State v Woibun [2012] PGNC 198; N4631 (23 March 2012)

N4631

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO.188 of 2012

BETWEEN:

THE STATE

AND:

MARCUS WOIBUN
Offender

Vanimo: David, J
2012: 21 & 23 March

CRIMINAL LAW – sentence - guilty plea – murder – deceased aged about 50 years – offender aged about 60 years - murder weapon, a Winchester type SPA Mossberg pump action shotgun capable of discharging 5 rounds at a time – deceased shot at close range from the back on her left buttock – injuries extended to the abdomen region including the uterus – death within a few hours - death resulted from gunshot wound – prisoner a well educated retrenched public servant and medical doctor with a distinguished career – claim of existing health conditions rejected without a medical report verifying – offender attempted to burn down the deceased's house with container of petrol - old age special mitigating factor – prisoner's house burnt down by deceased's relatives - a sentence of 25 years imprisonment imposed – no pre-sentence report to consider question of suspension – ss. 300 (1)(a) and 19 Criminal Code.

Counsel:
Ms. Mary-Anne Zurenuoc, for the State
Mr. George Korei, for the offender

SENTENCE

23 March, 2012

1. DAVID, J: On 21 March 2012, the State presented an indictment charging the offender that he on 1 December 2011 at Vanimo in Papua New Guinea murdered one, Mary Rotsamana contrary to section 300 (1)(a) of the Criminal Code. Upon arraignment, the offender entered a guilty plea which the Court accepted and therefore convicted him of the charge.
   

2. The short facts put to the offender for purposes of arraignment are these. On 1 December 2011 between 03:00 pm and 04:00 pm, the offender was asleep at his house at Makepa residential area, Vanimo. He was disturbed by some youths who were throwing stones at his house. He got up, armed himself with a firearm, a Mossberg pump action gun and went out of his house. He walked from his house to the deceased, Mary Rotsaman's house which was about 100 metres away from his house as he suspected that her son had been the one throwing stones. He did not see the young boy so he approached his mother, the deceased and enquired about her son. The deceased at the time was standing near her ground oven baking. She responded saying that her son was asleep and she did not know that her son had thrown stones at his house. The offender raised the firearm and shot at the deceased from a distance of about 5 to 7 metres. The deceased suffered injuries along the abdomen through her back. She fell down bleeding heavily. The deceased died as a result of her injuries. The offender then got a container of petrol, went up the stairs of the house and through the corridor and set the house alight. Neighbours put the fire out. The offender intended to do grievous bodily harm to the deceased.

3. The offender originates from Wautogik village, Wewak in the East Sepik Province. According to the Antecedent Report, he was born on 10 July 1952 at his village and is therefore aged about 60 years. He was previously married and has 2 children from the marriage, one aged about 20 years and the other about 14 years respectively. The marriage did not last. He was living as a bachelor until the offence. He is a baptized member of the Roman Catholic Church.

4. He is a well educated person. He attended the Banag Primary School where he did standards 1 and 2. He then attended the Hawain Primary School where he did standards 3 and 4. Thereafter, he attended the Kaindi Primary School and did standards 5 and 6. Between 1968 and 1971, he attended the Brandi High School where he completed his high school education. From 1972 to 1977, he attended the University of Papua New Guinea and graduated with degrees in Medicine and Science or MBBS. Between 1984 and 1985, he successfully completed a post-graduate course in Public Health at the University of Malaysia and was awarded a Masters degree in Public Health. In 1995, he undertook a management course in health at the University of Emery in Atlanta, United States of America.

5. From 1978 up to his retrenchment in 2005, he was employed by the Department of Health. He was appointed as the Assistant Secretary for Health in the Department of Sandaun Province in 1982 and moved to Vanimo as a result. He has been a permanent resident of Vanimo at the Makepa residential area since that time.

