State v Puli [2003] PGNC 23; N2488 (22 December 2003)

N2488

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

CR 318 OF 2003

THE STATE

V

A’ARON PULI
(‘Prisoner’)

Waigani: Davani .J
2003: 4, 22 December

CRIMINAL LAW – Sentence – Wilful murder – search for a victim to kill – a revenge attack – whether worst type of killing – Death penalty or term of years – Aiding and abetting in the killing, ss. 7 and 8 of Criminal Code Act.

Cases cited:
Omowo Yirihim v the State [1976] PNGLR 188
Goli Golu v the State [1979] PNGLR 653
Ure Hane v the State [1984 PNGLR 105
Gimble v the State [1988-89] PNGLR 271
State v Ian Napolean Seteb N1478 31.10.96
Tony Imuni Api v the State SCRA 16 of 2001

Counsel:
A. Kupmain for the State
B. Takin for the Accused

22 December 2003

DECISION
(on sentence)

DAVANI .J: On 30 October 2003, this court found you guilty of the wilful murder of one Mosely Kia (the ‘Deceased’), a young 19 year old man from the Enga Province. He had just completed his grade 10 and was waiting the results of his exams when this happened. The court found that you had aided and abetted in the killing of this young man, transporting in your own truck the murderers who committed the offence. The court found that you transported the persons who actually killed the Deceased, to the United Church Gerehu stage 3, where the fatal blows were inflicted on the Deceased, you waited for the murderers whilst this murder was being perpetrated and then you travelled with those murderers through the Gerehu suburb warning other Engans that you and your counterparts had just killed a young man from either Kerema or Goilala and that your wantoks should be alert.

Mitigating factors:

I have heard submissions that you are a family man, in your mid-50’s. You have 8 children in primary school to University. You are a well educated man having completed tertiary technical education and that you were doing a civil engineering course at the Lae University of Technology when you left in mid 1979 to pursue politics. You are now a businessman in you own right. You are an elder in the SDA church and this is your first conviction. I have also heard character evidence from an SDA church elder that you are a good man and have never been known to be involved in criminal activities.

Aggravating factors:

You were instrumental in transporting the young man’s killers. The manner of death for this young man is horrific to say the least, in that he was chased and cut several times with bush knives. The Post Mortem report in evidence before me dated 3.10.02 states the cause of death to be a fracture at the base of the skull. The other findings were;

"1. 100 m long transverse, linear fracture at base of the occipital bone;

2. Minimal subarachnoid bleeding base of skull;
3. Subgaleal haematoma extending from base of the neck to the occiput region and towards the right ear;
4. Laceration 30 x 10 mm on left eye brow;
5. Haemorrhage under skin beneath left ear."
   

Your plea of not guilty also meant the court had to sit and hear evidence for 8 days, then later spend time shifting through and analyzing the evidence before it handed down decision on verdict.

The law on sentencing:

You and your wantoks were out for revenge. The evidence is that after an Engan man was involved in a fight with some young men at Gerehu where he was severely beaten, you and your wantoks then went out looking for youths to kill to avenge your wantok. You are a leader of your community here in Port Moresby, you are a church leader and a family man. Why did you then decide to take the law into your own hands by committing an indiscriminate killing? The irony of the whole thing is that you thought the person you had just killed was from Kerema or Goilala but he was an Engan, from your own province. One can say that fate can be cruel. Maybe the almighty had something to do with this to show you that you as a church elder, must practice what you preach. You cannot preach love and yet show hate by your actions. Your involvement in killing a fellow Engan will, I hope, tell you and others that indiscriminate payback killings must stop, here, and in other provinces. These actions only create more animosity, hate and anger. We are living in the 21st century. Let us all wake up to that fact. You must put aside tribalism and regionalism if we as a country are to progress into the 21st century and beyond.

The law is clear, that the maximum penalty for wilful murder is death subject to the court’s sentencing discretion under s. 19 of the Criminal Code Act which of course means the court must consider the circumstances of this case because each case must be determined on its own set of circumstances. In this case, you aided and abetted in the Deceased’s killing. You were caught by ss. 7 and 8 of the Criminal Code Act by your actions. By this I refer to what I said earlier that you were with the group of man who chased the Deceased and cut him which led to his death and you waited for them whilst they did this. That act is not only gruesome but shows you were intent on avenging the beatings inflicted on John Tanda so you were prepared to use your vehicle to carry out the killing. As I said earlier, it is a twist of cruel fate that a fellow Engan was killed and you played a large role in his death. The Supreme Court has said that where two or more persons participate in a crime, each is responsible for the act of the other (see Omowo Yirihim v the State [1976] PNGLR 188). In this case, you were not just sitting there, you were waiting for them to do and complete this gruesome deed, then you all drove off, you being the driver of the getaway car, your car.

You have been convicted as a principal offender under s. 7 and 8 of the Criminal Code Act. Mr Takin, your lawyer, submits that your role in this does not warrant the life sentence and he proposed a term of 8 to 10 years. The State however submits to the contrary, that because this is a serious offence, that you were an active participant in the commissioning of the crime, that you are equally guilty and should be sentenced to life. Counsel for the State relies on the Supreme Court case of Gimble v the State [1988-89] PNGLR 271. In that case, the accused was the watchman in a robbery. His lawyer argued that the trial judge did not give proper weight to the fact that he was the watchman and not one of those who went inside and committed the assault. The Supreme Court held, at pg. 273 of Gimble (supra), that;

"The general rule is that all active participants in the crime should 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 getaway vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated."

In this case a young man’s life was needlessly taken away and cut short by people who have absolutely no respect or regard for human life, and you were one of them. It was a cold blooded, senseless, brutal killing. This young man’s parents and family now suffer because he is gone forever.

Your lawyer referred me to several cases when considering sentence, his submissions being that this killing does not fall within the ‘worst category’ of wilful murder cases. He cited Goli Golu v the State [1979] PNGLR 653; Ure Hane v the State [1984] PNGLR 105; Orosa Pogu v the State. In Ure Hane, a case where the appellant stabbed his wife 30 times, he was sentenced by the National Court to life imprisonment which was then reduced to 15 years in hard labour. The gist of Mr Takin’s submissions, more particularly the citing of Goli Golu and Ure Hane were that life sentences were reduced on appeal. (Goli Golu (supra) to 13 years).

Wilful murders occur in varying situations and are never uniform in the pattern and type of killing only that the killing is always intentional. I refer to the State v Ian Napolean Seteb N1478 decided on 31.10.96 by Sevua .J where he raised similar views. He said;

"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."

Although I am persuaded by the fact that you are not a criminal, that you are a good citizen of this country, notwithstanding, you allowed your emotions and personal affiliations to you wantoks take control and which resulted in your participation in this indiscriminate killing. The court must impose a sentence that will deter people from carrying out what appears to be ‘raids’ in search of victims to kill as payback.

I have considered State’s submission for a life year imprisonment more specifically their reliance on Tony Imuni Api v the State SCRA 16 of 2001 where the Supreme Court upheld a life imprisonment term imposed on the prisoner after he was found guilty of killing a 14 year old school boy by cracking his skull in several places by using rocks. The Supreme Court in upholding that sentence, said also that the prisoner should have been sentenced to death. I find this case is similar in that you and your relatives went looking for somebody to kill.

This court finds that it is not the death penalty but life imprisonment that is appropriate under the circumstances. I also urge the police to complete their investigations into this killing and to have the others who were involved brought before the courts and prosecuted.

This court sentences you to life imprisonment.
______________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : B.T. Gobu & Associates