State v Plesman; State v Moaina [1997] PGNC 142; N1657 (30 October 1997)

Unreported National Court Decisions

N1657

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 515 OF 1997
THE STATE
V
PETER JOHN PLESMAN

CR NO. 212 OF 1997
THE STATE
V
PAUL JIMMY MOAINA

Waigani

Batari AJ
21 October 1997
30 October 1997

CRIMINAL LAW - Sentence - Murder - Accuseds killed two brothers at their home in course of robbery - Killings in course of robbery - Degree of participation - Consideration of - Whether or not killing falls into worst category - Principles applied.

CRIMINAL LAW - Sentence - Murder - Plea of guilty - Mitigating factors - Aggravating factors - Co-accused with prior similar conviction - Higher sentence justified - Concurrent sentences - 25 years and 30 years.

The accused pleaded guilty to the murder of two brothers in the course of robbing them. The following judgment was delivered on sentence.

Counsel

F Kuvi for the State

D Sakumai for the Accuseds

30 October 1997

BATARI AJ: Peter John Plesman and Paul Jimmy Moaina, you have each pleaded guilty to one count of murder of Ephraim Makis and one count of murder of Albert Kapi Uming. The two counts of murder were charged on the same indictment and heard together as they arose from the same chain of events. It is now my responsibility to pass sentence.

On the night of 3 May, 1996 about 10:30 pm the deceased Ephraim Makis drove into his residence at the Christian Leadership Training Centre, at Waigani in the National Capital District (NCD). He was returning home from a trip to Lae, in the Morobe Province. With him that night were his brother Albert Kapi Uming and Philbert Aisi. As they were let through the residential gate, the two of you followed them in before the security guard could lock the gate. You were accompanied by two (2) others. The four (4) of you were armed with a shot-gun and a knife. Ephraim Makis was held up with the gun as he stepped off the vehicle. The two of you then demanded him and his companions to surrender their wallets. In the course of the robbery, the deceased Ephraim Makis attempted to wrestle the man with the gun. He was shot at point-blank in the head. His brother, Albert Kapi Uming tried to assist him. He too was attacked and stabbed in the back with the knife. Both men appeared to have died instantly.

That was a brief summary of what everybody agrees was a serious example of a callous and senseless killing executed with considerable violence and without apparent motive other than to rob somebody. There are no extenuating or mitigatory circumstances, but your lawyer, Mr Sakumai has ably argued that it is not the worst example of such a crime to come before the Court and it was in a way a chance rather than a planned killing.

In considering whether a particular offence is one of the worst examples of its kind, the Courts should have regard to the kind of case which is encountered in practice rather than to unlikely or hypothetical examples. In the case of Ure Hane v The State [1984] PNGLR, 105 in the judgment of Bredmeyer J. an attempt was made to list the most serious kinds of wilful murder. The types of situations mentioned exemplified the various circumstances in which wilful murder is committed. The list was not exhaustive. Such classification, is in my view applicable also to murder cases. In essence, homicide, be it wilful murder, murder, manslaughter or death arising out of negligent acts is committed under varying circumstances, some more serious than others. Besides, factors which may be considered on behalf of the person being punished may include one or more of those matters alluded to by McDermott, J. in SCR No. 1 of 1984: Re Minimum Penalties Legislation [1984] PNGLR, 314 at p.358:

“(1) the degree of participation: Secretary of Law v. Kaibug Jimbun & Anor [1976] P.N.G.L.R. 288;

(2) the degree of ignorance of the law: Ulao Amentasi v. Secretary for Law [1975] P.N.G.L.R. 134;

(3) the age of the offender: see Passingan v. Beaton [1971-1972] P.N.G.L.R. 206;

(4) that the offender is a first offender: Kondan Kale v. The State (Unreported Supreme Court judgment No. SC250, dated 8 June 1983);

(5) the offender’s previous good record: Kondan Kale;

(6) restitution;

(7) the offender’s physical and mental condition: R v. Kocan [1966] 2 N.S.W.R. 565;

(8) the remorse;

(9) the assistance given to police: R. v. McGrath [1971] P.N.G.L.R. 247;

(10) plea of guilty by offender: McGrath;

(11) aggravation offered by victim or provocation not amounting to an offence: Ure Hane v. The State [1984] P.N.G.L.R.105;

(12) the effect of the gaol term on offender’s family;

(13) the effect of a gaol term on offender’s job, education or income: Agiru Aieni v. Tahain [1978] P.N.G.L.R. 37;

(14) the technical nature of the offence;

(15) the customary punishment received or compensation paid to the victim: Acting Public Prosecutor v. Nitak Mangilonde Taganis [1982] P.N.G.L.R. 299;

(16) the prevalence of the offence.

The criminal cases are full of instances where one or more of these factors have been held relevant in sentencing offenders”.

The degree of participation would not normally prevail as a mitigating factor where the fulfilment of the criminal act depended on each offender actively playing his part. In the case of Gimble v The State [1988-89] PNGLR, 272 the Supreme Court at p.273 stated -

“The general rule is that all active paticipants in the crime should be sentenced whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated”.

I am inclined to agree with Mr Sakumai’s contention, and that justifies a sentence other than the maximum sentence. However, the fact remains that a reprehensible violence involving grievous bodily harm of a considerable magnitude had suddenly snuffed out the lives of two (2) innocent and unsuspecting citizens of Papua New Guinea who also happened to be related as brothers.