6. The depositions show that the offender is the registered owner of the firearm used in the offence namely, a Winchester type SPA, Serial Number L2277652, long barrel and brown coloured Mossberg pump action with a capacity to fire five rounds at a time. The offender is the holder of Firearms Licence No.230068 issued on 31 August 2011 and is due to expire on 26 August 2012. It is a condition of the licence that it is to be used for hunting purposes only. The firearm, a 5 litre container containing petrol and 5 shotgun cartridges namely, 4 Bushman brand Super Field 36G cases coloured in red and 1 Corona brand manufactured by Sellier & Belloy the case coloured in green (the cartridges) formed part of the physical exhibits.

7. The offender was arrested on 1 December 2011 and has been in custody since that time: a period of 3 months and 3 weeks.

8. The offender has no prior convictions.

9. The offender apologized to the family of the deceased, the late Mary Rotsamana. He admitted committing the offence. He said it was not a spur of the moment incident, but a reaction building up since 2009 aggravated by harassment aimed at him by the deceased's children day and night. He went down to the deceased's house not with an intention to kill anyone as he is a medical doctor not trained to kill. He aimed at the deceased's knee, but somehow the barrel popped up and the deceased was shot at another part of her body. Until the offence, he has been a law abiding citizen. His loyal service to the people of Papua New Guinea as a Public Servant was recognized when he was given a special award. He is a community leader.

10. In considering an appropriate sentence for him, he asked the Court to take into account in his favour several factors. First, he is a sick man. He has a heart ailment and currently is on treatment. He has experienced a heart failure before. Doctor Amana is his doctor and he can vouch to that. Second, his house was burnt down by relatives of the deceased who were enraged by the shooting of the deceased. He is now homeless. Third, he has suffered public ridicule. Fourth, he is HIV positive.

11. In mitigation, Mr. Korei of counsel for the offender submitted that the following factors should be applied in favour of the offender. First, he has pleaded guilty. Second, he expressed genuine remorse. He was apologetic to the deceased's family and shed tears openly in Court. Third, he was a first offender. Fourth, he served the people of Papua New Guineas as a Public Servant with distinction and 23 years of his service was spent in Sandaun Province, the least developed province in the country. Fifth, he lost his house through the unlawful conduct of the relatives of the deceased and has rendered him homeless now. He lost everything in the house including certificates of his educational achievements. Sixth, he was an outstanding community leader and he interacted well with the local community. Seventh, he was constantly harassed by the children of the deceased for about 4 years since 2009 therefore his conduct had an element of de-facto provocation. Eight, he was not guilty of pre-planning.

12. Mr. Korei suggested that special aggravating factors in the present case are these. First, the offender used a firearm. Second, a life was lost. Third, the offender attempted to burn down the deceased's house. Usual aggravating factors apply as well counsel said.

13. Mr. Korei submitted that the circumstances of this case brought it within category 2 of the Supreme Court murder sentencing guidelines recommended in Manu Kovi v The State (2005) SC789. He stated that although a firearm was employed in the killing, the sentence should not exceed 20 years imprisonment.

14. Ms. Zurenuoc submitted that this was a very serious case demonstrated by the following aggravating factors. First, the offender used a firearm. The medical report vouches for the nature and extent of injuries that the deceased suffered and there was no chance of survival. Second, the deceased had no part in the incident involving his son and the offender. The offender was agitated by the deceased's son and was therefore looking for him when he came across the deceased. The deceased was an innocent person. Third, the deceased was unarmed and her back towards the offender when she was shot. There was complete disregard for human life. Fourth, the offender is a well educated man and should have conducted himself better than what he did if he had any animosity with the deceased or her son. He should have taken his grievances, if any, to appropriate authorities.

15. Ms. Zurenuoc further submitted that the Court should reject the submissions by the defence on the questions of de-facto provocation and the burning down of the offender's house being considered as mitigating factors for the following reasons. First, the fact that the offender left his house armed with a firearm should defeat the claim of de-facto provocation. The claim might have merit if the offender found the firearm lying around somewhere, picked it up and used it to shoot the deceased. Second, the burning down of the offender's house was a direct consequence of the offence, retaliatory in nature.

16. As to penalty, Ms. Zurenuoc submitted that a sentence of 20 years to life imprisonment would be appropriate.

17. Section 300 of the 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 Code.

18. I will apply the sentencing guidelines for murder recommended in the decision of the Supreme Court in the case of Manu Kovi. This was a vicious attack with a very dangerous weapon.

