State v Siune [2006] PGNC 112; N5014 (21 December 2006)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOs 384 & 385 OF 2003

THE STATE

V

JOHN KANUA SIUNE AND KENNETH KUNDA SIUNE

Kimbe: Cannings J
2006: 13 October
19, 21 December

SENTENCE

CRIMINAL LAW – Criminal Code, Division V.2 (homicide etc) – Section 300 (murder) – sentence after trial – offenders murdered a man they suspected of killing a friend by sorcery.

Two men were convicted after a trial of murdering a man they suspected had killed a friend of theirs by sorcery. It was a mob attack. The victim was bashed to death.

Held:

(1) The starting point for sentencing for this sort of vicious, mob killing, motivated by a belief in sorcery, is 20 to 30 years imprisonment.

(2) Mitigating factors are: the offenders expressed remorse and have no prior convictions.

(3) Aggravating factors are: direct and brutal killing; mob attack; no intervening cause of death; strong intention to do serious harm; deceased had no pre-existing, susceptible condition; vicious assault; death was a foreseeable consequence of the assault; offenders’ role in the killing was not minor; did not confess; did not plead guilty; not youthful offenders.

(4) A sentence of 25 years was imposed on each offender. The pre-sentence periods in custody were deducted. No part of the sentences was suspended.

Cases cited

The following cases are cited in the judgment:

Manu Kovi v The State (2005) SC789
Simon Kama v The State (2004) SC740
The State v David Yakuye Daniel (2005) N2890
The State v Jacky Vutnamur and Kai Kialo (No 2) (2005) N2868
The State v John Kanua Siune and Kenneth Kunda Siune CR No 384 and 385 of 2003, 10.10.06
The State v Sebastian Justin Kelly CR 75/2001, 20.05.05

SENTENCE

This was a judgment on sentence for murder.

Counsel
F Popeu and R Auka, for the State
O Oiveka, for the offenders

INTRODUCTION

1. CANNINGS J: This is a decision on sentence for two men convicted after trial of the murder of another man.

BACKGROUND

2. A young man, Gabriel Vincent, died at Kimbe General Hospital in October 2001. Shortly afterwards, a haus krai was held over a period of two or three days at the block belonging to Gabriel’s father, Vincent Kondum, at Mandopa oil palm settlement, near Kimbe.

3. There was a large gathering of people at the haus krai. Allegations were made that Gabriel’s death was caused by sorcery. A number of people who were suspected to be sorcerers were taken from the haus krai to a nearby block and assaulted. One of the suspected sorcerers, Peter Goiye, was bashed to death in a mob attack, which was witnessed by a number of the other suspected sorcerers, including his wife. They gave evidence in the trial against the two men convicted of the murder of Peter Goiye: the offenders, John Kanua Siune and Kenneth Kunda Siune.

4. Further details of the circumstances in which the offence was committed are set out in the judgment on verdict (The State v John Kanua Siune and Kenneth Kunda Siune CR No 384 and 385 of 2003, 10.10.06).

ANTECEDENTS

5. Neither offender has any prior convictions.

ALLOCUTUS

6. I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of their response follows:

John Kanua Siune

This is my first time to be before the National Court. I am 39 years old, married with four children and my wife is pregnant. Two of my children are at school. I pleaded not guilty but the court has found me guilty. There were many others charged with this offence but they did not face trial like we did. Some compensation was paid but we were in custody at the time. We accept that the court has told us that we were wrong. My brother and I sincerely apologise to the relatives of the deceased. We also apologise to the court. We have families to look after. As the court has found us guilty it will be difficult for our families to be looked after properly if we spend a long time in jail. School fees will be a big problem. I ask for the court’s mercy and that the court consider me for probation.

Kenneth Kunda Siune

I am 31 years old, married with four children. One child is going to school. I am very concerned about the welfare of my children if I go to jail for a long time. Other people will not look after them. My wife left for the village two years ago and I have been looking after the children myself. I ask for the court’s mercy and that the court considers me for probation so that I can look after my children.

PRE-SENTENCE REPORTS

7. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received pre-sentence reports under Section 13(2) of the Probation Act. The reports, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, are summarised below.

JOHN KANUA SIUNE

Age: 39-year-old male.

Family background: parents are from Chimbu Province – came with his parents to WNB in 1970 when his father won an oil palm block at Kavui oil palm settlement – second born in family of six – father now deceased; mother alive, old and frail – lives on the family block at Kavui, with his brother, co-offender Kenneth, and their families.

Marital status: Married with four children.

