State v Simbago [2005] PGNC 3; N2954 (26 September 2005)

N2954

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 438 of 1999

THE STATE

-V-

VINCENT SIMBAGO

WEWAK: KANDAKASI, J.
2005: 12th and 26th September

CRIMINAL LAW — Sentence – Murder – Guilty plea by prior offender – Series of planned armed gang robbery turning bad after first successful execution of plan – Vehicle stolen in first armed holdup – Driver and occupants taken hostage under gunpoint and driven away in high speed on way to effecting further armed holdups – Fatal motor vehicle accident due to high speed – One of the passenger hostages dying in the consequence – Vehicle damaged – Vehicle owned by an NGO – Prevalence of offence – Deterrent sentence called for – Life imprisonment imposed.

Cases cited:
The State v. Laura (No. 2) [1988-89] PNGLR 98
The State v. Raphael Kimba Aki (N0.2) (Unreported Judgment) N2082.
Simon Kama v The State ((2004) SC740.
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (01/04/04) SC741.
Kepa Wanege v. The State (01/04/04) SC742.
The State v. Charlie Langu (No 2) (26/08/04) N2652.
The State v. Tony Pandau Hahuahori (No 2) (21/02/02) N2186.
The State v. Vincent Malara (20/2/02) N2188.
The State v. Kerowa Kana (16/08/03) N2376.
The State v Charles Maniwa and Joseph Utura Maniwa (22/06/04) N2674.

David Bawai Laiam & Ors (01/04/04) SC741.
Counsels:

Mr. A. Kupmain for the State.
Mr. J. Mesa for the Prisoner.

DECISION ON SENTENCE

26th September 2005

KANDAKASI J: You pleaded guilty to one count of murder contrary to s.300 (1) (b) of the Criminal Code. When presenting the indictment, the State invoked Sections 6 and 7 also of the Criminal Code, which effectively made you a principle offender by reason of you acting in association with several others but did not directly, cause the death of the deceased.

The Facts

The relevant facts, which the State put to you during your arraignment and as they appear from the District Court depositions, admitted into evidence with your consent, are these. On Saturday 9th January 1999, a Elias Nara an employee of World Vision here in Wewak drove along the old Sepik Timbers road from the airport heading for the MAF compound to drop off a James Walange now deceased. With him were two of his children one aged less than 7 years and the other 9 years old in addition to the deceased and another person, Andrew Luke. This was around 8:15pm.

As Mr. Nara slowed down to avoid and or pass through potholes on the road, one masked man armed with a gun suddenly appeared in front of him pointing the gun directly at him. The gunman ordered Mr. Nara to stop the vehicle and he complied out of fear for his life and the safety of those with him at the time. By this time, two other men also masked and armed with a gun each appeared from the nearby bushes and joined in the holdup and they all ordered Mr. Nara to get out of the vehicle. A fourth person joined the hold up with a kitchen size knife, which he used to threaten Mr. Nara by placing it right on his chest and repeated the order for Mr. Nara to get out of the vehicle. The armed gang forced Mr. Nara out of the driver’s seat.

The gang also forced out at gunpoint the deceased and one of Mr. Nara’s sons who were in the cabin with Mr. Nara. Under the barrel of the gun, the gang forced, Mr. Nara, his son and the deceased to get onto the back of the vehicle, and join one of the other sons of Mr. Nara and the other passengers. They were all kept guard under gunpoint.

Meanwhile, one of the armed gang members took over the driver’s seat while the rest of the gang members got on the back with the victims of the hold up. The gang then drove of the vehicle at very high speed heading for the Hawain Road. Along the way, the gang stopped and picked up 2 more members of their gang. They stopped a second time along the way and tried to pick some more gang members without success. Thereafter, they drove onto the West Coast Road.

The gang drove on very high speed. As a result of the speed at which they were travelling, the driver lost control of the vehicle as he tried to negotiate a sharp bend at Magara Village. The vehicle went off the road and hit the embankment or drain and then went over the road. Because of the high speed, the impact was great, with people thrown all over the place. Once the vehicle came to a stop, and Mr. Nara was able to workout what happened, he realized that the deceased was not there in the vehicle. However, before he could do anything, one of the gang members put him and his two children under gunpoint and ordered them to get out of the vehicle and they complied out of fear for their lives. By this time, the children were openly crying.

