State v Gurua [2002] PGNC 41; N2312 (11 December 2002)

N2312

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.1320, 1322 & 1324 OF 2002

THE STATE

–v-

TOM KEROI GURUA
DAVID LAIAM BAWAI,
&
JOSEPH NIMAGI

LAE: KIRRIWOM, J.
2002: 11 December

CRIMINAL LAW – Sentence - Murder – Death resulting from a failed abduction - Death caused in the prosecution of a common unlawful purpose - Parity Principle – Justification for disparity in sentences of co-offenders where one plays minimal role in the offence.

Sentence - Youthful offenders – "Youth" as a mitigating factor – Must be viewed subject to the prevalence of the offence charged.

General rule in sentencing of co offenders stated in Gimble v The State [1988-89] PNGLR 271 not followed.

Prisoners unlawfully entered the premises where the deceased and others had gathered for a prayer meeting whilst armed with homemade guns and knife. It is not exactly certain from the evidence what their motive was but they held up those who were there where some money was stolen from one of the victims. As they decamped after the robbery two tried to abduct a teacher’s daughter amongst the group. The teacher reacted in his daughter’s rescue and was gunned down.

In sentencing the prisoners the court raised the question of whether it must impose the same term of imprisonment on all of them as appears to be the general rule in Gimble v The State [1988-89] PNGLR 271 or must each be punished according to the degree of his criminal behaviour or culpability and personal circumstances.

Held: That each prisoner must be punished according to the degree of his criminality in the overall circumstances of the offence committed including his personal background and circumstances.

Cases cited:
The State –v- Laura (No.2) [1988-89] PNGLR 98
Paulus Mandatitip & Anor –v- The State [1978] PNGLR 126
The State –v- Tau Ted Lahui & Ors [1992] PNGLR 325
The State v Tony Pandau Hahuahoru (February, 2002) N2186
Gimble v The State [1988-89] PNGLR 271
Winugini Urugitaru v The Queen [1974] PNGLR 283
Goli Golu v The State [1979] PNGLR 653
Andrew Uramani & Ors v The State [1996] PNGLR 287
Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
Van der Worp v The Queen [2000] WASCA 154
MacPherson v The Queen [2002] WASCA 287 (October 22, 2002)

Counsel:

N. Miviri for the State
M.Mwawesi for the Prisoners

December 11, 2002

KIRRIWOM, J.:

1. These three prisoners were found guilty and convicted of the murder of a schoolteacher, one Anthony Pokahun, at Marian Hill Primary School Wau, Morobe Province, on the night of 2nd May 2002. The deceased was amongst a group of teachers, laity and clergymen praying rosary in a fully illuminated front yard of a teacher’s house in the school staff residential area when these prisoners entered the premises through a hole in the fence and confronted them with home-made shotguns and a knife. They ordered them to lie down or remain still and cooperate while they robbed them. As they left after robbing them David Bawai grabbed the deceased’s daughter and pulled her by her hand. She called out to her father to help her. The deceased went to his daughter’s aid and fought David Bawai who was then assisted by Tom Gurua. During this struggle one of them shot the deceased.
   
2. It is now my unfortunate task to consider their punishment. I bear in mind that the maximum penalty for murder under section 300 of the Criminal Code is imprisonment for life. The case of The State –v- Laura (No.2) [1988-89] PNGLR 98 sets out the guidelines that remind trial judges on matters that need to be taken into consideration when determining penalty in murder cases which I need not repeat here.
   
3. It has been expressed in many judgments in both National and Supreme Courts that in homicide cases that there can be no worst or no less serious homicide. A loss of life lost through deliberate cold-blooded criminal act of someone cannot be measured by the nature of the acts that cause death such as a gun or fist or an axe to determine which one is worst than the other. It is immaterial if the victim dies from a bullet wound, a blow from a folded fist or a stick or a rock or an axe or a lethal injection of a poisonous substance using a needle. A death is a death. A life lost cannot be replaced and it is immaterial whether death is instantaneous or slow.
   
