State v Kama [2001] PGNC 18; N2217 (10 April 2001)

N2217

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1570 OF 2000

THE STATE

-V-

JOHN KAMA
AND

SIMON KAMAN

Mt. Hagen
2001: 8, 12 February and 10 April

CRIMINAL LAW – Murder – Sentence – Murder committed in the course of robbery – through use of and discharge of firearm – prevalence of violent crimes – Need for deterrence – Criminal Code s. 300 (1).

Cases cited:
The State –v- Wallen Yamevi and Ken Dano, an Unreported National Court Judgment No: N949.
The State –v- Peter Plesman and Paul Moaina an Unreported National Court Judgment No: N1657.
The State –v- Haihavu Kori Kaiks an Unreported National Court Judgment dated 21st April 1998.
Jeffrey Harold Malepo –v- The State an Unreported Supreme Court Judgment dated 13th December 2000.

Counsel:

J. Kesan for the State

B. Aipe for the Prisoners

10 April 2001

JALINA, J. These prisoners and one Jerry Dirikola were charged with the murder of one Rodney Tuku Tambi at Ambine Creek near Banz in the Western Highlands Province on 5th October 2000. They pleaded guilty to the charge. Jerry Dirikola pleaded not guilty and is to be tried before another judge later.

The brief facts of this case are that the prisoner and their colleague Jerry Dirikola planned to rob Busu Coffee of some money but they had no vehicle so they waited for a vehicle at Ambine Creek just outside Banz Station. They were armed with one 303 rifle with 100 rounds, one homemade gun with 30 rounds and one homemade pistol with 30 rounds.

As the deceased drove to where they were hiding, they moved close to the road with their guns pointed at the vehicle. When the deceased slowed down to stop, the prisoner Simon Kaman shot him in the head killing him instantly. The vehicle ran out of control and ended up in the drain. The other people in the vehicle jumped off and ran away in fear of their lives. An old woman who was a passenger in the vehicle was pulled down by the prisoners and their colleague and robbed of K50.00 in cash. The deceased was shot in the head.

The medical report of Dr. Tovilu dated 17th October 2000 shows a multiple puncture of the scalp covering an area of 8 cm x 9 cm. There was only an entry wound but no exit wound. The skull was fractured into multiple small pieces at the site of injury. Brain matter was also damaged with bleeding all around it. There were no injuries to any other parts of the body nor did Dr. Tovilu detect any abnormalities. The doctor’s conclusion as to the cause of death was through shot gun pellet wounds to the head and the angle of wounds suggested that the deceased was shot downwards from higher ground resulting in pellets penetrating downwards but not exiting.

The maximum penalty for murder is life imprisonment pursuant to s.300 (l) of the Criminal Code Act Ch 262. The prescription by Parliament of life imprisonment demonstrates the seriousness with which it viewed this crime. Although it is within the power of the court to impose a life sentence in an appropriate case, the practice has been to impose a term of years. In recent times the number of years imposed by the court for killings in the course of an armed robbery have risen sharply.

For instance in The State –v- Wallen Yamevi and Ken Dano, an Unreported National Court Judgment No: N949 dated 5th November 1990 Bruton, J. imposed a sentence of 14 years imprisonment where the driver was shot and killed when she failed to heed the prisoners’ signal to stop. She died at the scene of the crime. His Honour imposed only 14 years partly because it was not the "worst case" of murder and that they were not the ones who pulled the trigger. They were only involved in the planning and were acting as watchmen.

In discussing the appropriate sentence that could be imposed for this crime the learned trial judge said at pages 3 – 4 with which I respectfully agree:

"Brutal and deliberate killing in the course of a robbery, as distinct from incidental killings in robberies which sadly go wrong as when a criminal panics, or a victim offers unexpected resistance, have always attracted the highest tariff life imprisonment.

