State v Seteb [1996] PGNC 166; [1997] PNGLR 428 (31 October 1996)

[1997] PNGLR 428

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

IAN NAPOLEAN SETEB

WAIGANI: SEVUA J
18, 29, 31 October 1996

Facts

The prisoner was convicted of willful murder under s 229 of the Criminal Code Act Chapter 262 where the prisoner had gone to a dance at the Kila Kila Horse Camp settlement with a self manufactured, (i.e. home made) shotgun with a sawn off barrel hidden inside his shirt and had shot the deceased after the deceased had picked a fight with a friend of his, Ivia Ari. Ari had shouted in Motu language three times, "pidia", "pidia", "pidia" – meaning shoot him, shoot him, shoot him and the prisoner shot the deceased. He then died later at the hospital.

In mitigation, the defence had submitted that this did not fall into the worst type category of willful murder, that the prisoner was a youthful offender, and further that he was under intoxication at the time of shooting.

Held

1. The courts must deal with serious violent crimes sternly and decisively with a view of public deterrence. Whilst youth is a mitigating factor, young offenders should not be allowed to hid behind the cloak of youthfulness when they are convicted of very serious violent crimes such as this one which are very prevalent in the country: Prentice DCJ decision in Bokun Umba v The State, (Unreported) SC92 considered and applied.
   
2. Intoxication is not a factor in mitigation: Mase & Another v The State [1991] PNGLR 88 applied.
   
3. Under the circumstances, death penalty or life sentence are not warranted but the prisoner must receive a long determinate sentence. Sentenced to 30 years in hard labour.
   

Papua New Guinea cases cited

Avia Aihi v The State No. 3 [1982] PNGLR 92

Bokun Umba v The State SC92.

Goli Golu v The State [1979] PNGLR 653.

Mase & Anor v The State [1991] PNGLR 88.

Paulus Mandatititip & Anor v The State [1978] PNGLR 128.

Peter Naibiri & Kutoi Soti Apia v The State SC137.

Public Prosecutor v Tom Ake [1978] PNGLR 469.

Ure Hane v The State [1984] PNGLR 105.

Counsel

M Boni, for State.
R Tupundu, for prisoner.

31st October 1996

SEVUA J. On 18th October, I convicted you of the crime of wilful murder and heard you on allocutus. The proceedings were then adjourned to 29th October to enable your counsel to prepare his address on sentence in view of the fact that this crime attracts the death penalty. The Court has now heard your counsel’s submissions together with reply from the prosecution.

Let me briefly state the facts. On the night of 13th October 1995, you attended a dance at Kila Kila Horse Camp Settlement. You were drunk that night. You carried a homemade shotgun with a sawn-off barrel hidden inside your shirt. The gun was yours. Toward midnight, a fight erupted between some of your friends from the Kila Kila Horse Camp Settlement and other youths from Sabama Settlement. Two of your mates, Ivia Ari and Iva John were involved in the fight which was against some Engans. You came out from the premises where the dance was in progress. The deceased was about to pick up a fist fight with Ivia Ari when he (Ari) shouted to you three times in the Motu language, "pidia, pidia, pidia", meaning, "shoot him, shoot him, shoot him". You then pulled your gun out, aimed at the deceased and shot him once. He died later at the hospital.

At the outset of the trial, you had raised the statutory defence of self-defence. However, from the evidence, I made a finding of fact that the deceased was not offering assault against you, nor was he threatening you prior to the shooting. Therefore, self-defence did not apply. In other words, the prosecution had negatived self-defence. I wish to reiterate here that, from the evidence of Jim Rivori, a community leader of Horse Camp Settlement at Kila Kila and a Special Constable of Police for four years, whom I accepted as a truthful witness, you shot the deceased because your mate Ivia Ari had shouted to you to shoot the deceased.

I have carefully considered the circumstances in which this crime was perpetrated. The gun, which you used to kill the deceased, was your own - you manufactured it at your father’s premises at 14 Mile. In fact you had admitted manufacturing two guns.