4. There are various factors that the court must bear in mind in sentencing an offender. What is the interest of the public in this case? Public interest needs to be taken into account in the sentence that the court imposes. The interest of the State as the sovereign whose law is broken must be considered. Of course finally the prisoner’s own background and circumstances must also be taken into account.
   
5. From both the State and public perspective it can be appreciated as to why retribution would be seen as the most appropriate objective for punishment in this case. Increasing lawlessness involving crimes of violence using homemade guns is quite prevalent everywhere in the country. Places like Wau and Bulolo have become notoriously well known as crime-stricken towns.
   
6. Public has the right to be angry and agitated because it is the actions of these people that casts bad image and sends wrong signals to the world through the media. This is the biggest, apart from corruption at all levels of the society, contributing factor to the international community’s diminishing interest in helping Papua New Guinea. We have a pretty poor record of showing any form of appreciation or saying thank you to our own hardworking people and to our overseas partners and visitors who come to help develop our country as crime continues to flourish everywhere.
   
7. The public in this case has every right to be up in arms for what happened to the deceased because this killing was quite unwarranted, unprovoked and uncalled for. The deceased was only a young man in his late thirties with a young family. He spent many years in his career as a teacher away from his own home and the city life to improve the lives of many young people like these prisoners through primary education in remote locations like Wau where many public servants dare not go and work there.
   
8. The public also has the right to be concerned about this particular killing because the deceased was gunned down in the presence of his family and fellow teachers inside the fenced and secured residential quarters where they were all gathered in prayer of the rosary under a fully lit arena with the Statue of the Virgin Mary before them for all to see. These prisoners had neither respect nor fear of God. They could have simply left them in peace to carry on with their worship and prayers. They could not careless whether these people were praying or partying. They went there with a prefixed mind to cause trouble.
   
9. This incident does impact adversely on the education system in its posting qualified and experienced teachers to remote locations known to be criminally volatile and Wau has been reputed to be such a dangerous place not only for teachers but other public servants as well. These three prisoners have been resident of Wau for long time and had gone to school there.
   
10. In considering the seriousness of this case, the court must also balance this factor with that of the offenders, the prisoners, their background and the circumstances under which the offence was committed and what mitigating circumstances there may be that can be taken into account in their favour. Every case has its own peculiar facts and circumstances that differentiate one from the other.
    
11. I have taken special note of the prisoners’ statement on allocatus. None of them expressed discontentment with his conviction. Each accepted the court’s verdict and expressed remorse for his action but fell short of saying sorry to the family of the deceased. Tom Gurua, whose statement was also adopted by David Laiam Bawai, asked the court for a non-custodial sentence. He said the prison in Buimo was infested with hardcore criminals and with whom he did not want to mingle lest they influence him to turn against the society.
    
12. Joseph Nimagi also made a similar appeal. He said he did not want to be a criminal or remain a rascal for the rest of his life. He went on to tell the court about his family and the negative impact this crime has caused his family’s good reputation, particularly when many of his family members are public figures in the small township of Wau where the family had lived for 25 years and many of them are involved in community activities.
    
13. In mitigation of penalty Mr Mwawesi, counsel for the prisoners, submitted the following background information of the prisoners:
    

David Laiam Bawai

David Laiam Bawai is from Oroipa village, Tapini in the Central province. He is 18 years old single and was resident at 7th Block Wau at the time of this trouble. Both his parents are dead and he is the first born from a family of 5. He has had very limited education up to grade 3 and has been unemployed. He is a follower of the Four Square Church. At the time of this trial he had spent about 6 months and about 3 weeks in custody on remand.

Tom Keroi Gurua

Tom Keroi Gurua is the oldest of the three prisoners aged 20 years, single and also comes from Oroipa village, Tapini in the Central Province. Both his parents are deceased and he is the 4th born out of 5 children. He completed Grade 6 at Marian Hill Primary School and went onto finish Grade 9 in 1994 at Grace Memorial High School Wau and took CODE lessons to complete Grade 10. He is a follower of the Lutheran Church. He was resident in Wau with his adoptive parents at the time of this trouble.