The sentencing practice is a reflection of the times. Although on average the sentence for an armed robbery in which no one was hurt is about three to four years imprisonment, sentences for robbery with aggravating circumstances have risen to around six to eight years, with sentences of up to twelve years being imposed where the robbery shows sophisticated planning and large amounts of money having been stolen, or where excessive violence, or rape have occurred."

In The State –v- Peter Plesman and Paul Moaina an Unreported National Court Judgment No: N1657 dated 30th October 1997 Batari, AJ. sentenced the prisoners to 25 years imprisonment for the murder of brothers Ephrahim Makis and Albert Uming inside their residential area. Ephraim Makis was shot at point blank range and Albert Uming was stabbed in the back several times.

In The State –v- Haihavu Kori Kaiks an Unreported National Court decision dated 21st April 1998, Los, J. imposed 23 years imprisonment on the prisoner who scaled the walls to the 4th floor of the Lodge Apartment, Hunter Street in Port Moresby and stabbed a geologist to death in the presence of his wife inside their apartment. In imposing the sentence the trial judge stressed that the offence was committed after invasion of the deceased’s private home or dwelling which was in effect done in breach of the deceased’s right to privacy of his home which was guaranteed under the Constitution.

In Jeffrey Harold Malepo –v- The State an Unreported Supreme Court Judgment dated 13th December 2000, the Supreme Court in which I was a member dismissed the appellant’s appeal against a sentence of life imprisonment for murder. In that case the deceased was killed when she was tangled in the seatbelt of her vehicle and was dragged along the bitumen road for three kilometres after her vehicle was taken from her by the prisoner and his colleagues. Her body was badly mutilated. In dismissing the appeal against sentence of life imprisonment the Supreme Court accepted that the murder in those circumstances was among the "worst murder" case.

So it is clear from the above cases that both the National and Supreme Courts have considered murders committed in the course of a robbery to be very serious and are increasing the sentences.

Both prisoners in the case before me have pleaded guilty and expressed remorse. They have no prior convictions. They have said through their lawyer, Mr. Aipe that they did a really silly thing. These are mitigating factors which I have taken into account in their favour in deciding the appropriate sentence. I have however, not been informed by counsel of any compensation having been paid by the prisoners or their relatives to the deceased’s relatives so I cannot take that into account in their favour as required by the Criminal Law (Compensation) Act 1991. But the fact is that they caused the death of the deceased who was peacefully going about his duty as driver of the company he worked for and did not expect that he would be held up or lose his life in the way he did. They caused the death of the deceased in circumstances where it was not necessary for them to shoot. Statements from witnesses who were in the vehicle with the deceased show that the deceased was shot before he could stop the vehicle in compliance with the signal from the prisoners and their colleague for him to stop. This is not even a case where the deceased was shot after he had gone past them in total disregard of their signal for him to stop his vehicle. In this case, they should have waited for the deceased’s vehicle to stop and then gone to the vehicle and demanded the deceased and his passengers to disembark. They should have then taken the vehicle which was what they really wanted instead of firing shots at him before he could stop his vehicle.

From the cases I have referred to above it appears that the increase in sentences for murder which is committed in the course of a robbery is not having any effect. These type of murders are still being committed so there is a need for the court to sound a warning to others who may contemplate killing their victims in similar circumstances that such actions cannot and should not be tolerated by peace loving and law abiding members of our community. Whilst I accept that this is not the worst type of murder as in Malepo’s case, the fact that it was planned and that it was carried out according to plan and without giving any chance to the deceased to surrender warrants a sentence in the vicinity of those that have been imposed in The State –v- Peter Plesman and Paul Moaina (Supra) as well as in The State –v- Haihavu Kori Kaiks (Supra).

The sentence I therefore consider appropriate in the circumstances of this case after taking into account the mitigating factors I have alluded to above is a period of 25 years in hard labour. I deduct from that sentence the 6 months and 5 days they have spent in custody which leaves 24 years, 5 months and 25 days each of them have to serve in hard labour.
______________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoners : Public Solicitor