State v Tounginia [2015] PGNC 203; N6104 (16 October 2015)

N6104

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 261 OF 2011

BETWEEN:

THE STATE

AND:

RAYMOND LUI ToUNGINIA
Prisoner

Kokopo: Higgins, J.
2015: 19th August,
5th, 9th & 16th October

SENTENCE – drunken rampage in revenge attack – charges of murder, attempted murder, assault, arson & property damage – innocent victims – death of 2 year old girl – parity in sentencing – effect of delay in bringing prosecution – no fault of offender – mitigating factors

Cases Cited:
Papua New Guinea Cases

Goya v State [1987] PNGLR 51
R v Tovarula [1973] PNGLR 140
State v Nataemo Wanu [1977] PNGLR 152
Manu Kovi v The State [2005] PGSC 34; SC 789
State v Balu & 2 Ors [2011] PGNC 90; N4350
State v Balu [2011] PGNC 97; N4372
Public Prosecutor v Sydney Kerua & ors [1985] PNGLR 85, 90
Apo v State [1988] PNGLR 182

Overseas Cases

R v Todd [1982] 2 NSWLR 517
R v Miceli [1998] 4VR 588
R v Idolo [1997] VSC 22; [1998] 4 VR 588

Counsel:
Mr. L. Rangan, for the State
Mr. J. Gesling, for the Prisoner

SENTENCING REMARKS

16th October, 2015

1. HIGGINS, J: Raymond Liu To Unginia, (the offender) has pleaded guilty to 7 counts on two indictments presented by the State.
   

2. Those counts are:

INDICTMENT 1. On the 24th day of February 2007 (That he) ... 'at Palnakaur Village Kokopo District in Papua New Guinea, murdered Betina Balbal Hubertin.

(s.300 Criminal Code Act 1974 (the Code).

Penalty: imprisonment for life)

INDICTMENT 2.

1st Count

(That he ... at the same time and place) ... wilfully and unlawfully set fire to a dwelling house belong (sic ... "belonging") to PETER TANEL.

(s.436 Criminal Code

Penalty: Imprisonment for life)

2nd Count

(That he ... at the same time and place) ... wilfully and unlawfully damaged water–drums, cups, pots, fruit plants, betelnut plants, cocoa (sic) plants (,) a dwelling house, the property of Julius Anton, Thomas Tue and others.

(s.444(1) Criminal Code

Penalty: Imprisonment not exceeding two years)

3rd Count (withdrawn and dismissed at request of prosecutor)

4th Count

(That he, at the same time and place) ... unlawfully assaulted MARTIN TINIU.

(s.335 Criminal Code

Penalty: Imprisonment not exceeding one year)

5th Count

(That he, at the same time and place)

... attempted unlawfully to kill COLLIN ILDE JERRY.

(s.404 Criminal Code

Penalty: Imprisonment for life)

6th Count

(That he, at the same time and place)

... attempted unlawfully to kill ROSE ALIR.

(s.404 Criminal Code

Penalty: Imprisonment for life)

7th Count

(That he, at the same time and place)

... attempted unlawfully to kill THELMA ANSILA BULARAM.

(s.404 Criminal Code

Penalty: Imprisonment for life)

3. It is noted that s.19 of the Code permits a fixed term instead of imprisonment for life ie "any shorter term".

4. The brief facts of this case, accepted by the offender, are that on 23 February 2007, between 1-4pm, a bride price ceremony was held at Palnakaur Village. The offender and relatives of his attended.

5. Most of the relatives left at 5pm but the offender and some others remained to further celebrate the event.

6. This they did consuming home brew and beer until the early hours of 24 February 2007.

7. Unsurprisingly, given the level of drunkenness, a fist fight occurred between Albert Girar (one of the party with the offender) and Peter Tanel a resident of Palnakaur Village. The latter was knocked unconscious. Some hours later, he gained consciousness and sought to retaliate against Albert Girar, the offender and the others with them. He attacked and wounded the offender and his brother Martin To Unginia with a bush knife.

8. Some hours later, between 6am and 7am the offender, his brother Martin, Albert Girar and others banded together to retaliate against Peter Tanel. They armed themselves with various weapons including bush knives and pieces of timber. They threatened and attacked Peter Tanel as well as other victims who were relatives of his. They struck and chopped several persons. They set fire to a house and damaged crops and property as particularized in the charges.

9. Most tragically and reprehensibly, a young child, Betina Hubertin, was fatally struck on the head with a bush knife whilst in her mother's arms. The other victims were cut with bush knives or bashed with timber, including the three women referred to in the attempted murder charges.

10. The offender was armed with a piece of timber. The prosecution concedes that he did not kill the child or wound any of those who suffered slashing injury but he was part of the rampaging group and shared their common purpose of seeking revenge for the earlier attack by Peter Tanel. He struck some persons with the length of timber he was holding.