Joseph Nimagi

He comes from a very large family of 8 children and he is the 6th born. The family is originally from Watut, Bulolo but as I have stated earlier has been resident in Wau for 25 years. His father is in fact the spokesman for Wau/Bulolo Landowners.

He is the youngest of the three estimated to be 17 years old and was living with his parents at Kunai Heights 9 Block Wau at the time of this trouble. He completed Grade 8 at Wau High School in 1998 but has not been able to secure employment. He follows the Baptist Church.

Except for David Laiam Bawai who was arrested at Papua Compound in a dawn raid conducted by the police, Joseph Nimagi surrendered to the police in Bulolo on 16 May 2002 and Tom Gurua similarly did likewise on 18 May 2002.

14. I take note of their previous good character and background and they are generally young men just reaching their twentieth birthday except for Joseph Nimagi who is still 17 years old. He clearly falls into the category of youthful offender. Youth has been a mitigating factor in sentencing in this jurisdiction as in other places and there is no dispute about that. Whether or not I treat him differently from the other two co-offenders depends on the circumstances of this case.
    
15. On the other hand I agree entirely with the submission by Mr Miviri Counsel for the State that there must not be over-emphasis on the ‘youth’ of the offender as it could be misleading and injustice could result. In Paulus Mandatitip & Anor –v- The State [1978] PNGLR 126 it was said that where the offence is prevalent in the country, deterrent sentences are required, and youthful offenders should not receive special treatment unless there are exceptional circumstances which call for leniency. In that case the Supreme Court dismissed an appeal against severity of sentence of 16 months and 20 months respectively on the two appellants who were convicted and imprisoned for breaking entering and stealing. The Supreme Court per Prentice CJ and Pritchard J said at pp129-130:
    

"... As his Honour stated, this was a bad case involving pre-planning, co-operation of a number of people and a determined effort. The break was made into a store, which had been broken into on previous occasions. It resulted in the almost complete stripping of the stock of the store, which is in a district, which had been notoriously lawless over a considerable period beforehand. There was no indication on the part of the appellants that they were remorseful. The trial judge, a most experienced member of the National Court, considered the case called for a deterrent sentence; we are not prepared to disagree with him. The crime of breaking and entering for which such severe penalties are prescribed by Parliament, was then, and seems to be still, on the increase throughout the country. As is well known, such offences are completely anathema in village society without interposition of the introduced law. We agree with the remarks of Herron CJ in relation to another society (Reg. v. Cuthbert [1]) when he said "a plea of youth is no longer a satisfactory answer to crime" as being applicable today in Papua New Guinea. There appears to us to be no exceptional circumstances which call for leniency. As had been frequently announced and published over a long period, the policies of the courts (as indeed seemed to be demanded by public opinion as far as the courts can gauge it) were to increase sharply, and as might continue to be necessary, the severity of punishment for such offences......"

16. The era when the Supreme Court was dealing with this issue of prevalence of crime was over two decades ago when crimes of violence to persons such as armed robberies involving youthful offenders were not heard of in such regularity and frequency, as is the case today. Now there are young offenders between 13 to 16 years fearlessly terrorising and killing innocent people with lethal weapons such as guns and bush knives as if human life meant nothing or as if human life was no different to an annoying tiny insect that finds itself at the mercy of its predator.
    
17. What has happened since then is that the complexity of criminal behaviour has transcended into new heights, which ignores social and moral values, let alone respect for another, and his property. This social evil now pans out in the guise of revenge and emancipation of those who feel aggrieved as being neglected by the society or government as they go on the wild spree causing harm and injury upon others.
    
