State v Tom; State v Bobi (No 2) [2009] PGNC 65; N3675 (23 March 2009)

N3675

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 226 OF 2008

THE STATE

V

TUPIS TOM

AND

CR NO 504 OF 2008

THE STATE

V

NATHAN BOBI

(No 2)

Mendi: Makail, J

2009: 16th & 23rd March

CRIMINAL LAW - Sentence - Murder - Co prisoners - Death arising from night club drunken brawl - Mob attack - Powerful blow from fist - Left chest and abdomen - Respiratory failure and broken rib - First offenders - Prevalence of offence - 12 years imprisonment imposed - Act as personal and general deterrence - Criminal Code - Sections 19 & 300(1)(a).

Cases Cited:

Gimble -v- The State [1988-89] PNGLR 271
The State -v- Laura (No 2) [1988-89] PNGLR 98
The State -v- Gibson Mondo (2002) N2339
Simon Kama -v- The State (2004) SC740
Manu Kovi -v- The State (2005) SC789
The State -v- Steven Mul Mangi (No 2) (2005) N2993
The State -v- Nande Garaipe: CR No 227 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)
The State -v- Ronnie Kipol Pona: CR No 508 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)
The State -v- Soeto Wembu & Rose Sowell: CR No 229 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008)
The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008)
The State -v- Yuanis Ipiri (2008) N3512
The State -v- Juvenile "D" (2008) N3508

Counsel:

Mr. J Waine, for the State
Mr. P Kumo, for the two Prisoners

SENTENCE

23 March, 2009

1. MAKAIL J: On 13th March 2009, I found the two prisoners guilty of murdering one Ruben Arabe at Kamari village, Kutubu on the night of 27th September 2007 contrary to section 300(1)(a) of the Criminal Code. This was after they denied the commission of the offence and a two days trial was conducted to determine their guilt.

2. The background facts giving rise to how the killing occurred are found in my judgment on verdict of 13th March 2009. See The State -v- Tupis Tom: CR No 226 of 2008 & The State -v- Nathan Bobi: CR No 504 of 2008 (No 1) (Unnumbered & Unreported Judgment of 13th March 2009). I then heard submissions on sentence from both lawyers on 16th March 2009 and reserved my decision until 23rd March 2009 at 9:30 am and this is my decision.

BRIEF FACTS

3. The brief facts can be summarized as follows: the death of the deceased was a result of a typical night club drunken brawl. It was a case of a mob attack on one of their own mate, in fact a relative. On that tragic night of 27th September 2007 between 9 o’clock and 10 o’clock, the deceased, and the two prisoners were drinking beer together with some other people at Kamari club, in Kutubu of the Southern Highlands Province. An argument arose between the deceased and prisoner, Tupis Tom. The argument was over money. The deceased demanded Tupis Tom to give him money but Tupis Tom told him that he had no money left because he had spent it all on beer. The deceased swore at Tupis Tom by telling him to come and eat his penis. Tupis Tom being provoked by the deceased’s use of the foul or obscene language punched the deceased. This resulted in further exchanges of punches and wrestling between them.

4. The fight was broken up and Tupis Tom was removed from the club premises. While all these were happening, the co prisoner, Nathan Bobi also wanted to take part in the fight. He punched a nearby post 6 times and called out, "People die from my hands because I got power from Koiari". It was a sign of declaration of some kind of super natural power he possessed. The opportunity to attack the deceased came when Tupis Tom was removed out of the club and the deceased was standing alone. That was the time Nathan Bobi closed in on him. On seeing Nathan Bobi closing in on him, the deceased raised his hands in surrender and told Nathan Bobi that he did not want to fight anymore but Nathan Bobi punched him on his left side between his chest and abdomen. The blow was very strong as Nathan Bobi is big in stature and also worked as a baggage handler with Airlines PNG Limited prior to the commission of the offence. The blow left the deceased gasping for air and a broken rib. The deceased fell down to the ground and died a few minutes later.

ALLOCUTUS

Tupis Tom

5. On his allocutus, Tupis Tom told the Court that he is very sorry for the crime he committed. He says that the deceased swore at him but he did not assault the deceased. He went outside of the club because he argued with the deceased. He also says sorry to the relatives of the deceased and also his own family. He asks for leniency from the Court.