Education: grade 8.

Employment: some short-term employment over the years, including two years as store keeper with Hamamas Trading, Kapore.

Health: OK.

Financial status: self-supporting from sale of oil palm, harvested on block.

Plans: wants to stay on and develop his block.

Attitude of family members: his older brother, Bomai Siune, spoke on behalf of the other family members – if the offender goes to jail for a long time, there will be major problems for his wife and children as there will be no one to look after them – he, Bomai, is not in a position to assist – the family does not feel that it is fair that the two offenders be punished heavily as their co-accused have been acquitted – the family will help them pay compensation if ordered by the court.

Community background: the offender does not have a good reputation in all parts of the Kavui community – regarded as a good talker but a troublemaker in some quarters – other people regard him as a strong community person with good ideas for encouraging youths in sport, church and community activities.

Compensation issue: a community leader, Vincent Kondum [the father of the late Gabriel Vincent] says the community is still prepared to pay compensation to the relatives of the deceased, Peter Goiye – the problem could have been sorted out outside the court but the deceased’s relatives have increased the compensation figure – Bridgetta Goiye (the wife of the deceased) says she and her relatives have requested K20,000.00 compensation for the death of her husband but nothing has been paid – extra compensation has also been sought for destruction of properties that occurred around the same time as her husband’s murder.

Recommendation: the offender is suitable for probation.

KENNETH KUNDA SIUNE

Age: 28-year-old male.

Family background: very similar to the first offender who is his brother – Kenneth was born and raised in WNB in 1970 when his father won an oil palm block at Kavui oil palm settlement – fifth born in family of six.

Marital status: Married with four children – but wife has left him.

Education: grade 8, Hoskins Secondary School.

Employment: no formal employment history.

Health: problem with sight in his left eye – otherwise OK.

Financial status: no cash on hand and no bank account – relies on proceeds of sale of oil palm, harvested on block – but financial matters are managed by his older brother, his co-offender John Kanua Siune.

Plans: wants to stay on and develop his block; also wants to enrol at Moramora Technical School to do an auto electrical course.

Attitude of family members: his older brother, Bomai Siune, spoke on behalf of the other family members – if the offender goes to jail for a long time, there will be major problems for his children as there will be no one to look after them – he, Bomai, is not in a position to assist – the family does not feel that it is fair that the two offenders be punished heavily as their co-accused have been acquitted – the family will help them pay compensation if ordered by the court.

Community background: the offender does not have a good reputation in all parts of the Kavui community – regarded as a lazy and a troublemaker, when under the influence of alcohol; not a violent person, but a nuisance when drunk – other people regard him not as a troublemaker, but just lazy.

Compensation issue: a community leader, Vincent Kondum [the father of the late Gabriel Vincent] says the community is still prepared to pay compensation to the relatives of the deceased, Peter Goiye – the problem could have been sorted out outside the court but the deceased’s relatives have increased the compensation figure – Bridgetta Goiye (the wife of the deceased) says she and her relatives have requested K20,000.00 compensation for the death of her husband but nothing has been paid – extra compensation has also been sought for destruction of properties that occurred around the same time as her husband’s murder.

Recommendation: the offender is suitable for probation.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Oiveka highlighted the following mitigating factors: the offenders had a genuine belief in sorcery; they have been made scapegoats for what happened – three others were acquitted after the prosecution elected not to go ahead with the case; some compensation has been paid; it was not a pre-meditated killing; first offenders.

9. The case fits into the second of the Manu Kovi categories. Therefore the starting point for determining a head sentence is in the range of 16 to 20 years and the court should impose a sentence below that because of the many mitigating factors.

SUBMISSIONS BY THE STATE

10. Mr Popeu, for the State, submitted that there were many aggravating factors: a bad murder caused by a mob attack; weapons were used; vicious attacks on the deceased and others; there was a degree of pre-planning, as the suspected sorcerers were identified and then rounded up before being assaulted.

11. The case fits into the third of the Manu Kovi categories. Therefore the starting point for determining a head sentence is in the range of 20 to 30 years. The court should impose a sentence of 22 or 23 years.

DECISION MAKING PROCESS

12. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what other sentences have been imposed recently in West New Britain for equivalent offences?
  
• step 4: what should the head sentence be?
  
• step 5: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. Section 300 of the Criminal Code provides that the maximum penalty for murder is life imprisonment. However the court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. The Supreme Court has in recent times laid down sentencing guidelines for murder, in two cases:

• Simon Kama v The State (2004) SC740 (Sevua J, Kandakasi J, Lenalia J);
  
• Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J, Lay J).
  