18. Courts have always been tough on cases of personal violence including unlawful homicide, in particular, where killings are associated with armed robbery. In The State –v- Tau Ted Lahui & Ors [1992] PNGLR 325 the prisoners were all found guilty of murder under section 300 (1) and (2) of the Criminal Code and were all sentenced to life imprisonment. The facts of that case are that the prisoners stole the deceased’s motor vehicle at gun-point. They forced the deceased out of her car together with her old mother and child. In the process of removing her child the deceased’s hand got caught in the seatbelt and was tangled in it when the prisoners shut the door and drove off dragging the deceased for some 3 kilometres along the streets of Hohola at high speed from which she suffered severe injuries and died as the result. Several times they stopped to untangle the seatbelt to release the deceased but the public who saw the deceased being dragged also gave chase and the prisoners continued driving to escape the public and the police thereby causing more damage to the deceased’s tormented body from the bumps and bruises she received from the solid road surface. I sentencing the prisoners the trial judge said at pp.333-334.:
    

"Murder is one of the most serious offences in the Criminal Code and it carries a maximum penalty of life imprisonment. Your lawyers have submitted that I should not consider life imprisonment but to consider a lesser term. Mr Takin suggested a period of eight to twelve years imprisonment in relation to George Gadiva Hetau and Maraki Pati Noho. The State Prosecutor, Mr Unagui, submitted that I should consider a sentence beyond that suggested by Mr Takin.

I was asked to treat you as young men and that three of you have no prior convictions. Tau Ted Lahui you have two prior convictions: 1980 Unlawful use of a motor vehicle - sentenced to three months imprisonment in hard labour. 1987 - Robbery, two years good behaviour bond.

To my mind Jeffrey Airi Eki is the only one who might just fall into the "young first offender" category. You are nineteen years old. Tau Ted Lahui you are thirty two years, George Gadiva Hetau - twenty three years and Maraki Pati Noho - twenty one years. Certainly you latter three could in no way be described as young offenders.

Needless to say I am of the view that when such an horrific crime as this occurs it makes little difference whether the accused is a first offender or not. Certainly none of you are of the age to whom the Court sometimes gives special consideration. Those people are usually about sixteen years old or younger.

I have also been asked to consider that you voluntarily surrendered. I do take note of that but I also note that you came to this Court and pleaded "not guilty" to the charge and therefore a lengthy trial needed to be conducted. Because of your "not guilty" pleas witnesses needed to be called and the one of course who stands in my mind is Mrs Lilly Avenell, the mother of the deceased. She had to re-live the tragic event, this time in a court room before many people. That must have been extremely difficult for her as apart from the fact that she is the mother of the deceased, she is also an elderly lady.

...............

Strongly against you of course is the fact that a person has been murdered in horrific circumstances. What you did was brutal and cowardly. I have no doubt whatsoever that Mrs Lutschini suffered terribly and died in agony and pain. I can only hope for her sake that it did not take too long. It seems to me that you had a choice - to release Mrs Lutschini and risk being captured or to only release her when your freedom was assured. You chose the latter, and Mrs Lutschini died.

Your actions at the time not only left a nation in shock but you have also ruined a family. A man has been left widowed with two young children whilst the rest of the family has lost a loved one many years before it was time for her to go. That family will never be the same again. Sorrow will be with them for the rest of their lives. Two young children will grow up without a mother.

..................

I have taken into account everything that has been said in Court by you Jeffrey Airi Eki and the three lawyers. There is no doubt that the facts relating to this murder are horrifying. It falls into the category of the worst type of murder.

You all showed absolute disrespect for human life. Once again this Court has seen the after effects of alcohol abuse."

19. Needless to say, the circumstances of this killing are horrifying. This murder was committed in the course of prosecuting an unlawful purpose, that is, robbery and attempted abduction. One can only speculate what might have happened if the abduction was not foiled by the deceased. Adopting the views expressed in what is now commonly known as "the Lutschini case", I am compelled to believe that where there is little or no evidence of decline in the incidences of violent crimes despite strong deterrence sentences, it is time to get even tougher on law breakers. There was no reason for Mr Pokahun to die prematurely. He leaves behind his family who will have to live in agony and grief. No doubt when the times get tough, as the trend is already showing in the country, they have no one to turn to for love and comfort. He remains only a memory to them as long as they live and remember him.
    