Nathan Bobi

6. On his allocutus, Nathan Bobi told the Court that he is from Tubage village and has not been in trouble with the law before. This is his first time. He says that the trouble he committed was a result of the Court finding him guilty. And so, he accepts the decision of the Court.

7. He also says that he has a small brother aged 19 and doing Grade 8 and a small sister, aged 16 and doing Grade 6. He is responsible for paying their school fees. Now that he is in custody, there is no one to pay their school fees. Besides them, he has an elder brother who is paralyzed and very old parents whom he took care of while working with Airlines of PNG Limited.

8. He also says that he operated a trade store in the village to generate income to support himself and his family in addition to the income he received from a vanilla garden, about 1 hectare, and a poultry project. Apart from these responsibilities back in the village, he is also the Chairman of Aihatobo clan and is concerned about the affairs of the clan group.

9. Finally, he says sorry to the relatives of the deceased, his own family members and the Court for what he did. He asks for leniency and perhaps a good behaviour bond.

THE LAW

10. Section 300(1) (a) of the Criminal Code is relevant for our purposes. It provides as follows:

"300. Murder.

(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:-

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person;

(b) ........;

(c) ........;

(d) ........;

(e) .......;

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

11. I note the maximum penalty under section 300(1)(a) of the Criminal Code for the crime of murder is life imprisonment.

PRISONERS’ SUBMISSIONS

Tupis Tom

12. Mr. Kumo of counsel for the prisoner, Tupis Tom gives an account of the personal details of the prisoner as follows:

* He is 20 years old;

* He is single

* He is from Kelan village;

* He completed Grade 2;

* He is a member of the Seventh Day Adventist Church, although he has backslidden;

* He was employed as a Chef with Awano Limited at the time of the offence;

* He has been in custody for 1 year and 6 months;

* His parents are dead;

* He has 6 sisters. 2 of them are attending Grades 8 and 9 respectively.

* He is responsible for his sisters well being; and

* He has not paid any compensation to the relatives of the deceased.

Nathan Bobi

13. As for the prisoner, Nathan Bobi, Mr. Kumo gives the following account as his personal details:

* He is 26 years old;

* He is single;

* He is from Tubage village;

* He completed Grade 10;

* He was employed with Airlines of PNG Limited at the time of the offence;

* Prior to that, he was employed by Air Niugini for 5 years;

* He has 2 brothers and a sister and responsible for their well being;

* He has been in custody for 1 year and 6 months; and

* He has not paid any compensation to the relatives of the deceased.

14. In mitigation, he concedes at the outset that the two prisoners’ cases were contested, hence a plea for leniency is not readily given by the Court. But he submits that the Court has discretion under section 19 of the Criminal Code to impose a lesser sentence than the maximum penalty of life imprisonment for the crime of murder. He submits that this is one case where the Court should exercise its sentencing discretion under section 19 of the Criminal Code by imposing a sentence less than the maximum.

15. First, he submits that although a person has been killed as a result of the actions of the two prisoners, it is not a worst case of murder. This is because there was no preplanning by the two prisoners.

16. Secondly, he submits that there was provocation in the non legal sense in that the deceased swore at one of the prisoner, Tupis Tom and this provoked him to assault the deceased. Although Tupis Tom fought with the deceased, he submits that the deceased did not sustain any notable injuries. Tupis Tom was removed from the club and it was Nathan Bobi who struck the fatal blow on the deceased. Unfortunately, the blow landed on the vulnerable part of the deceased’s body, resulting in his death. But he submits that the two prisoners did not attack the deceased with any object or weapon. They simply used their fists and that should weigh in their favour unlike other serious cases of murder where this Court had dealt with last year where weapons like kitchen and bush knives were used to kill the deceased.

17. Thirdly, he submits that the two prisoners had expressed remorse for their actions. They have said sorry to the Court, to the relatives of the deceased and their own families. Their expression of remorse is a sign that each had accepted criminal responsibility for the crime they have committed.