Although neither of you have admitted being armed, the fact of the matter is that you each admitted active participation in the robbery during the course of which the two brothers were killed. I am satisfied your presence were intentional. Your presence with a shot-gun and a knife and in accompany of others at a residential area near mid-night suggested a planned robbery of somebody at the residential areas. The shot-gun and the knife were no doubt part of the plan. I am absolutely certain each of you knew and adopted the purpose of these lethal weapons in your plans and preparations. I am satisfied the two (2) of you knew and anticipated the shooting and the stabbing at least of your intended victim if he resisted. The inference is at least open on the fact of you going around armed and in a gang. I am also satisfied that the decision to attack other persons, if they are present or when you find them to be present and resisting constituted no difficulty to the two (2) of you and your friends. In any view of your involvement, I am satisfied that the shooting and the stabbing were done in the course of theft and more so, to escape detention.

The deceased Ephraim Makis was shot in the head at point-blank. He died from brain injury. His brother Albert Kapi Uming was stabbed in the back. The stab wound extended to the root of the aorta and left lungs. He literally bled to death due to the stab wound. Your presence and active participation in the robbery provided whoever pulled the trigger and wielded the knife, support and encouragement. There were also indications that the security guard was knocked unconcious and that an attempt was made to break into the dwelling house.

These double killings and the related incidents of violence that night are examples of a dangerous situation that is created when criminals invade residential streets, yards or homes in the night. The deceaseds and their friend were returning home to a place where they had exclusive rights to privacy and freedom from harrassment of any sort. There were security fencing and a guard to the premises purposely to enable the free and peaceful enjoyment of their privacy. Sadly, this has been the fact of life in many of the urban areas which once frowned upon such security measures.

This case also illustrates the level of criminal activities in particular, crimes of violence like rape, robbery and homicide killings that had besieged our cities, towns, villages, public highways and resorts. Just about everyday, in the media one has to read or hear of unfortunate victims being subjected to some form of intimidation, violence and distress. In the latest move against crimes of violence, the Minister for Justice in a media advertisement yesterday, vowed to take appropriate steps against it. This has been precipitated by the growing problems of law and order here and the people’s resentment and public out-cry against the anti-social behaviour of a minority group which continue to make life difficult and miserable for the peace-loving and law-abiding members of the community.

In this particular case, in my view, it is offensive to those who died and to the values of our society to state that the crimes the two (2) of you and your friends committed were of the utmost seriousness. You took two (2) human lives not in circumstance where you could claim to have acted in a state of high emotion or for any reason which is comprehensible to ordinary human beings, but in circumstances in which you acted with a clear intention to commit robbery and the use of violence was anticipated.

The two (2) lives that you took may have been unimportant, useless, “samting nating” or “small things” to you, but they are not to the parents, the family, the clan, the tribe and the society all of which this court represents.

Without setting them out in detail, I have been conscious of the sentences which the Courts impose for the kind of behaviour in which you have engaged. It is paramount that the sentence must reflect the abhorrence of the ordinary members of the community for what you have done. In so far as the Court is able to do so, and consistent with the application of proper sentencing principles, it must endeavour to deter those who may be minded to act in the same way you did.

It is nevertheless necessary to consider each offence and offender on its own applicable circumstances by reference to the application of proper sentencing principles, (see Lawrence Simbe v. The State (Unreported Supreme Court judgment) No. SC455.

Peter John Plesman, you are aged 23 years and single. Your mother has died. You did not have any education, nor did you have any employment. You are originally from Erume Village, Tapini in the Central Province. At the time of the offence, you lived at 8 Mile with your aunty. There was nothing else submitted on your background or up-bringing.

This is your second conviction. You were first convicted on 28 July, 1994 on one count of robbery and one count of rape. A total cumulative sentence of fifteen (15) years was imposed on those convictions. You escaped from prison and committed this offence. This suggests you have a propensity towards violent crimes. Your situation now is this:

(i) the crimes of murders which you committed in this case attracts the highest penalty or a sentence in that order.

(ii) you are a dangerous person and that you are likely to re-offend.

Because there is no other information on yourself and your psychiatric history, I can not say there is no hope of re-habilitation. You have pleaded guilty and I give you credit for this.

However, there is no question that you must receive a long custodial sentence for your crimes. I bear in mind also that you have a current sentence to serve on your previous convictions.

On count 1 of murder, I propose to sentence you to be imprisoned for a term of twenty (20) years. On count 2, to a period of twenty-five (25) years. As the sentences are to be made cumulative to the term you are currently serving, I will make adjustments. I also propose to treat you differently because of your prior similar convictions. On count 1, I impose a sentence of thirteen (13) years imprisonment. On count 2, a term of fifteen (15) years is imposed. These sentences are to run concurrently but cumulative to the current fifteen (15) years sentence, giving an effective sentence of thirty (30) years to be served with hard labour.

Paul Jimmy Moaina, you are 18 years old, single and originally from Erume Village, Tapini in the Central Province. You did not attend school and were unemployed at the time of the offence. Your father is dead. You lived at 9 Mile prior to your arrest. There is nothing much else to say about your background or up-bringing. This is your first conviction and I treat you as a first young offender. I also consider your plea to be a significant factor as it had saved the Prosecutor the task of proving your guilt in what could have been a difficult and protracted trial. Time and expenses is also saved to the State.

On your own admissions, you actively participated in the robbery which led to the death of the deceaseds. The seriousness of your case where two (2) victims died separately in a determined spate of violence must be reflected in a long custodial sentence.

On count 1, I sentence you to be imprisoned for a period of twenty (20) years. On count 2, I impose a sentence of twenty-five (25) years. The sentences are to be served concurrently, giving an effective term of twenty-five (25) years. I order that the sentences be served with hard labour. Because you have been in custody since 20 June, 1996 I deduct one (1) year, four (4) months and one (1) week from the head sentence. You will serve the balance of twenty-three (23) years, seven (7) months and three (3) weeks.
Lawyer for the State: Public Prosecutor
Lawyer for the Accuseds: A/Public Solicitor