The gangster who drove the vehicle then tried to drive the vehicle out off the drain without any luck. At this time Mr. Nara still under gunpoint then saw the deceased lying about 8 meters away but could not do a thing as he was under gunpoint. As this was happening, another vehicle approached. That disturbed the gang and caused them to flee from the scene of the accident. A Seventh Day Adventist pastor was in that other vehicle. He stopped and asked if there were any casualties. On finding that, the deceased sustained serious injuries in the accident, the pastor took the deceased then struggling for his life with injuries to his head, neck, chest and left arm, to the Wewak General Hospital at Boram. The deceased was pronounced dead the next day being the 10th of January 1999.

According to your record of interview with the police following your arrest, you planned the robbery with a Jack Mera. You carried one of the guns used in the hold up and taking the driver of the vehicle and his passengers’ hostages. Therefore, you were in fact the gang’s leader and main executioner of the plan to holdup. Part of your plan was to hold up a vehicle, then take the vehicle and use it to commit further armed holdups and robbery. The accident however, prevented you from carrying out your plans to carryout the other armed holdups and robberies.

Allocutus and Submissions

In your address on sentence, you said you were sorry for taking up the Court’s time. You also said sorry to God. You then said, at the time of committing the offence, you were 17 years old and now you are about 23 years old. Bearing that in mind you asked the Court to impose a penalty, which you can serve and return to your village, as you are the only one in your family. You finished by saying, you will not get involved in any criminal activity and asked the Court to exercise some mercy in your favour.

Neither you, nor your lawyer provided this Court with any further information about your background apart from what you personally disclosed to the Court. From the information on file however, I note that, you are a single young man and that you have no formal employment. Then from your antecedent report, it is clear that, you have a prior conviction for stealing and being placed under probation. You committed this offence whilst under probation. In view of that, your lawyer abandoned initial submissions that you have no prior convictions.

Finally, your lawyer urged the Court to take into account your guilty plea to a very serious offence. That saved the State and the Court the time and money that could have been out laid to secure your conviction.

The Offence and Sentencing Trend

The offence with which you have been charged and found guilty and convicted of is provided for by section 300(1) (b) these terms:

"(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

....

(b) if death was caused by means of an act—

(i) done in the prosecution of an unlawful purpose; and

(ii) of such a nature as to be likely to endanger human life; or

...

Penalty: Subject to Section 19, imprisonment for life."

In The State v. Laura (No. 2,)[1] the Court set out the following as the appropriate guidelines for sentencing in murder cases:

1. On a plea of guilty where there are no special aggravating factors, a sentence of six years;
2. Sentences of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused; and
3. On a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.
   

I took the view in The State v. Raphael Kimba Aki (No.2),[2] after reviewing the sentencing trend in this kind of cases that:

"Clearly, the guidelines set in the Laura No. 2 case, has to be reviewed in the light of the sentencing trends in manslaughter cases as well as the increase in murder cases since those guidelines were set. The guidelines were given on the 3rd of April 1989. That was more than 11 years ago and may now be out dated especially in the number of years to be imposed for each of the categories. Going by the sentences currently being imposed in manslaughter cases, the starting period for murder cases should now be increased to 10 years or more. Thus, the guidelines in the Laura No. 2 case should be varied in the following way:

1. On a plea of guilty where there are no special aggravating factors, a sentence of ten years;
2. Sentences of less than ten years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;
3. On a plea of not guilty, a range of sentences from twelve years to fourteen years and more in a case where aggravating factors are evidenced would be appropriate."
   

The Supreme Court in its recent judgment in Simon Kama v The State ((2004)[3] reviewed and established new sentencing guidelines for murder cases. In so doing, the Court had regard to the judgment of the National Court in the above case as well as other judgments of the National and Supreme Courts in several other cases and said from page 22:

"On the court’s part, we suggest that following the establishment of the guilt of an accused, either on a plea or after a trial, the Court approach sentence with a serious consideration of the maximum prescribed penalty first. Then allow the offender to make out a case for a lesser sentence. An offender could easily do that by pointing out to the factors in his mitigation with the appropriate evidence where evidence is required. Once the offender is able to do that only then should the Court carefully consider the factors both for and against an imposition of the maximum penalty. At that stage, the categorization of the kind of offence under consideration could become relevant and useful. With these qualifications in mind we are of the view that the guidelines set by State v Laura (No 2) and Simbe v The State for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a) Where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) Where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) Where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to commit another serious offence, a sentence of thirty-one (31) years to life imprisonment;

(d) On a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty-one (21) years;

(e) On a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty-two (22) to forty (40) years;

(f) Where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to commit another offence, a sentence of forty-one (41) years to life imprisonment.

