uncontested evidence of six men seen conducting the attempted hold up, the doubt is all the more stronger.

Given these factors, I am not persuaded that there is truth in what you two have claimed in Court. Instead, I find that your claims amount to a belated attempt at eliminating your culpability. In so doing, you two have told a story that defies any sense of logic and common sense. At the same time, your oral testimonies contradict what you have already told the police in your record of interview and what you told the village leaders soon after the incidents. Neither of these evidences has been challenged. You accepted their accuracy and therefore their credibility.

I am satisfied beyond any reasonable doubt on the basis of the evidence before me that you were involved in the failed-armed hold ups at Maringe on the Sepik Highway in the early hours on the 22 October, 2002. I am also satisfied beyond any reasonable doubt that failing the two attempted hold ups, the gang of which you were a part, shot at the first vehicle, resulting in injuries to Philip Mali Kindo, a passenger in the first vehicle. I am likewise satisfied that, the gang of which you were a part, shot at the second vehicle, resulting in the instant death of the deceased, Jim Patiken. I further find that your belated claims of acting under compulsion are incredible because these were not put to the State witnesses and in any case, it defies any sense of logic and common sense. I therefore find that, you were free and willing participants in the commission of the offences. I therefore find that you have not made out your defence under s32(1)(d) of the Criminal Code.

Even if your claims of being forced by the gang were found to be credible, it would not afford you any defence within the meaning of s32(1)(d) of the Criminal Code. The reason for this is simple. First, as I have noted already, the threat was not necessarily continuous. Secondly, you had opportunity to escape from the alleged threat by reason of darkness, two consecutive attempted hold ups being conducted almost one after the other and that you knew the area better than the other gang members.

All of these at the end dictate only one conclusion. You were free and willing participants of the plan to conduct armed hold ups on the Sepik Highway at Maringe on the 22 October, 2002. You then proceeded to execute the plan against two different vehicles but failed. Your gang therefore shot at the vehicles, resulting in a gunshot injury to Philip Mali Kindo, who was a passenger in the first vehicle and instant death to Jim Patiken, a passenger in the second vehicle. By reason of ss7 and 8 of the Criminal Code, you are both guilty of the charge of unlawful wounding and murder, as is the person that actually pulled the trigger. I therefore return a verdict of guilty on both charges against both of you and accordingly, convict both of you on the charges presented against you.

Decision on Sentence
4 April, 2003

The Court found both of you guilty on one charge of murder and another of unlawful wounding respectively, contrary to ss 300(1)(b)(i) and 322(1)(a) of the Criminal Code. This was after a trial.

The relevant facts are set out in the decision on verdict. I therefore need not restate them, except where necessary for the purposes of determining an appropriate sentence for you. Accordingly, I will descend straight into a review of the kind of sentences that have been imposed lately in similar or cases coming closer to the present for the current sentencing tariffs.

We start with the provisions of s300(1)(b)(i) and 322(1)(a) of the Criminal Code. Life imprisonment is the maximum prescribed for murder under s300 and 3 years is the maximum for unlawful wounding under s322.

I reviewed the sentencing trends for murder in the case of The State v Ngetto Rex Rongo (20/12/00) N2035. That started with the National Court judgement in The State v Laura (No. 2) [1988-89] PNGLR 98, which suggested guidelines for sentencing on a guilty plea in terms of:

(a) where there are no special aggravating factors, a sentence of six years;

(b) a sentence 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

(c) 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.

In that case the defendant pleaded not guilty to a charge of murder under s300 (1)(a) and was found guilty after a trial. He received a sentence of eight years where there were no special factors in aggravation or mitigation.

I also noted that the Supreme Court in Simbe v The State [1994] PNGLR 38, a case cited by your lawyer, adopted the guidelines set by the Laura No. 2 (supra) case and applied them. That was in the context of an appeal against a sentence of 14 years following a plea of guilty to a charge of murder.

I then had a look at other cases on point and said:

"One thing that is apparent through these cases is the principle that, the guidelines are only guidelines. Each case has to be determined on its own facts."

I also noted in that case that most of the cases on murder attracted varying years of sentence from 4 years to life imprisonment and decided to impose a term of 6 years imprisonment. That was in a case of the prisoner killing his wife out of a straightforward domestic argument by using a piece of wood. He had no prior conviction and pleaded guilty.

Since the above case, there has been an increase in sentence for murder cases. Jalina J. (from His Honour's Circuit report), imposed a 20 years sentence on a guilty plea to the murder of a person who was believed to be a sorcerer. His accomplish who participated in the planning to kill and being present at the scene, was given a sentence of 18 years. This was only in April, 2002.

In The State v Joseph Ulakua (23/05/02) N2240, a judgement I delivered here in Wewak, I imposed a sentence of 20 years. In that case, the prisoner killed his wife after she had run away from him, after allegedly having an affair with some man in the prisoner's own village. He pleaded guilty to the charge and had no prior conviction.