11. Whether or not the offender harboured an actual intention to inflict harm on Betina Hubertin or others, he is criminally responsible for those acts as if he was the actual perpetrator by virtue of s.8 of the Code.

12. That being said, his personal responsibility is secondary to the actual perpetrator. Nevertheless, some such result was probable as a result of his encouragement to violence and his personal violence against some of the victims.

13. It is plain that a conviction for murder against this offender is well warranted (see Goya v. State [1987] PNGLR 51).

14. It remains to consider the appropriate sentence.

15. The appropriate sentence is to be determined having regard to the overall damage and injury caused by the group of which this offender was part. His personal contribution to the mayhem and, of course, his personal circumstances, must also be considered. In this case, it is also important to ensure parity with sentences imposed on other members of the group.

16. In this matter, I have been referred by Mr. Rangan, for the State, to decisions on sentence in respect of 2 other offenders involved in the same rampage in a similar way, Matthew Balu and Bernard Kavanamur Balu.

17. The first of those decisions relates to their sentencing after a contested trial in which they were found guilty by Lenalia J. of the murder of Betina Hubertin (CR No. 661 of 2008 and CR No. 300 of 2010). As is the case with this offender, neither was the person responsible for the blow which killed young Betina. As with this offender, neither had any prior criminal history. However, their participation in the group, encouraging violence, made them, as it does this offender, responsible for the terrible consequences that followed.

18. His Honour pointed to ss.7 and 8 of the Code and the cases of R v Tovarula [1973] PNGLR 140, State v Nataemo Wanu [1977] PNGLR 152 and Goya v State [1987] PNGLR 51.

19. Effectively, those offenders and this offender are principals in the second degree to the murder of Betina Hubertin. If they harboured no specific intention to kill, murder is the appropriate verdict even if the actual perpetrator had an intention to kill sufficient for wilful murder (see Goya v The State (supra) per Kapi DCJ, Woods & Barrett JJ.

20. The present offender, unlike the two before Lenalia J., did express remorse both in his allocutus and by his plea of guilty.

21. His Honour referred to Manu Kovi v The State [2005] PGSC 34; SC 789, where Injia DCJ (as he then was), Lenalia & Lay JJ expressed the need for consistency in sentencing for murder. Their Honours pointed out that a so-called tariff is but a guide to the proper and just sentence and should not prevent the court from looking at and taking account of all relevant factors. They include, ordinarily, the offender's prior good character (or otherwise), family background, education, religious practice, guilty plea or otherwise, remorse and co-operation with police. Compensation for loss of life is particularly significant in PNG society.

22. Pre-planning is an aggravating factor. It may be mitigated by provocation offered and by drunkenness affecting the judgment of the perpetrators. It is apparent in this case that the only provocation was that offered by Peter Tanel in attacking this offender and his brother. The indiscriminate retaliation was far in excess of the provocation offered.

23. The maximum penalty of life imprisonment is reserved for the worst case. In Kovi v The State (supra), their Honours suggested the following guideline for sentences for murder:

"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 penalty 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 (or) substances; summary execution."

24. One such factor aggravating murder is the case of a revenge attack on unsuspecting victims as was the case here.

25. However, given that the two offenders before him were principals in the second degree, Lenalia J. considered 12 years imprisonment with hard labour to be appropriate in the circumstances of this case.

26. There are no other aggravating factors against this offender compared with those offenders. There are two significant mitigatory factors compared with their cases.

27. The first is that this offender has pleaded guilty and expressed remorse. However, no compensation has been offered or paid, though there was none in their case either.

28. In addition, although some implicated offenders have "gone bush" and not been located, this offender remained at his ordinary residence. Despite no evasive action on his part, he was not arrested and charged till 22 December 2010. There was no explanation for this delay. As a result, the offender was denied credit for about 3 years the other two had spent in custody compared with him, although he was, of course, at liberty.

28A. Delay in bringing an offender to justice where that delay is caused by no fault of the offender, particularly where it is caused by the fault or inefficiency of police and/or prosecutors, is properly to be regarded as mitigatory.

28B. This is particularly so if, during the period of delay the offender has been of good behaviour or, even better, has embraced positive efforts at rehabilitation.

28C. That is well-recognized at common law – See R v Todd [1982] 2 NSWLR 517 and particularly at 519, 520 (per Street CJ) – R v Miceli [1998] 4VR 588; R v Idolo [1997] VSC 22; [1998] 4 VR 588.