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence, [that] may warrant a sentence lower than any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A Judge may therefore depart from them in appropriate cases for very good reasons."

The same Supreme Court endorsed these guidelines and views in Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State[4] and Kepa Wanege v. The State.[5] In the former, the appellant appealed against a sentence of 50 years for murder out of a failed armed robbery. The Supreme Court dismissed that appeal on the basis that the sentence was lenient. It said the appellant should have been given the maximum of life imprisonment. In the later case, the appellant appealed against a sentence of 20 years also for murder. The Supreme Court dismissed that appeal for the same reason. There, the Court noted that, the appellant had intended in association with his father to kill the deceased who was not armed in anyway over a pre-existing land dispute. The appellant used an axe to commit the offence.

Since that decision of the Supreme Court, the National Court has accepted and applied these guidelines to arrive at decisions on murder cases. A recent example of that is Cannings J.’s, judgment in The State v. Charlie Langu (No 2).[6] There his Honour noted and I agree that:

"There has been widespread concern about the prevalence of murders and other violent crimes, particularly murders committed in the course of armed robberies or other unlawful activities. The Court was critical of the length of terms of imprisonment that have been imposed in murder cases. They have been too lenient. The Court was critical of the propensity of the Public Prosecutor to indict for murder, when the seriousness of the charge warranted a wilful murder indictment; or to indict for manslaughter instead of murder. The Court also criticised the Public Prosecutor for not using his power to cross-appeal against apparently lenient sentences. Too much of the Court’s valuable time and resources is being wasted on frivolous prisoner appeals.

The Supreme Court emphasised that life imprisonment for murder is the starting point when the Court has to work out what the appropriate sentence is.

The Supreme Court is saying clearly that the National Court must impose longer sentences than it has in previous years. This will underline the gravity of the crime of murder and provide a deterrent to the commission of such serious crimes."

Applying the above guidelines to the case before His Honour, His Honour imposed a sentence of 25 years on a charge of murder following a conviction after trial. The prisoner committed the offence in pursuit of an unlawful purpose, namely attacking another family from one village to the other.

Before the change in the guidelines on sentencing in murder cases, I imposed a sentence of life imprisonment in The State v. Tony Pandau Hahuahori (No 2).[7] That was a case of murder out of planned armed highway robbery, which went bad. It involved the use of firearms and other dangerous weapons. Failing an armed holdup of a PMV truck, the gang used the guns they had to shoot the driver and the passengers in a bid to stop them.

The gunshots resulted in 6 people being seriously injured. They were rushed to the Wewak General Hospital at Boram for medical treatment. Of the 6 injured, 5 managed to recover. Unfortunately, one of them could not survive despite medical intervention as his brain was damaged by a gun shot injury to his head. Out of the 5 that recovered, one of them lost the total use of one of his eyes.

In imposing the sentence of life imprisonment, I noted that the accused produced no license authorizing him and his accomplishes to carry the guns and use them. Therefore, I found that he was also committing an offence when he carried a gun without license.

I also observed as I did in the case of The State v. Vincent Malara[8] that, the crime of armed robbery is on a very sharp increase. I noted then that, at the time of the sentence, there were about 100 pending robbery cases here on the Wewak circuit listed alone. No doubt, people are living in great fear because of people like you who are terrorizing and stealing indiscriminately from innocent people who are trying to make a living amidst difficult economic times. Further, I noted that, there are ugly scenes through the cities and towns of the country with all kinds of security wires and fences to keep away people like you. Our streets and highways are becoming very unsafe and risky to travel on. We are supposed to be a free and democratic society living in peace with one another. Yet, people of your kind are imprisoning our people. Your kind of people are preventing our country from progressing because of fears of armed robbers like you who are prepared to kill if they do not get what they set out to get unlawfully with the use of force and with threats or actual use of violence.