Then as I noted in The State v Tony Pandau Hahuahori (No 1) (19/02/01) N2185, Sevua J imposed a sentence of 30 years each to Mr. Tony Pandua Hahuahori's accomplishes. That was in a case of an attempted-armed hold up of a PMV also on the Sepik Highway going wrong. A number of passengers in the PMV sustain a number of injuries with one of them losing one eye and another dying from gunshot injuries. Both prisoners pleaded guilty and appeared not to have had any prior convictions. But Mr. Tony Pandua Hahuahori denied the charge against him and was found guilty after a trial. He also had a prior conviction for arson. He was therefore given a sentence of life imprisonment.

More recently, Kirriwom J in The State v Tom Keroi Gurua & Ors (11/12/02) N2312, imposed a sentence of 50 years on the first two prisoners and 20 years on the third. This was in a failed abduction turning into murder by all first time offenders. They were all relatively young offenders although the first two were older than the third. The first two were the main instigators and actors.

This clearly shows a trend of increased sentences, especially in cases where a person is killed in the course of pursuing another unlawful purpose. Likewise, there is an increase in the kind of sentences that are being presently imposed against armed robbers. This is reflective of the fact that there is so much killing, almost every day in the course of other unlawful purposes such as armed robberies. This is disastrous for our country. The adverse effects of such violent crimes as murder, armed robbery and rape on the country as a whole, has been adequately expressed in numerous judgements of both this and the Supreme Courts, including some of my own. It is not necessary to repeat them. Sufficient only to say that society is saying enough is enough and that such offenders should be dealt with severely.

As I said in The State v Joseph Ulakua case (supra):

"Parliament made no mistake in prescribing life imprisonment for someone who takes away any other person's life without any lawful excuse or one that is not permitted by law. The onus is therefore in my view, on a prisoner to show why he should not be given the prescribed sentence and make a case for it. Yes, of course, some might argue that this suggestion goes contrary to the presumption of innocence. The response simply to that is, take a good look at the wording in the relevant provision of the Constitution and you find that, that presumption is only in relation to guilt. Once guilt is established or admitted, the presumption no longer exists."

Bearing all of the above in mind, I now turn to your case and ask what are the factors against you and what are the factors in your favour. I will deal firstly with those factors that appear to be in your favour. Firstly, you are both first time offenders. It is settled law that, such a factor operates in favour of offenders like you two in terms of reducing the sentence you should otherwise receive.

Secondly, you both appear to be relatively young. But I find persuasion in what Sevua J has recently said in The State v Wesley Nobudi & Ors (unreported and unnumbered judgement delivered on 19/12/02) in CR 1174 of 2000 at p.15. His Honour said:

"I do not consider that "youth" can still be a good mitigating factor in serious cases like wilful murder. In Paulus Mandatititip & Anor v The State [1978] PNGLR 128, the Supreme Court said that deterrent sentences are required where the offence is prevalence and the youthful offenders should not receive special treatment unless there are exceptional circumstances which warrant a term of imprisonment other than life imprisonment, if not the death penalty."

With this, I agree and add that enough warning has already been given to youthful offenders who commit serious offences like, murder, rape and robbery. Yet of the category of offenders committing such serious offences are youthful offenders, in the range of 15 to 20 years. As the Supreme Court noted in Peter Naibiri & Anor v The State SC 137, 25 October 1978, people in Papua New Guinea who fall into the age group 17 to 19 already assume adult responsibilities. Accordingly, they should be treated as such. I am thus of the view that the plea of youthfulness should not be a feature in your favour in determining an appropriate sentence. You both claim to be 19 years old now. If that is correct, you were about 18 years old when you committed the offences under consideration. You appear old enough to me to know that what you were doing was wrong and was against the Law and the society.

Thirdly, you appear not to have taken the lead role in the planning and execution of the failed armed hold up that ended up in the unlawful wounding and murder of passengers in two separate vehicles. I nevertheless note that according to your own evidence, you knew the area well and that the gang was depending on you to execute the failed robbery and end up committing the offences for which you were found guilty. So it follows that without the part you played, the attempted robbery and the unlawful wounding and murder could not have occurred. In any case, I note that you have no serious argument against the application of s. 7 of the Code, which makes you principles all the same, regardless of the parts you may have played. What this means is that, this factor is not necessarily a strong factor in your favour.

Fifthly, I note your plea, particularly by Kevin Anis for the interest of your family who might be caused to suffer if you are given a longer prison term. This factor should however, have been taken into account before the commission of the offences. The Supreme Court has made that clear in Allan Peter Utieng v The State (unreported judgement of the Supreme Court delivered in Wewak 23/11/00) in SCR 15 of 2000.

