State v Seteb [1996] PGNC 49; N1478 (31 October 1996)

Unreported National Court Decisions

N1478

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 201 OF 1996
THE STATE
v
IAN NAPOLEAN SETEB

Waigani

Sevua J
18 October 1996
29 October 1996
31 October 1996

CRIMINAL LAW - Sentence - Wilful Murder - Young first offender - Intoxication - Use of firearm to kill - Sentence - whether death, life imprisonment or a determinate term.

Cases Cited:

Ure Hane v The State [1984] PNGLR 105

Goli Golu v The State [1979] PNGLR 653

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

Peter Naibiri & Kutoi Soti Apia v The State SC 137

Public Prosecutor v Tom Ake [1978] PNGLR 469

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

Mase & Anor v The State [1991] PNGLR 88

Bokun Umba v The State SC 92

Counsel:

Ms M Boni for State

Mr R Tupundu for Prisoner

31 October 1996

SEVUA J: On 18th October, I convictud 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 hisess on sentence in view of the fact that this crime attracttracts the death penalty. The Court has nard your cour counsel&#8217bmissions together with reph reply from the prosecution.

Let me briefly state the facts. On tght of 13th October, 1er, 1you attended a dance at Kila Kila Horse Camp Settlement.&#1t. You weunk that night.&#160 You carrieome-made shotgunotgun a sawn-off barrel hidden inside your shirt. The gun wgun was yours. Towadnight, a fight erupterupted between some of yournds fhe Kila Kila Hors Horse Camp Settlement and other youths frhs from Sabama Settlement. Two of your mates, Ari andi and Iva John involn the fight whichwhich was was against some Engans. You came out fre premises ises where the dance was in progress. The sed was abo pick up a up a fist fight with Ivia Ari when heen he (Ari) shouted to you three times in the motu language, “pidia,a, pi8221;, meaning, &ng, “shoot him, shoot him, shoot him.” You then pulled yled your gun out, aimed at the deceased and shot him once. He died later e hospital.

On the outset of the trial, you had raised the statutory defence of defence. However, from the evidence, I made a findininding 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 prosecutionution had negatived self defence. I wish to reiterare that, hat, from the evidence of Jim Rivori, a community leader of Horse Camp Settlement la Kila and a Special Constable of Police for four years, wrs, 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 wyou used to kill kill the deceased was your own - you manufactured it at your father’s premises at 14 Mile, infact you had admitted manufacturing two guns.

On the day of the killing, you had brought two bullets with you from 14 Mile. When younded the dance, yoe, 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 nderstand why you 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 muse intended nded to shoot or someone with it. It ; It is quite ul for a or a person to carry a gun to a social occasion.

On sentence, your counsel hferred to the cases of Ure Hane v The State [1984] PNGLR 10LR 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, whend what are thre the worst type of wilful murders, he was unable to advance any submission for the Court’s consideration. y event, I gather that thet 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. Evough death is now the mahe maximum penalty for wilful murder, he submitted that this should be reserved for the worst cases of wilful murder. He further submithat in coin 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 preparatir the killing and the prisoprisoner was intoxicated. The Court,ubmitted, shouldhould consider an appropriate sentence based on the cases referred to.

Furthermore, counsel submitted in mitigation that the prisoner is relatively young, his relatives aid K1,803.00 as compensatinsation, his parents were forced out of their jobs because of threats issued by the deceased’s relatives. The deceased was notprisonrisoner’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 tpression that, sinc since he had cited Ure Hane and Goli Goe was looking at around fifteen years.

Whilst it is true that different types of wilf wilful murder have been described as thet type in Ure Hane, I am ofam 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 wilfrder is perp 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 areerents of homicidmicide unde under the Criminal Code, (ie manslaughter, murder and wilful murder) however in my view, it is hard to se wilful murder is worse than the other, although, occasionally, one can say there are kill 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 possibleequences of his action. It was not aidental killinilling but a deliberate shooting, sng, so why shouldn’t this Court hold to be a serious wilful murl murder?

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

Counsel for the State has conceded e defence submission, basedbased 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 submittet even though ough the prisoner is a youthful offender, a harsh punishment is required rather than the maximum penalty. I this an that the State iate is not calling for the death penalty.

The State has refe referred to Peter Naibiri & Kutoi Sota, SC 137; Paulus Mandatititip & Anor v The State, [1978] PNGLR 128 and Public Prosecutsecutor 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 isct that most serious ious violent crimes that are being committed in NCD and throughout the country at the present time are comm by youths between the age group of 16 to 25 years. Whilst youtstill a mitigattigatingating 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 veevalent 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 fort by what Hiat His Honour, Prentice, DCJ (as he then was) said in Bokun Umba v The State, SC 92, at p. 8:

“I am coming to the conclusion that the see handed down by the National Court, even on youthful crimicriminals 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 pree present case, I have carefully considered the submissions by defence counsel on sentence and in mitigation. e also considered the ner& ner’s statement in allocutus. Most tantly,ntly, I have cave considered that the prisoner is a young first offender. counsbmitted the prisoner iner is 19 years now, but waut was 18 s 18 years at the time he committed this crime.

It is true that the prishas no previous conviction and is a young offender. I accept thubmissions, but, but Ibut 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, home-made shotgun hidden inside hist and he readily used it toit 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 coty must be protectedected fhis type of criminal conduct. Carryigun to a puba publicublic social gathering and shooting someone with it for no apparent reas senseless.

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

“if people drink liquor, get drunk and commit crimes they must not expect leniency from the Courts...”

See & Anor v The State, [1991] PNGLR 88 at 91. I appI apply thatement in t 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 pua New Guinea, and thereafereafter, the imposition of life sentence has been the discretionary maximum with the Courts having a wide discretion. In 1993, Parlt further amer 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. Iview, this amendment refl reflected the concerns of the people in relation to wilful murder and the Courts must seriously consider this sanction in wilful murdees. This prisoner therefore, could be sentenced to deto death for this crime.

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

The law of the jungles does not applyapply in this country and certainly, thereo place for a cowboy-indian type warfare here. In my n my view,ry substanbstantial sentence is appropriate for this grave crime.

I have considered the death penalty under s. 299 of the Code and I have also considered the life sentence. InitiaI thothe death penalpenaltynalty was not warranted, therefore I narrowed the penalty down to a life sentence. However, after verefulidersideration, I felt that the prisoner should receive a long determinate sentence once on the basis that he is not a serial ki he has not killed a person before and he does not suffer from any form of personal disordesorder 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 8 r 28 years 11 months 3 weeks and 2 days will be issued.

Lawyer for State: Public Prosecutor

Lawyer for Accused: Acting Public Solicitor