15. The starting points identified in these cases are summarised in the tables below.

TABLE 1: SENTENCING GUIDELINES FOR MURDER DERIVED FROM SUPREME COURT’S DECISION IN SIMON KAMA’S CASE

No	Plea	Details	Tariff
1	Guilty	No aggravating factors.	12 to 16 years
2	Guilty	Aggravating factors other than use of firearms and the commission of another serious offence.	17 to 30 years
3	Guilty	Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting to commit another serious offence.	31 years to life imprisonment
4	Not guilty	No aggravating factors.	17 to 21 years
5	Not guilty	Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting to commit another serious offence.	22 to 40 years
6	Not guilty	Aggravating factors including use of firearm or other dangerous weapons in the course of committing or attempting to commit another serious offence.	41 years to life imprisonment

TABLE 2: SENTENCING GUIDELINES FOR MURDER DERIVED FROM
SUPREME COURT’S DECISION IN MANU KOVI’S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-planning – minimum force used – absence of strong intent to do grievous bodily harm.	12-15 years
2	Trial or plea – mitigating factors with aggravating factors.	No strong intent to do grievous bodily harm – weapons used – some pre-planning – some element of viciousness.	16-20 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Pre-planned – vicious attack – strong desire to do grievous bodily harm – dangerous or offensive weapons used, eg gun, axe – other offences of violence committed.	20-30 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Premeditated attack – brutal killing, in cold blood – killing of innocent, harmless person – killing in the course of committing another serious offence – complete disregard for human life.	Life imprisonment

16. The guidelines in Kama and Kovi are not identical but in both decisions the court highlighted the increase in murder sentences over the years and the need to consider each case on its merits.

17. I consider that this case falls within category 2 of Kama, which would result in a sentencing range of 17 to 30 years. However, Kovi is the more recent decision. Therefore I will apply its guidelines while at the same time paying close attention to the dicta in Kama.

18. It was a vicious attack on an unarmed, innocent man and there was a strong desire to do grievous bodily harm. Therefore the case falls within category 3 of Kovi and the starting point is within the range of 20 to 30 years imprisonment.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?

19. Before I fix a sentence, I will consider other murder sentences I have handed down recently in West New Britain. These cases are shown in the following table.

TABLE 3: NATIONAL COURT SENTENCES FOR MURDER, WEST NEW BRITAIN, 2005-2006, CANNINGS J

No	Case	Details	Sentence
1	The State v Sebastian Justin Kelly CR 75/2001, 20.05.05	Guilty plea – vicious attack on a relative who was asleep and unarmed – Bialla, WNBP – offender used a bushknife – suggestion that the offender was mentally unbalanced.	20 years
2	The State v David Yakuye Daniel (2005) N2890	Trial – husband attacked the deceased (his wife) over suspected infidelity on her part – Kandrian WNBP – vicious attack, he stabbed her several times.	25 years
3	The State v Jacky Vutnamur and Kai Kialo (No 2) (2005) N2868	Trial (first offender) and guilty plea (second offender) – police officer shot dead in course of an armed robbery committed by a gang of which the offenders were members – neither offender fired any shots – convicted under prosecution of common purpose provisions of the Criminal Code Section 8.	15 years, 9 years

STEP 4: WHAT IS THE HEAD SENTENCE?

20. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be reduced below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point.

21. Three sorts of considerations are listed. Numbers 1 to 8 focus on the circumstances of the incident. Numbers 9 to 13 focus on what the offender has done since the incident and how he has conducted himself. Numbers 14 to 16 look at the personal circumstances of the offenders and give an opportunity to take into account any other factors not previously considered.

22. For sentencing purposes, I have detected no material differences between the offenders concerning the circumstances of commission of the crime, how each has conducted himself since the incident and their personal circumstances. The sentencing considerations are the same for each of them.

1. Did the offenders not directly kill the deceased? No. They killed him in a direct and brutal way.

2. Was just one person involved in the attack? No, it was a mob attack.

3. Was there some intervening cause of death? No.

4. Did the offenders not set out to hurt anyone? No.

5. Did the deceased or any other person provoke the offenders in ‘the non-legal sense’, eg did the deceased abuse or assault them? This is a neutral factor. In fact, the deceased did nothing to provoke the offenders but I accept that they each had a genuine belief in sorcery, which provided the motive for their unlawful actions.

6. Did the deceased have a pre-existing condition making him susceptible to serious or fatal injury by a moderate blow? No.