18. Finally, when taking all the mitigating factors and weighing them against the aggravating features that maybe present in this case, he asks that the case does not fall into the worst category of murder cases as Court categorized in the Supreme Court decision of Manu Kovi -v- The State (2005) SC789. In the circumstances, he asks for a sentence of 8 to 12 years. But whatever the sentence the Court imposes, Tupis Tom should be given a slightly lesser sentence as he was not the one who struck the fatal blow on the deceased although he started the fight against the deceased.

STATE’S SUBMISSIONS

19. Mr. Waine of counsel for the State submits that the offence of murder is a serious one which attracts a sentence of up to life imprisonment. He submits that there are a number of aggravating features in the prisoners’ cases. He lists them as follows:

* The prisoners pleaded not guilty to the charge of murder. This forced the State to prove the charge against them. It took the Court two days to conduct the trial. A few more days were spent by both counsel to prepare their submissions on verdict and after they presented their submissions, it took a couple of days for the Court to deliberate and finally hand down its decision where it found them guilty.

* The killing arose from a night club drunken brawl. It was Tupis Tom who started the fight by punching the deceased. Then it was Nathan Bobi who assisted Tupis Tom and punched the deceased. The deceased died at the scene shortly after the attack.

* The crime of murder is on the rise despite so many decisions of the Court in the past imposing hefty sentences on people who commit murder. It seems to have no effect at all on the public.

20. He cites a number of murder cases which I heard and delivered judgments last year as an indication of the rise in the crime of murder. These cases are:

* The State -v- Nande Garaipe: CR No 227 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008), a case where the prisoner pleaded guilty to a charge of murder. The prisoner attacked the deceased by striking the deceased on his head twice with a stone, resulting in the fracture of the skull. The Court sentenced him to 17 years.

* The State -v- Ronnie Kipol Pona: CR No 508 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008). In that case, the prisoner, a co wife killed a co wife after an argument over a sugar cane by stabbing the deceased once with a kitchen knife. She was sentenced to 17 years in prison for murder.

* The State -v- Tauseng Bange: CR No 973 of 2007 (Unnumbered & Unreported Judgment of 10th November 2008), another one of those cases arising from a domestic setting where the prisoner, suspected her husband of having an extra marital affair, followed her husband and his lover, the deceased to their own house in the night and confronted them. An argument arose between the prisoner and the deceased followed by the prisoner attacking the deceased by stabbing her on the chest once with a kitchen knife and she died. She was sentenced to 16 years in prison for murder.

21. Mr. Waine submits that whilst the prisoners in this case did not use any object or weapon when they attacked the deceased, the Medical Report of Dr Nolpi Tawang dated 5th October 2007 (Exhibit "P1") clearly shows that the deceased died from a fatal blow from one of the prisoners during the attack. Although there was no preplanning on the part of the two prisoners, he submits that the attack on the deceased by the two prisoners was vicious in itself given the fact that there were two up against one and that people had to intervene to stop the fight.

22. Finally, he submits that prisoners; case falls into the second category of murder cases of which Manu Kovi’s case (supra) describes, thus attracting a sentence between 16 and 20 years. In the circumstances, he asks a sentence of 18 years be imposed upon each of them.

REASONS FOR DECISION

23. The crime of murder of which the two prisoners have been found guilty of is a very serious one. It is a crime against another fellow human being. It is the premature termination of another human being’s life by another, although unintentional. The two prisoners must be told in no uncertain terms that they are responsible for the death of the deceased no matter how unintentional it was. They must be told that their actions has resulted in the death of the deceased and they will live with the guilt and shame of this crime for the rest of their lives even after serving their punishment imposed by the Court.

24. Murder may occur in different kinds of situations and, or with common or different kinds of mitigating and aggravating features. That is why the Court, in particular the Supreme Court, had categorized the various kinds of unlawful killings or murder cases to assist the Court to decide appropriate sentences for people who commit the crime of murder.

25. For example, the Supreme Court in The State -v- Laura (No 2) [1988-89] PNGLR 98, set the sentencing tariff in murder cases as follows:

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

4. More in a case where aggravating factors are evidenced.

26. The Supreme Court in its recent judgment in Simon Kama -v- The State (2004) SC740 reviewed and established new sentencing guidelines for murder cases. In so doing, said at p 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."