Finally, I note your saying sorry for what you have done. But I am not too sure whether the person you unlawfully wounded and the relatives of the man your gang shot dead, attended Court to hear you say that. Also I have nothing before me to show that you have paid compensation or have in fact taken some meaningful step to show how sorry you might be. In the absence of any such evidence, I find that your sorry means nothing. Again the Supreme Court made it clear that, unless an expression of remorse or a simple statement saying sorry is accompanied by something tangible, it means nothing: Allan Peter Utieng v The State (supra).

In any event, as Jalina J. observed in The State v Tumu Luna (20/05/02) N2205:

"In fact, to my mind, expression of remorse after conviction following a trial loses its significance. It does not, in my view, indicate true remorse and contrition; not when someone tries to hide his involvement but after he is found guilty, he says sorry for what he had done. If an accused person pleads guilty however, and then says "sorry," his expression of "sorrow" would appear to me to be from deep within his heart."

Hence, your expression of remorse without any thing further, in my view, cannot be a factor in your favour.

In addition to the plea of your youthfulness and the other factors ruled out against you, there are a number of other factors that operate against you. Firstly, you denied the charges. That necessitated a trial, which meant more costs and time for State and of course the Court's time. Based on the decision on Verdict, I am of the view that the trial was unnecessarily called at your choosing, because you did not have a good case to elect to go to trial.

Secondly, you committed the serious offence of murder and the other less serious offence of unlawful wounding, in the course of pursuing another very serious offence, namely, armed robbery. The latter was carefully planned some 6 hours before and you tried to have that executed against two different vehicles. As if shooting at the first of the two vehicles and lawfully wounding one of its passengers was not serious, you stayed on and tried to execute your plan against another vehicle. You also failed and unfortunately succeeded in killing one of the passengers. These clearly demonstrate a ready display of having no regard for the value of a human life and the need for people to freely, fearlessly and safely travel on our highways, where ever and when ever they choose to.

Thirdly, both the offence of armed robbery and murder, either on their own or in combination are very serious offences. They are being committed almost on a daily basis countrywide. Warnings after warnings have been given, that persons who commit such offences will be dealt with sternly. The cases already cited in this judgement are testimonies to that and evidence of responses thereto.

Fourthly, you were in the company of others and were armed with dangerous weapons. There is no evidence that you had a license or a permit to carry and use, particularly the two guns that were used. One of the guns used was a home made one. I am not aware of any person in the country being authorised to make guns. But I do know that many people are making and have in their possession, such weapons mainly for use in illegal purposes. This needs to be addressed and stopped.

The end result of a careful consideration of the factors both for and against you reveals only one factor remaining clearly in your favour. That is the fact that you are a first time offender, which is confirmed by you having no prior convictions. Otherwise, there is nothing seriously operating in your favour to prevent an imposition of the maximum prescribed sentence of life imprisonment for murder and three years for unlawful wounding. Indeed, I note this is the only factor distinguishing your case from that of The State v Tony Pandau Hahuahori (supra) case, though not necessarily Mr. Hahuahori's accomplishes.

Mr. Hahuahori's accomplishes received 30 years each in hard labour on their guilty plea. As noted, they also did not have any prior convictions. The difference between them and you two is the fact that they pleaded guilty while you two have denied the charges.

Now taking all of the above factors into account, I consider a sentence of a determinate term of years would be appropriate. Then bearing in mind the sentencing tariffs, as well as the prevalence of the offence committed by persons, mainly in your age group, as well as the fact that you have been found guilty after a trial, I consider a sentence of over 30 years appropriate for murder and 3 years for unlawful wounding. In this regard, the sentence of 50 years given in The State v Tom Keroi Gurua & Ors is a relevant consideration. If you pleaded guilty, I would have had no hesitation in imposing a sentence of 30 years, similar to the one received by Mr. Hahuahori's accomplishes, as that is a case almost on all fours with your case. It is also a case that relates to a failed-armed robbery and on the Sepik Highway. But because you have been found guilty after a trial, your sentence will have to be above 30 years. This is to show some consistency in dealing with offenders in similar circumstances and along the same Highway. I do note that you did not pull the trigger of the guns that wounded the victim and the deceased of your crimes. I therefore consider a sentence of 37 years for murder and a further 2 years for unlawful wounding appropriate. There is no argument against these sentences being made concurrent which I note is based on the proper principles governing the issue. I therefore order that these sentences be served concurrently.

Your lawyers have not made any submissions regarding the time you have been in custody awaiting your trial. Nevertheless, I note that you were arrested on 22 October 2002. You have not been allowed bail and there is no evidence of you escaping from lawful custody. I therefore find that you have spent about 5 months and 16 days awaiting your trial and sentence. I deduct that period and order that you serve the balance of 36 years 6 months and 15 days in hard labour at the Boram CIS. A warrant of commitment in those terms shall be issued forthwith.

Lawyers for the State: Public Prosecutor.
Lawyers for the prisoner: Public Solicitor.