7. Can the attack on the deceased be classed as ‘not vicious’? No.

8. Can the death of the deceased be regarded as an unforeseeable consequence of the activity that the offenders were involved in? No.

9. Did the offenders play a relatively minor role in the activity that led to the death? No.

10. Did the offenders give themselves up and confess after the incident? No.

11. Did the offenders cooperate with the police in their investigations? Neutral.

12. Have the prisoners done anything tangible towards repairing their wrong, eg offering compensation to the family of the deceased, engaging in a peace and reconciliation ceremony, personally or publicly apologising for what they did? This is another neutral factor. They have been mediations and some attempts at compensation. However, they appear to have been half-hearted. The murder was committed five years ago, which seems ample time to sort out the problem. The verdict of guilty was entered two months ago, but no compensation has been paid in the intervening period.

13. Did the offenders plead guilty? No.

14. Have the offenders genuinely expressed remorse? Yes.

15. Is this their first offence? Yes.

16. Can the offenders be regarded as youthful or are their personal circumstances such that they should mitigate the sentence? No.

17. Are there any other circumstances of the incident or the prisoner that warrant mitigation of the head sentence? Neutral. It seems life will be tough for the offenders’ families if they spend a long time in jail. But that is the price paid by the families of those who commit very serious crimes. The pre-sentence report shows that both offenders have a mixed reputation in the community in which they live. So there is really nothing special about their personal circumstances that operates as a mitigating factor. I reject Mr Oiveka’s submission that they have been made scapegoats for what happened. They have been convicted of a very serious offence according to law. The prosecution of their co-accused was dropped for reasons best known to the Public Prosecutor. Perhaps their co-accused should have faced a full trial too. Even if that is the case, it is not a mitigating factor.

23. To recap, the mitigating factors are:

• No 14 – expressed remorse;
• No 15 – they are first-time offenders.
  

24. Aggravating factors are:

• No 1 – direct and brutal killing;
• No 2 – mob attack;
• No 3 – no intervening cause of death;
• No 4 – strong intention to do serious harm;
• No 6 – deceased had no pre-existing, susceptible condition;
• No 7 – vicious assault;
• No 8 – death was a foreseeable consequence of the assault;
• No 9 – offenders’ role in the killing was not minor;
• No 10 – did not confess;
• No 13 – did not plead guilty;
• No 16 – not youthful offenders.
  

25. The other factors (Nos 5, 11, 12 and 17) are neutral.

26. After weighing all these factors and bearing in mind that there are many aggravating factors than mitigating factors, the head sentence should be above the minimum of the starting point range. I impose a head sentence of 25 years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

27. The offenders have spent time in custody in connection with this offence and it is proper that those periods be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the terms of imprisonment the whole of the pre-sentence periods in custody, as shown in the following tables.

TABLE 4: CALCULATION OF FINAL SENTENCE JOHN KANUA SIUNE

Length of sentence imposed	25 years
Pre-sentence period to be deducted	10 months, 1 week, 4 days
Resultant length of sentence to be served	24 years, 1 month, 2 weeks, 3 days

TABLE 5: CALCULATION OF FINAL SENTENCE KENNETH KUNDA SIUNE

Length of sentence imposed	25 years
Pre-sentence period to be deducted	10 months, 1 week, 4 days
Resultant length of sentence to be served	24 years, 1 month, 2 weeks, 3 days

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

28. This is not an appropriate case in which to suspend part of the sentence. A life has been lost in a brutal and vicious attack. A man has been murdered in front of his wife. The offenders must spend a considerable time in jail. The issue of compensation has not been settled and the pre-sentence reports are not sufficiently favourable to warrant suspension or to convince me that I should set a minimum term in custody.

SENTENCE

29. John Kanua Siune, having been convicted of the crime of murder, is sentenced as follows:

Length of sentence imposed	25 years
Pre-sentence period to be deducted	10 months, 1 week, 4 days
Resultant length of sentence to be served	24 years, 1 month, 2 weeks, 3 days
Amount of sentence suspended	Nil
Time to be served in custody	24 years, 1 month, 2 weeks, 3 days

30. Kenneth Kunda Siune, having been convicted of the crime of murder, is sentenced as follows:

Length of sentence imposed	25 years
Pre-sentence period to be deducted	10 months, 1 week, 4 days
Resultant length of sentence to be served	24 years, 1 month, 2 weeks, 3 days
Amount of sentence suspended	Nil
Time to be served in custody	24 years, 1 month, 2 weeks, 3 days

Sentenced accordingly.

_________________________

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