27. The judgment in Manu Kovi’s case (supra) is the latest judgment of the Supreme Court touching on sentences in murder cases. That judgment agreed with the judgment in the Simon Kama’s case (supra) that the time has come for an increase in the penalties and recommended that sentences in murder cases be increased as follows:

1. In an uncontested case, in an ordinary case with ordinary mitigating factors and no aggravating factors, a starting point of 12 years up to 15 years. A sentence below 12 years should be rarely imposed except in exceptional cases where there are special mitigating factors.

2. In a contested or uncontested case, with mitigating factors and aggravating factors, a sentence of 16 - 20 years imprisonment.

3. In a contested or uncontested case, with special aggravating factors and special mitigating factors whose weight is reduced or rendered insignificant by the gravity of the offence, 20 - 30 years.

4. In contested or uncontested cases, the maximum of life imprisonment should be reserved for the worst case of its kind such as the unexplained pre-planned vicious and brutal killing of an innocent and unarmed person using dangerous or lethal weapons substances; summary execution style killings; killings in full view of public without regard for the safety and lives of others, etc. These are cases where there are no mitigating factors or mitigating factors are rendered completely insignificant by the gravity of the crime.

28. And so, the question I ask is which category of murder case does these two prisoners’ case fall under?

29. In order to determine this question, I look at the each of the prisoner’s background as submitted by Mr. Kumo. Both prisoner are single and are between 20 and 26 years of age. Both were working at the time of the commission of the offence. Both are also responsible for caring and education of their other siblings. The prisoner, Nathan Bobi seems to have a well established small business in the village in the form of a trade store, sale of vanilla and poultry. I take all these matters into account in my deliberations on an appropriate sentence for each of them.

30. In terms of mitigation, first, they have no prior convictions; they are first offenders. I find this factor operating in their favour. Secondly, each had expressed remorse for committing the offence. Each had apologized to the family and relatives of the deceased and also to the Court. Each had also apologized to their own family and relatives. I take their expression of remorse into account in my assessment of an appropriate sentence for each of them.

31. Thirdly, I accept Mr. Kumo’s submission that although a person has been killed as a result if the actions of the two prisoners, there was no preplanning by the two prisoners. I hold this factor in their favour. Fourthly, I accept that there was provocation in the non legal sense in that the deceased swore at Tupis Tom and this provoked him to assault the deceased. I find this factor operating in favour of Tupis Tom.

32. Finally, I accept that although Tupis Tom fought with the deceased, the deceased did not sustain any notable injuries. It was Nathan Bobi who struck the fatal blow on the deceased. Unfortunately, the blow landed on the vulnerable part of the deceased’s body, resulting in his death. They did not attack the deceased with any object or weapon. They simply used their fists, so this water downs the gravity of the offence.

33. Against those mitigating factors, I find that there are aggravating factors present in each of their case. First, they pleaded not guilty to the charge and this had costs the Court time and resources to conduct a full trial to determine their guilt. It took two days for the trial and surely costs the State to bring in the State witness, Faso Adoms to testify against them. Then it took the Court a week to deliberate on the question of guilty. I hold this factor against them.

34. Secondly, I accept Mr. Waine’s submissions that the crime of murder is prevalent. It is happening as I speak. No matter how much work the law enforcing agencies like the Police and the Office of the Public Prosecutor are doing to combat or reduce this crime, it seems to be increasing day by day. As a result, the Court is flooded with such cases. I also agree with Mr. Waine’s observation that it is true that last year alone, in my first year as a judge, I dealt with many homicide cases, ranging from the less serious like manslaughter to the most serious one like wilful murder in this province alone. This is apart from the other provinces I had visited like Chimbu. I recall, I must have dealt with three cases of murder for the Southern Highlands Province alone but a total of seven homicide cases.

35. Two of these cases are those that Mr. Waine refers to in his submissions; the cases of Nande Garaipe (supra) and Ronnie Kipol Pona (supra) whilst the other, not mentioned is The State -v- Soeto Wembu & Rose Sowell: CR No 229 of 2008 (Unnumbered & Unreported Judgment of 16th May 2008) where I sentenced the prisoner, aged 60 to 15 years imprisonment in hard labour based on his plea of guilty for murdering his son in law when he chopped him on his head with a bush knife. The number that I have given are those that I had dealt with but it is anyone’s guess if we are to take into account the other cases that the other judges had dealt with before me. Surely, the number would exceed the number of cases I heard and decided last year. This figure is not a good indication of our country’s law and order situation. For these reasons, I will hold this factor against the two prisoners.