On the day of the killing, you had brought two bullets with you from 14 Mile. When you attended the dance, you had the gun hidden inside your shirt. You used it, readily, I should add, when your mate shouted to you to shoot the deceased. I could not understand why you carried the gun to the dance and you have offered no explanation as to why you hid the gun inside your shirt that night. Surely, you must have intended to shoot or kill someone with it. It is quite unusual for a person to carry a gun to a social occasion.

On sentence, your counsel has referred to the cases of Ure Hane v The State [1984] PNGLR 105, Goli Golu v The State [1979] PNGLR 653 and Avia Aihi No. 3 v The State [1982] PNGLR 92 and submitted that your case does not fall into the worst type of wilful murder therefore the death penalty is not warranted. However, when asked what is the worst type of wilful murders, he was unable to advance any submission for the Court’s consideration. In any event, I gather that the crux of this submission, especially, based on Ure Hane and Goli Golu was that, life sentence imposed in those cases were reduced on appeal, to fifteen and thirteen years respectively.

Counsel for the prisoner in placing reliance on Ure Hane submitted the eight categories of the worst type of wilful murders listed by His Honour, Bredmeyer, J. Even though death is now the maximum penalty for wilful murder, he submitted that this should be reserved for the worst cases of wilful murder. He further submitted that in considering the circumstances in which the deceased was killed, the Court should consider that this was a "spur of the moment situation," in that there was no preparation for the killing and the prisoner was intoxicated. The Court, he submitted, should consider an appropriate sentence based on the cases referred to.

Furthermore, counsel submitted in mitigation that the prisoner is relatively young, his relatives had paid K1,803.00 as compensation, and his parents were forced out of their jobs because of threats issued by the deceased’s relatives. The deceased was not the prisoner’s enemy thus, this was not a payback killing. Counsel did not ask for a specific term so this does not assist the Court very much. I had the impression that, since he had cited Ure Hane and Goli Golu, he was looking at around fifteen years.

Whilst it is true that different types of wilful murder have been described as the worst type in Ure Hane, I am of the view that it is difficult to distinguish between wilful murders because they all involve intentional killing with death as the consequence. Whether a wilful murder is perpetrated by the use of a gun, axe, knife or some other dangerous weapons, it is quite difficult, in my view, to consider one wilful murder different to another. There are different types of homicide under the Criminal Code, (i.e. manslaughter, murder and wilful murder) however in my view, it is hard to say one wilful murder is worse than the other, although, occasionally, one can say there are killings that are more vicious or barbaric than others.

I am of the view that this is one of the worse types of wilful murder. For no apparent reason, the prisoner carried a gun to a dance. He used it to kill the deceased without any hesitation or consideration for the possible consequences of his action. It was not an accidental killing but a deliberate shooting. Accordingly, why shouldn’t this Court hold that to be a serious wilful murder?

In the National Capital District, there is far too much of disrespect for human lives at the present time. Guns are being used to kill innocent and law abiding citizens. The Courts, police and the community as a whole, are sick and tired and fed up with these senseless and unwanton killings occurring in the nation’s capital. There are far too many gun-totting criminals running around with firearms committing very serious violent crimes that the Courts must be responsive to the concerns and cries of the community. The Courts, I believe, must contribute to a peaceful society and I believe they can do this by imposing criminal’s sanctions that can deter violent offenders.

Counsel for the State has conceded to the defence submission, based on Ure Hane, that the circumstances of this case are not such that warrant the imposition of the maximum penalty as it does not come under any of the eight categories of wilful murder referred to in that case. She submitted that even though the prisoner is a youthful offender, a harsh punishment is required rather than the maximum penalty. I take this to mean that the State is not calling for the death penalty.