29. That delay is a denial of the right of the offender to speedy access to justice (see Article 29 Magna Carta ("...we will not deny or defer to any man either justice or right"). It is also a right enshrined in the Constitution as part of the underlying law. (see eg. s.37 – Protection of the law). The response to such a denial in a case such as the present is to mitigate the punishment.

29A. This offender has no other instances of anti-social behaviour noted against him before or after this drunken rampage. That adds to the case for treating him more leniently than the two others whose case has been referred to. Indeed, the prosecution does not dispute this outcome.

30. The co-offenders, Balu & Kavanamur Balu, were also convicted of arson, attempted murder and wilful damage to property. The assault charges against them were not proved. The State called no evidence of those assaults.

31. However, the collateral offences alleged against those co-offenders were otherwise substantially the same as those to which this offender has pleaded guilty. They had pleaded not guilty but Maliku AJ rejected that plea after a contested trial. (See State v Balu & 2 Ors [2011] PGNC 90; N4350). One of them, Bernard Kavanamur Balu, was found to have actively engaged in the arson. Otherwise they were, as was this offender, present and encouraging offences of the kind that were perpetrated. The sentencing proceedings are recorded in State v Balu [2011] PGNC 97; N4372.

32. As to whether sentences for different offences should be concurrent or cumulative (or partly so), the Supreme Court in Public Prosecutor v Sydney Kerua & Ors [1985] PNGLR 85, 90 held (as Maliku AJ noted in State v Balu (supra)):

"in deciding whether sentences should be made concurrent or cumulative the court should be guided by the following principles:

(i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii) Where the offences are different in character, or in relation to [a] different victim, the sentences should normally be cumulative.

(iii) when the Court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it [is] just and appropriate. If it is not, it must vary one or more sentences to get a just total."

33. On the charges of attempted murder of Collin Ilde Jerry, Rose Alir and Thelma Ansila Buluram, his Honour imposed sentences of 5 years cumulative upon each other. For the arson, a sentence was imposed of 4 years concurrent with those sentences. Whilst there was, as here, no direct evidence of the value of the property damaged, his Honour considered that a sentence of 6 months imprisonment on the charge of wilful damage to property was appropriate concurrent with the preceding sentences.

34. The effect of those sentences was that they were concurrent with the sentences for murder handed down by Lenalia J. Thus, the total sentence for their part in the rampage was 15 years with hard labour less the time elapsed since they were taken into custody.

35. This offender also faces a charge of common assault upon Martin Tiniu. That carries a maximum term of one year imprisonment.

36. Mr. Rangan submitted that the sentences imposed on the offenders, Balu and Kavanamur Balu, were a guide to sentencing this offender. He acknowledged the principle of parity in sentencing. He also acknowledged this offender's plea and expression of remorse entitled to him some credit compared with them. I agree with that submission which is also supported by Mr. Gesling for the offender. To that is added the unexplained delay in arresting and charging this offender.

37. However, Mr. Rangan also submitted, rightly, as Mr. Gesling for the offender acknowledged, that the offender's intoxication, although explaining why a person of otherwise good character and blameless record would do what he did, is not a mitigating factor though it may negate pre-planning. This accords with the view expressed by Kapi DCJ in Apo v. State [1988] PNGLR 182 and I respectfully agree with that. Indeed, many jurisdictions in Australia expressly deny that intoxication is a defence to a charge though it may prevent the formation of a specific intent. (See Criminal Code Act 2002 (ACT) s.31 re self-induced intoxication).

38. I adopt as a starting point the sentences handed down by Lenalia J on Balu and Kavanamur Balu but, having regard to the plea of guilty and remorse, including the delay in bringing a charge for 3 years, I impose a sentence of 9 years imprisonment on this offender for the murder of Betina Hubertin. Had this offender been actually involved in that murder of an innocent child, the sentence would have been very much heavier.

39. In relation to the attempted murders of Ms. Jerry, Ms. Alir and Ms. Bularam, I note this offender was not physically involved in the attacks upon them. He has pleaded guilty and expressed remorse. I note also that those crimes were also alleged and found against Balu and Kavanamur Balu. It would be unfair to sentence this offender to a longer term for the three crimes of attempted murder than the other two charged received. I consider 3 years to be the appropriate sentence for each to be cumulative on each other, a total of 9 years, having regard to the case of State v Kerua & Ors (supra).

40. As to the arson, I consider 3 years to be an appropriate sentence, again taking account of the plea of guilty and the sentence imposed on the two others. It is to be concurrent with the other sentences.

41. The damage to property warrants a sentence of 6 months imprisonment, the assault, 9 months. Those sentences are to be concurrent with each other and the other sentences.

42. The head sentence of 9 years and each of the other sentences will commence on the date this offender was taken into custody, namely, 22 December 2010. The period in custody to be deducted from the total sentence, namely 4 years, 10 months and 8 days.

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