20. It was submitted that I impose a determinate term of imprisonment and not the maximum under the Code. However, Counsel for the State submitted that this is a worst case that deserves nothing short of life imprisonment. I have considered Mr. Miviri’s submission and on reflection observe that this is probably one of those rare times that he argued for the maximum or near maximum penalty to be imposed, otherwise, he has never addressed the court on sentence. Mr. Miviri’s argument is understandable because this case, like the Lutschini case, attracted wide publicity and there was public outcry nationwide.
    
21. The National Court recently in Wewak in The State v Tony Pandau Hahuahoru (February, 2002) N2186 sent a young man to life imprisonment after a trial on a charge of murder. This was a case of robbery that went bad when the PMV that the robbers signalled to stop along the Maprik-Wewak Highway failed to do so and the prisoner fired shots from his homemade shot-gun at the vehicle. Several passengers on the back of the vehicle were injured by the pellets, one of whom subsequently died at Boram Hospital and a young school boy of 16 lost one eye. His co-offenders were sentenced to a total of 30 years for the murder charge because they pleaded guilty. The trial judge discussed the need for disparity in the sentences between them and I allude to that later in this judgment.
    
22. In this case the prisoners have not shown the slightest remorse to the family and relatives of the deceased whose young life they had prematurely taken away from them except apologised to the court, the public and expressed pity for themselves. Two of them confessed at the outset of their involvement upon arrest that they subsequently disputed and a trial on voir dire ruled their confessions voluntary and therefore admissible and two of them voluntarily surrendered to the police about two weeks after the killing. In my judgement I discussed the community involvement in the surrender of suspects who are handed over to the police by the relatives. Yet in the court before me they all chose to deny the charge so an expensive trial had to be conducted for the State to prove their guilt. That was their right to have their accusers prove their case against them. But in so doing they have also forfeited their hope of any concession this court could accord them as happens in a guilty plea.
    
23. The community at large is anxiously waiting to see justice done swiftly and promptly. There can be no greater satisfaction for the nation labouring under crippling effects of never ending and escalating lawlessness that is already bringing the country to its knees than seeing that the courts are seriously addressing this phenomenon just as anxiously and decisively.
    

Parity Principle

24. And it is because of this that I find my task now quite a difficult one in determining what ought to be the appropriate punishment for each of these three prisoners. There is no dispute that these three acted in concert. The difficulty that faces me now is whether I impose the same sentence on all of them or must I punish each of them individually according to the level of their criminal culpability and their respective circumstances.
    
25. The Supreme Court in Gimble v The State [1988-89] PNGLR 271 at 273 said:
    

"The general rule is that all active participants in the crime shall be sentenced on the same basis. The Court does not normally stop to consider 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 part the crime could not be perpetrated.’

26. There is no question that the decision of the Supreme Court is binding on the National Court. But, with all due respect, I think that passage is misleading in that it gives the impression that all co offenders in joint criminal ventures or enterprises must be sentenced equally, which could be construed to mean that they must all receive the same sentence regardless of their degree of participation or criminality and personal circumstances. If this interpretation is correct, with respect, it would not auger well with accepted sentencing principles and practices that this court has always followed and adhered to in offences involving multiple offenders with varying degrees of criminal culpability. And I note that this argument was properly raised on appeal in Gimble’s case by counsel for the appellant but the Supreme Court brushed it aside with the remarks I quoted above, which remarks could be incorrect.
    
27. The law on sentencing of two or more persons charged and convicted together for the same offence is largely determined according to the level of their criminal culpability or the degree of their participation and their individual circumstances. This is referred to as the parity principle and the passage in Gimble’s case needs to be clarified. There is no doubt that it applies more appropriately to the issue of guilt or innocence but not so in sentence. A grave injustice could result. Take for example an extreme case scenario involving say, a group of six people who are found guilty of committing a crime, one of whom is aged about 16 years and a first offender and another is aged 60 years and also a first offender. The only part in the crime was that they are engaged is simply, say, to divert attention of the passers-by away from the four active perpetrators who were physically involved in the unlawful act. No doubt they are guilty under s. 7 of the Code. But given their role and their ages compared with the four key perpetrators who are aged between 20 and 30, will it be justified for the court to impose the same length of sentence on all six of them?
    