Given this situation, I said in that case that, the peace loving majority of our people are constantly calling for stiffer penalties to respond to the big increase in crimes of violence such as armed robbery, rape and murder. The courts have a constitutional and social responsibility to appropriately punish bad elements in society like you after Parliament has prescribed a maximum penalty of life imprisonment for crimes like armed robbery, murder and rape.

I then noted that, fully appreciating the responsibility placed on it, the Court in the case of the prisoner’s co-accused imposed a sentence of 30 years each in the light of their guilty pleas and not playing lead roles and having no prior convictions.

Your Case

Turning to your case, the question is, what is an appropriate sentence for you? An answer to that question is dependant upon the factors in your mitigation on the one hand and on the other, the factors in aggravation. The sentencing trend in the kind of offence you committed in the particular circumstances surrounding its commission also have much to say on what sentence you should receive. I therefore, first turn to a consideration of the factors in your mitigation.

You have only one factor in your favour, which is your guilty plea to a very serious charge. In pleading guilty, you saved the State the time and money it could have spent to secure your conviction after a trial. Usually, guilty pleas help reduce the kind of sentence an offender should receive in any given case. Nevertheless, this is not automatic. In appropriate cases, guilty pleas could be disregarded particularly in cases where an offender had no choice but to so plead. In The State v. Kerowa Kana,[9] per Jalina J., the National Court decided against a reduction of the prisoner’s sentence on account of his guilty plea. His Honour arrived at that decision because he found that the prisoner had no choice but to plead guilty.

In your case, you admitted to committing the offence in your record of interview with the police. Other witness statements on the District Court Depositions, now in evidence before me also positively identify you as one of the gang members that carried out the armed holdup and the being responsible for the death of the deceased. I thus find that, you had no choice but to plead guilty and you did. I will therefore have little or no regard to your guilty plea.

The only other factor that might be considered in your favour is your claim in allocutus that you were 17 years old at the time of the commission of the offence. However, your antecedent report puts your age then as 17 years old in 1998, when you had your first conviction recorded against you. Therefore, you were 18 years old at the time of the commission of this offence.

Whilst initially the Courts have been lenient toward young offenders, that has changed now in view of the increased number of youths in the age group 15 – 19, committing such serious offences as rape, armed robbery and or murder. I noted this in the cases of The State v Charles Maniwa and Joseph Utura Maniwa[10] and cited the Supreme Court decision in The State v. David Bawai Laiam & Ors.[11] as authority for that proposition. What this means is that, your plea of youthfulness has little or no effect on the kind of sentence you should receive.

Against these two mitigating factors, there are a number of serious aggravating factors against you. Firstly, you have a prior conviction for stealing and being in possession of stolen property in 1998. Clearly therefore, you are not a first time offender. You developed a habit of stealing from which you appeared to have graduated to conducting armed holdups. This was despite the District Court placing you on a 12 months good behaviour bond, which you breached.

Secondly, the evidence before the Court with your consent clearly shows that, you and one of your accomplishes planned a series of armed holdups and robbery. The first was to holdup a motor vehicle and then use that vehicle to conduct further and other armed holds along the highway to rob innocent people of their hard-earned cash and other valuables. You were therefore, one of the main actors and not a passive participant. As noted in The State v. Tony Pandau Hahuahori (No 2),[12] offenders who play a lead role in the commission of an offence get higher or stiffer penalties. There is neither any basis nor is there any argument by you against that approach applying in your case.

Thirdly, you carried and used a firearm against an innocent father, his two small children and two others, including the deceased. There is no evidence of you having a license to carry the firearms and use them in the way you did or otherwise. You therefore committed another offence in the process. You used the firearms to terrorise an innocent father, his two small children and two others, including the deceased. I noted this as a serious aggravating factor in the The State v. Tony Pandau Hahuahori (No 2),[13] and I continue to do so in your case.

Fourthly, you took an innocent man with his two small children and two others, including the deceased hostage under gunpoint. You denied and breached these innocent people’s constitutional right as human beings and their liberty guaranteed under the Constitution. You raised serious levels of fear into them. The deceased died so his fears have died with him. Unfortunately, Mr. Nara and his two children and his other adult passenger will live with the memories of the terrible ordeal you put them through in the way described in the summation of the facts in this judgment. My brother Justice Sevua noted this as a serious factor in aggravation in The State v. Gilbert Monai.[14] I find this is a very serious aggravating factor against you.