The State has referred to Peter Naibiri & Kutoi Soti Apia, SC137; Paulus Mandatititip & Anor v The State [1978] PNGLR 128 and Public Prosecutor v Tom Ake [1978] PNGLR 469, and submitted that the Court should not place too much weight on the plea of youthfulness as demonstrated by these cases.

It is my view that Courts must deal with serious violent crimes sternly and decisively with a view of public deterrence. It is a fact that most serious violent crimes that are being committed in NCD and throughout the country at the present time are committed by youths between the age group of 16 to 25 years. Whilst youth is still a mitigating factor, I consider that young offenders cannot continue to hide behind the cloak of youthfulness when they are convicted of very serious violent crimes that are very prevalent in the country.

If young people behave like adults in committing very serious violent crimes, they must be treated like adults and must accept the punishment for their crimes like adults. My view is fortified by what His Honour, Prentice, DCJ (as he then was) said in Bokun Umba v The State, SC92, at p8:

"I am coming to the conclusion that the sentence handed down by the National Court, even on youthful criminals must increase significantly further if they are to avoid being regarded by the public, and perhaps by the offenders, as derisory...." (My emphasis)

In the present case, I have carefully considered the submissions by defence counsel on sentence and in mitigation. I have also considered the prisoner’s statement in allocutus. Most importantly, I have considered that the prisoner is a young first offender. His counsel submitted that the prisoner is 19 years now, but was 18 years at the time he committed this crime.

It is true that the prisoner has no previous conviction and is a young offender. I accept these submissions, but I take the most serious view of this case. I reiterate once more that the prisoner went to this dance armed with a sawn-off, homemade shotgun hidden inside his shirt and he readily used it to kill the deceased, without provocation. One can imagine what the country would be like if everyone who goes to a dance is armed with a firearm, ready to use it, whenever he feels like it. The community must be protected from this type of criminal conduct. Carrying a gun to a public social gathering and shooting someone with it for no apparent reason is senseless.

As to the submission on intoxication, the prisoner cannot rely on it. The Supreme Court has said that,

"if people drink liquor, get drunk and commit crimes they must not expect leniency from the Courts ...." See Mase & Anor v The State, [1991] PNGLR 88 at 91.

I apply that statement in this case and reject that submission.

In 1976, by an amendment to s 309 of the Criminal Code, (now s 299), the mandatory life sentence for wilful murder was abolished in Papua New Guinea, and thereafter, the imposition of life sentence has been the discretionary maximum with the Courts having a wide discretion. In 1993, Parliament further amended s 299 of the Code and legislated that death be the maximum penalty for wilful murder, although the Courts still have discretionary powers to impose a lesser penalty. In my view, this amendment reflected the concerns of the people in relation to wilful murder and the Courts must seriously consider this sanction in wilful murder cases. This prisoner therefore, could be sentenced to death for this crime.

I consider that the prisoner committed a cowardly and vicious crime. As I have found, he was not being threatened, assaulted or provoked by the deceased. The deceased was given no chance to avoid a violent death perpetrated by the use of a deadly weapon. The prisoner took the law into his own hands and administered his own form of justice.

The law of the jungles does not apply in this country and certainly; there is no place for cowboy-Indian type warfare here. In my view, a very substantial sentence is appropriate for this grave crime.

I have considered the death penalty under s 299 of the Criminal Code and I have also considered the life sentence. The death penalty is not warranted, therefore I narrow the penalty down to a life sentence. However, after very careful consideration, I feel that the prisoner should receive a long determinate sentence on the basis that he is not a serial killer, he has not killed a person before and he does not suffer from any form of personal disorder or instability, which would make him commit serious violent crimes in future.

In all the circumstances, I sentence the prisoner to imprisonment with hard labour for 30 years to be reduced by the period spent in custody, which is 1 year 1 week and 5 days. A warrant of commitment for 28 years 11 months 3 weeks and 2 days will be issued.

Lawyer for State: Public Prosecutor.
Lawyer for accused: Acting Public Solicitor.