36. Thirdly, the death of the deceased was a result of a night club drunken brawl. Although I am unable to give an accurate figure of the number of murder cases arising from night club drunken brawls, that does not mean that there are none or less cases of such nature occurring in Papua New Guinea. But to give the parties an idea of how the Court has dealt with such cases in the past, I refer first to The State -v- Steven Mul Mangi (No 2) (2005) N2993, of which I find almost identical to this case. In that case, the prisoner was sentenced by His Honour Kandakasi J, at Wabag to 35 years in prison for killing the deceased during a night club drunken brawl. A knife was the medium of death during the fight between the prisoner and the deceased after he denied the charge of murder and a trial was conducted to determine his guilt.

37. The second case which arose from a slightly different setting but also from a drunken party is, The State -v- Gibson Mondo (2002) N2339. In that case, the prisoner was sentenced by His Honour Injia J, (as he then was) to 13 years imprisonment for manslaughter. The deceased died from a mob attack by the prisoner and a group of friends during a drinking party at Bumbu settlement in Lae. The deceased was accused of stealing the prisoner’s radio and in an attempt to escape, was punched and kicked. Further, a blunt object was used to hit him on the head which caused his death.

38. In my view, death arising from a night club drunken brawl should be considered a serious aggravating factor as it runs counter to the very purpose of having a night club. In other words, night clubs are places where people go to have a good time out with friends and relatives. They are places where people are supposed to roam around freely and at ease. They are not supposed to be places for fights and arguments. Yet often than not, they turn out to be "battle fields". For these reasons, I treat the death arising from a drunken brawl a separate and additional aggravating factor in the two prisoners’ case.

39. Fourthly, and as I said in my judgment on verdict, the Medical Report of Dr Nolpi Tawang dated 5th October 2007 (Exhibit "P1") describes the type of injuries sustained by the deceased and seems to be consistent with the type of attack on the deceased described by Faso Adoms during his oral evidence. He says that Tupis Tom was the first person to punch the deceased with his fist and Nathan Bobi was the second and last person to punch the deceased. It also states in its summary that the deceased sustained a fractured 8th rib and bruised traumatized left lung with haematoma and collapsed left lung. In conclusion, it states that the deceased died of respiratory failure due to collapsed left lung from a trauma and fractured 08th rib as a result of direct trauma. As I had found, it was the blow from Nathan Bobi on the deceased’s left side of the body that proved fatal. The injuries of the deceased are very serious and that is why he died.

40. From the description of the injuries in the medical report, to my mind, the two prisoners intended to cause serious grievous bodily harm to the deceased. I hold this factor against them.

41. Further, I also find that the attack was vicious although it was not preplanned by the two prisoners. It was vicious in the sense that the two prisoners attacked the deceased. Tupis Tom was the first to assault the deceased and Nathan Bobi was the second and last to assault the deceased. I hold this factor against them. Finally, I find that the prisoners did not make any customary compensation to the relatives of the deceased, thus I hold this factor against them.

42. In weighing the factors for and each of them, I find that the factors operating in their favour and the factors operating against them are on an equal footing. That means that, whilst there is some element of viciousness in the attack of the deceased, an element of causing grievous bodily harm to the deceased and powerful use of force with the fist, there is on the other hand, no preplanning, no use of weapon and there was de facto provocation. This leads me to reach a decision that it is not a worst case of murder I am dealing with here. Such a case would in my view fall under the first category of murder cases of which the case of Manu Kovi (supra) describes.

43. In reaching that decision, I am also guided by the decision in the case of Steven Mul Mangi (No 2) (supra), where His Honour Kandakasi J, sentenced the prisoner to 35 years in prison for killing the deceased during a night club drunken brawl. A knife was the medium of death during the fight between the prisoner and the deceased after he denied the charge of murder and a trial was conducted to determine his guilt. In the present case, no weapon was used although the deceased died from a night club drunken brawl. In either case, the prisoners denied the charge of murder and a trial was conducted to determine their guilt.