19. The medical report issued by the Vanimo General Hospital, Directorate of Medical Services dated 2 December 2011 shows that the deceased was brought to the Vanimo General Hospital after 01:30 pm on 1 December 2011 with a gunshot wound. There was bleeding from the deep wound measuring 3 cm x 3 cm. Injuries included macerated gluteal muscles, bleeding from gluteal vessels and fractured inferior ramus of the left ischium, severed internal iliac artery on the left, pellet wounds to the uterus, perforated small intestine and pelvic and large intestine haemotoma. Numerous pellets were lodged inside the buttock. The deceased lost 3000 mls of blood. The deceased died at 05:20 pm that afternoon. The cause of death was acute renal failure and hypovaelimic shock as a direct result of severed internal iliac artery on the left and the gluteal vessels from the gunshot wounds.

20. The medical report shows that there was a strong desire to do grievous bodily harm. I conclude that this is a case that falls between categories 3 (20 to 30 years) and 4 (life imprisonment) of the Manu Kovi guidelines and it is not a case of the worst type for this offence for the maximum penalty for the offence to be imposed.

21. I accept all the mitigating factors proposed by the defence except the expression of remorse. I will also treat the offender's old age as a special mitigating factor. I will reject the claim by the offender that he has health conditions namely a heart ailment and that he is HIV positive simply because there is no medical report before me to verify the claim. Eight factors apply in favour of the offender.

22. I will treat the offender's expression of remorse as a neutral factor.

23. I will treat the following to be aggravating factors. First, the offender used a very dangerous weapon. Second, a life of a woman aged about 50 years was lost. Third, the offender attempted to burn down the deceased's house. Fourth, the offence is prevalent. Fifth, the deceased was unarmed and her back towards the offender when she was shot. There was complete disregard for human life. Sixth, the offender is a well educated man and should have conducted himself better than what he did if he had any animosity with the deceased or her son. He should have taken his grievances, if any, to appropriate authorities.

24. As can be seen above, the factors in mitigation slightly outweigh those in aggravation.

25. I compare this case with The State v Kabua Kove (2010) N4063. In that case, the offender, a man from Rigo District in the Central Province went to his garden with his mother and daughter. Whilst in the garden, the deceased was seen hiding in the bushes staring at his mother and daughter. The offender took his gun, aimed at the deceased and fired a shot at him. He shot the deceased on the chest. The deceased died later as a result of the gunshot wound he sustained. In his allocutus, the offender there said his mother had been involved in an extra marital affair for 25 years with the deceased beginning from the time of his childhood and when his father became aware of the relationship, he laid a complaint in the District Court, but that action did not deter the deceased. He personally took up the matter with the village court as well, but nothing was achieved there as well. Therefore, when he saw the deceased at the garden stalking his mother to do "something bad", he was angry and shot him. I imposed a sentence of 24 years imprisonment in hard labour. I think this case is a little bit serious than Kabua Kove.
26. The offender has not adduced any evidence of harassment he was subjected to from the deceased's son or children or even the deceased herself since 2009, but I have given him the benefit of the doubt since it was raised in his allocutus and the allegation that the deceased's son might have been amongst youths stoning the accused's house has been pleaded in the brief facts.

27. After weighing all the mitigating and aggravating factors present in this case, I think the appropriate sentence is 25 years imprisonment.

28. From the head sentence of 25 years, I have decided to deduct 3 months and 3 weeks for pre-sentence period he has spent in custody under section 3 (2) of the Criminal Justice (Sentences) Act 1986 leaving 24 years 8 months and 1 week to serve. Incarceration shall be at the Vanimo Correctional Institution.

29. There is no pre-sentence report to warrant suspension of any part of the sentence although I have considered doing that due to the age of the offender.

30. A warrant of commitment shall be issued forthwith to execute the sentence.

31. I will order the immediate destruction of the firearm and cartridges.

Sentenced accordingly.

__________________________________________________
Public Prosecutor: Lawyer for the State
Michael Wagambie Lawyers: Lawyer for the Offender