28. In the case of The State v Tony Pandau Hahuahoru (supra) I referred to above discussed the parity principle and the following remarks made by the trial judge are worthy of noting, as they seem to correctly reflect the law. After referring to a number of Papua New Guinea cases like Winugini Urugitaru v The Queen [1974] PNGLR 283; Goli Golu v The State [1979] PNGLR 653 and Andrew Uramani & Ors v The State [1996] PNGLR 287 Kandakasi, J concludes:
    

"A consideration of all these authorities shows that, a court can impose a sentence that is in disparity with a sentence received by an offender’s co accused. That can only happen if there are good reasons such as prior conviction, conviction after a trial, and playing a more active and leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be just one such factor or there could be a combination of them."

29. I note that the view His Honour expressed represents the current legal position not only in this jurisdiction but universally. In Mario Postiglione v The Queen (1997) [1997] HCA 26; 189 CLR 295, Dawson and Gaudron, JJ said at 301 – 302:
    

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to ‘a justifiable sense of grievance’. ..

Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality..."

30. This statement of the High Court was subsequently cited with approval by Templeman J in the Court of Criminal Appeal of Western Australia in Van der Worp v The Queen [2000] WASCA 154 where His Honour was discussing the justification of disparity in sentences of co-offenders. His Honour stressed that the question of due proportion between those sentences is a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
    
31. A further approval and acceptance of this principle is found in another Western Australian Court of Criminal Appeal case decision of MacPherson v The Queen [2002] WASCA 287 (October 22, 2002) delivered by Parker, J. His Honour refers to the same passage I have quoted from Postiglione v The Queen (supra) and further discusses the totality principle, which often in sentences involving two or more offenders charged with multiple counts piggybacks or vice versa with the parity or disparity issue. But in this case this is not so.
    
32. It is my respectful view therefore that the sentences for each of the prisoners in this case must reflect strictly the degree of criminality of each one of them, and more particularly so, for the reason that from the time that the prisoners were inside the premises to the time the deceased was shot and killed, there appears to have been a change in the criminal design of their unlawful purpose which ultimately was the cause of the struggle between David Bawai and Tom Gurua and the deceased. If the prisoners had confined themselves robbery only, there would not have been this dreadful eventuality.
    
33. I therefore hold both Tom Gurua and David Bawai wholly liable for this killing unbeknown to Joseph Nimagi who was watching over Mrs Aihi inside her house.
    
34. In my reasons for decision on their conviction, I set out the degree of participation by each one of them. I have found that the trio went into the school premises initially to look for Tom Gurua’s ex girl friend Imelda, a teacher in the school at Marian Hill. This is their story. Both Tom Gurua and David Bawai had home-made guns and Joseph Numagi was believed to be armed with a knife. It is not clear from the evidence whether it was a kitchen knife or a bush knife.
    
35. When they got there, Imelda was not home. They then turned to the group that was gathered for the rosary meeting. Whether I should accept this or not is another thing. My observation from the view taken seem seemed to me that the hole in the fence behind Mrs Aihi’s house leads straight into the full view of those worshippers gathered there because Mrs Aihi’s house was just beside Mrs Tiloch’s, about 14 metres apart. The front porch of Mrs Aihi’s house faced the group who sat on the lawn outside Mrs Tiloch’s house. Any trespassers entering through that hole walks under Mrs. Aihi’s house and into the full view of those seated outside Mrs. Tiloch’s house. Thus it would seem to me that as soon as the trio entered through that hole, Tom Gurua and Joseph Nimagi went up the stairway of Mrs Aihi’s house according to the evidence. David Bawai proceeded behind them and ordered those on the lawn to lie down.
    