Fifthly, you acted in a manner that seriously endangered the lives of Mr. Nara, his two small children, the deceased and another adult person who were with Mr. Nara in his vehicle when you held them up, took them hostage and proceed to executing the next part of your series of armed robberies. You were so intent on executing your planned robberies that you were prepared not to care and in fact cared less about the precious human lives you had in your hands. The death of the deceased is a living testimony of the extreme danger you put those innocent lives through. Those who have survived can and will only thank the good Lord in Heaven for sparing their lives. If it were not for God’s helping hand, I am sure they would all have died and you would be in for multiple charges of murder.

Sixthly, you committed the offence whilst in the course of pursuing another serious offence, namely armed robbery, after having carried out one armed holdup already. You were simply not satisfied with taking of the vehicle from Mr. Nara. Instead, you were selfish and greedy and wanted to conduct further armed holdups. In so doing, you demonstrated that you and your gang were above the law and that you could carry on a series of serious offences. Such a conduct and attitude is unacceptable in our society. Your kind of conduct is tearing the country apart. It must therefore be stopped with the imposition of appropriate penalties designed to send the desired message to anyone else contemplating an engagement in such a conduct.

Further, the evidence shows that, the vehicle you took away from Mr. Nara at gunpoint was driven off the road resulting in a very fatal motor vehicle accident. Your accomplish driver, Charlie tried to drive the vehicle out but could not. No doubt, this resulted in some serious damage to the vehicle. That would have resulted in extra-unbudgeted costs to the owner of the vehicle, which I note is a non-government organization that exists to help the people of PNG. Therefore, what you did was a very shameful and disgraceful display of ungratefulness.

Finally, I note that the offence of armed robbery and deaths arising out of them is on the increase. This is in addition to the crime of armed robbery on highways and streets and elsewhere being on a sharp increase. Similarly, the offence of murder and all other instances of unlawful killing are on the increase. In much the same way, the number of unlicensed and ready carriage and used of firearms is on the increase. This alone call for a much stiffer penalty than those imposed to date.

Having regard to these serious aggravating factors, I note that the circumstances in which you committed the offence is far more serious than those I found to exist in The State v. Tony Pandau Hahuahori (No 2).[15] There are only two difference of any significance between that case and your case. Firstly, in your case, you pleaded guilty while it was a trial in that case. Nevertheless, I reiterate what I already said about your guilty plea. Even if that were not the case, I am persuaded beyond any doubt whatsoever, that the factors in aggravation far outweigh your only factor in mitigation. Secondly, in that case, guns were used to kill and injure innocent passengers in a PMV. Here, you and your accomplished drove the vehicle at very high speed and endangered the lives of about 5 people. That directly resulted in the death of the deceased. Both of the conducts in that case and in your case, were illegal, endangered human lives and did result in the loss of one life. Your case is worse than that case because you did what you did to further several other planned armed holdups and robberies.

In the circumstances, you deserve a sentence beyond that which was imposed in The State v. Tony Pandau Hahuahori (No 2),[16] which was life imprisonment. Unfortunately, life imprisonment is the maximum penalty prescribed for the offence of murder. I therefore have no choice but to impose it and I do. Given that sentence, it is unnecessary to consider any reduction for the time spent in custody awaiting your trial and sentence. In the end, I order that you serve your sentence of life imprisonment at the Boram CIS. A warrant of commitment shall issue forthwith in those terms.
_____________________

Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor

---

^[1] [1988-89] PNGLR 98.
^[2] (Unreported Judgment) N2082.
^[3] SC740, per Sevua , Kandakasi , Lenalia JJ.).
^[4] (01/04/04) SC741, per Sevua, Kandakasi, Lenalia JJ.
^[5] (01/04/04) SC742, per Sevua, Kandakasi, Lenalia JJ.
^[6] (26/08/04) N2652.
^[7] (21/02/02) N2186.
^[8] (20/2/02) N2188.
^[9] (16/08/03) N2376.
^[10] (22/06/04) N2674.
^[11] (01/04/04) SC741.
^[12] Opt Cit, note 7.
^[13] Ibid.
^[14] (09/06/04) N2617.
^[15] Opt Cit. note 7.
^[16] Ibid.