44. In the second case of Gibson Mondo (supra) His Honour Injia J, (as he then was) sentenced the prisoner to 13 years imprisonment for manslaughter. The deceased died from a mob attack by the prisoner and a group of friends during a drinking party at Bumbu settlement in Lae. The deceased was accused of stealing the prisoner’s radio and in an attempt to escape, was punched and kicked. Further, a blunt object was used to hit him on the head which caused his death. Again, the present case can be distinguished from that case by the fact that the prisoners were charged with murder and not manslaughter and that no weapon or object was used in the murder of the deceased. Proceeding on the guidelines set by the Manu Kovi’s case (supra), this means that the sentence falls between 8 and 12 years imprisonment.

45. Bearing in mind the above sentencing range, I return to Mr. Kumo’s submission that whatever sentence, I am to impose on the prisoners, the sentence for Tupis Tom should be lesser than that of Nathan Bobi, I have these to say; the degree of culpability in the criminal case is the same even though the degree of participation in the commission of the offence may vary between or amongst the perpetrators. A classic illustration of an example of common criminal culpability is in arm robbery cases involving more than one accused. Thus, whilst it is true that it was Nathan Bobi who struck the deceased and that was the fatal blow that caused the deceased to suffer respiratory failure and broken rib, Tupis Tom cannot benefit from that, because he was an integral part of the attack on the deceased. Each of them participated in the attack on the deceased although there was no pre planning.

46. If Tupis Tom was to receive a same sentence like Nathan Bobi, could he feel aggrieved? Would there be a denial of justice which leaves him suffering from a real sense of grievance? For reasons stated, there can be no real sense of grievance. If individuals run with a pack, then they must be prepared to share the responsibilities that arise from the collective acts of their co-accused. This is the approach that was adopted by the Supreme Court in Gimble -v- The State [1988-89] PNGLR 271:

"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 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 full part the crime could not be perpetrated".

47. However, in my view, there are exceptions to this general rule. One such exception is the tender age of the co prisoner. Say for example, if one of the prisoners’ age is 26 whilst the co prisoner is aged 15, then the sentence may be different so that it is reflective of the big age differences of the co prisoner. I did that in The State -v- Yuanis Ipiri (2008) N3512 & The State -v- Juvenile "D" (2008) N3508. In these two cases, the offenders are father and son. The father was aged 41 and the son was aged between 11 and 14. Each pleaded guilty to unlawfully killing their own blood relative when they caught him "red handed" stealing their garden food from their garden. They badly assaulted him and chopped him with a bush knife. He died as a result of loss of blood. The father was sentenced to 10 years imprisonment and the son, whom I considered a juvenile given his age, to 8 years imprisonment but I suspended part of his sentence and placed him on strict conditions upon his release from prison.

48. In this case, I note that Tupis Tom is 20 years old whilst Nathan Bobi is 26 years old. There is an age difference of 6 years but to my mind, although they are between 20 and 26 years, they are not juveniles, especially Tupis Tom so that I can consider a lesser sentence for him. For these reasons, I reject Mr. Kumo’s submission that Tupis Tom be given a lesser sentence.

49. In all the circumstances of the case, I consider that a sentence of 12 years imprisonment in hard labour is called for in the interest of assuring the community that the Courts will protect the community against such violent behaviour. It will also serve as a warning to the public and any would be offenders that the Courts have and are increasing the sentences for such crimes so that people will perhaps think twice before committing these kinds of crimes.

ORDERS

In the end, it is the judgment of the Court that the two prisoners are sentenced as follows:

1. Prisoner Tupis Tom to 12 years less 1 year and 6 months for time spent waiting for Court, thereby to serve 10 years and 6 months in hard labour; and

2. Prisoner Nathan Bobi to 12 years less 1 year and 6 months for time spent waiting for Court, thereby to serve 10 years and 6 months in hard labour.

Both are to serve their sentences at Buihebi Corrective Institute. A warrant of commitment for their detention in those terms will be issued shortly.

_____________________________________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the two Prisoners