36. The evidence before the Court is both David Bawai and Tom Gurua had other ideas. This is therefore not a clear case of common unlawful purpose because it simply is unclear as to what their criminal purpose was. Whether it was their combined plan to abduct any woman in the group is not clear. However, what is obvious from the evidence before me is that David Bawai pulled the deceased’s daughter by her hand and having difficulty overcoming the resistance from the deceased who came to his daughter’s rescue. It was then that Tom Gurua came to David’s help by which time Joseph Nimagi who was inside the house heard the commotion and he left the house. He saw the struggle between both David Bawai and Tom Gurua on one side with the teacher on his own fighting the two of them. It was only his appearance that caused the teacher to leave them both as he retreated to where the rest of the group was one.
    
37. But even before that Tom Gurua appears to have had the same idea as well when he announced to Mrs Kamen that she was going with him but she successfully extricated herself from that potential disaster by her cool and calm manner in which she handled the whole situation with the prisoner.
    
38. Joseph Nimagi does not feature conspicuously in the scenario of Tom Gurua and David Bawai struggling with the teacher over his daughter. The only evidence of his active participation in this struggle is from Philip Bomai who says that ‘three of them were involved’. I don’t know whether by this he meant the three accused or he was referring to the struggle between David Bawai and Tom Gurua on one hand and the deceased on the other. I give Joseph Nimagi the benefit of my doubt.
    
39. The only clear evidence from which I inferred that Joseph Nimagi was present was his own confessional statement in which he said that he was in the house with Mrs Aihi when he heard David Bawai call out and he rushed out of the house. There he saw Tom Gurua and David Bawai struggling with the teacher and when the teacher saw him he left the two and returned to the canvas and bent to pick up something when David Bawai shot him. I found him guilty because the killing was the consequence of prosecution of a common unlawful purpose.
    
40. The parity principle discussed in those cases explain the justification for there being differences in sentences of offenders of the same criminal enterprise, irrespective of what the crime might be or how serious or trivial such case may be.
    
41. The killing was the consequence of David Bawai and Tom Gurua trying to abduct the deceased’s daughter. Could that have been in Joseph Nimagi’s contemplation initially? I do not think so in the absence of direct evidence. His guilt is due to the fact that he was at the scene when either David Bawai or Tom Gurua shot and killed the deceased. But he himself was not personally involved in the struggle.
    
42. It is therefore proper that when sentencing the three, I must separate Joseph Nimagi from Tom Gurua and David Bawai who are the principal perpetrators in the failed abduction of the deceased’s daughter that led to the eventual shooting. Both Tom Gurua and David Bawai are the instigators of the sudden change of design in their criminal enterprise or purpose, namely, to abduct the deceased’s daughter.
    
43. All three are first offenders and are relatively young although Joseph Nimagi is much younger than Tom Gurua and David Bawai. I have considered their personal antecedents and their background and all those matters that they themselves advanced in their own behalf as well as the submissions in mitigation of penalty by their counsel. Given the support of the authorities I cited above on parity of sentences between co offenders in a joint criminal enterprise, I am of the view that both Tom Gurua and David Laiam Bawai must be punished more severely than Joseph Nimagi. These two appear to be the ringleaders and they were calling the shots that night. The evidence is undisputed that it was Tom Gurua’s idea for them to go to Marian Hill that landed them in this trouble. As the older boys they must be expected to think and act more responsibly in the company of younger boys who easily follow any directions from elder boys in their peer groups.
    
44. A strong deterrent sentence is necessary to punish the offenders as well as to send a clear message to the public at large that sentences for serious crimes are going up. I therefore sentence the prisoners Tom Keroi Gurua and David Laiam Bawai to fifty years imprisonment in hard labour and Joseph Nimagi to twenty years imprisonment in hard labour.
    

Lawyer for the State: Public Prosecutor
Lawyer for the Respondent: Public Solicitor

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^[1] (1967) 86 W.N. (Pt.1) (N.S.W.) 272 at p. 277.