State v Yau [2016] PGNC 72; N6273 (18 February 2016)

N6273

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1203 OF 2009
CR NO.1302 OF 2014
CR NO. 0630 OF 2014

THE STATE

V

EDWIN YAU, HEMMIS YAU & JOB KAMORI

Wewak: Geita J
2015: 3, 9, 11 December
2016: 18 February

CRIMINAL LAW – Sentence after Trial – Wilful Murder – Prisoner led a group of men to a fight resulting in the death of George Wosimbu – The victim hacked to death with a traditional fighting spear ‘limbum’ and hacked to death with a bush-knife as he lay helpless on the ground – Prisoner was the instigator - Section 299 (1) Criminal Code and Section 7 Criminal Code.

CRIMINAL LAW – Sentence - Land dispute related killing- Need for more peaceful ways to resolve land disputes –Need for courts to clamp down hard on land related dispute homicides – Due to serious aggravating circumstances in long term rippling effects –within families affected, the clan/tribe affected and the country as a whole.

CRIMINAL LAW – Sentence – Prisoners limited mitigating factors outweighed by aggravating factors –Sentencing principles of general and specific deterrence, retribution of behaviour considered –Prisoner sentenced to 45 years imprisonment – Prisoner was the enforcer and principal offender - Section 299 (1) Criminal Code.


Cases cited:

Lawrence Simbe v The State [1994] PGSC 18[1994]
Manu Kovi v The State [2005] SC 789
The State v Jack Binde No 2 CR 138/2012, N6146
The State v Koeskapi (2004) N2654
The State v Obert Hulaware No. 2 CR589/2012, N6144
The State v Tonias Kurus CR1245/2013, N5652
The State v Tony Emmanuel and The State v Edward Yau (2013) N5125

Counsel:
Paul Tusais, for the State
Darroll Sakumai, for the Prisoner

JUDGMENT ON SENTENCE

18 February, 2016

1. GEITA J: Hemis Yau was one of three accused found guilty after trial for the murder of George Wosimbu on 11 April 2009 at Kawanumbo village, East Sepik Province pursuant to Section 299 (1) (2) of the Criminal Code, Chapter No. 262. This offence attracts a maximum death sentence; however Section 19 of the Criminal Code gives Courts’ powers to impose a lesser sentence. The provision under Section 7 of the Criminal Code was also invoked in that they actively supported the attack and were not mere spectators. Co accused Edwin Yau and Job Kamori were however acquitted on the same charge. The judgment on sentence is therefore for Hemmis Yau.

2. The brief facts as found during your trial and conviction on 3 December 2015 were that you were the pack leader and instigator of a series of fights at Kumalumbo camp and Kuwanumbo camp in which the victim George Wosimbu was murdered. The deceased was bludgeoned on his neck and head with a traditional fighting club or spear, limbum carried by the prisoner and later cut on his arms and legs multiple times with a bush-knife as he lay helpless on the ground resulting in his slow death. All attempts made by his relatives to assist the deceased were thwarted by the prisoner. The fight resulted from an ongoing land dispute between the prisoner’s family members and the deceased’s family members. Full details contained in judgment on verdict.

3. No prior convictions recorded against him.

4. When asked if you had anything to say on what type of sentence the court might impose upon you said you were sorry for what had happened and you apologised to the families of the deceased. You said this was first time in court and you asked for leniency from the court. You are aged 42 years and married with two children aged between 12 years and 10 years and you are now worried for their education and welfare as you do not think that your family members would take care of them. You asked the court to be lenient on you for the sake of your children so that you could serve only a shorter period of time and come home to take care of them.

5. The only matter in mitigating in my view was your contrition and perhaps your school age children now denied of their education as a result of this crime you have committed. Any other mitigation factors available to you however are grossly outweighed by your aggravating factor.

6. The matters in aggravation include this court finding you guilty of this crime after trial, an innocent person murdered, the killing was uncalled for, and done in cold blood.

Submissions on sentence for Defence

7. Your lawyer made submissions on your behalf and referred this court to your marital history, about your wife and your two children and said at that time you were in custody you have been there for almost two years. . Your lawyer also touched on the type of sentence this court should give you and referred me to the often quoted case of Manu Kovi in which courts are assisted in deciding the type of punishments that should be considered. The case of Lawrence Simbe v The State was referred to me by your Lawyer and basically said the courts should be guided by these cases because the facts in that case are similar to your case in that the killing arose from a land dispute. I was also referred to a related case that was decided by my brother Judge, Judge Kirriwom in which your family members were convicted and sentenced to prison: The State v Tony Emmanuel v Edward Yau. In that case His Honour sentenced both men to 30 years and 40 years respectively. The Judge said at that time that they were sentenced according to their degree of participation. In short your lawyer referred this court to that judgment and said the court should not look any further but be guided by the Tony Emmanuel (supra) case as they are all related and so suggested that a prison term of between 20 to 25 years should be considered in your favour.
8. In support of his arguments a Pre-sentence Report was prepared on your behalf detailing your family background, your marital status, your education, your work history, your financial situation, the community history including your personal background. The Probation Officer noted in her report on your behalf that during your interview with her, you showed no signs of remorse and that you still denied your part in killing the deceased. Under all those circumstances and dangers involved the Probation Officer did not consider that you would be a suitable candidate for probation. She said that the crime was committed under very volatile situation and chances of retaliation still remained high. A Victim Impact Statement was also prepared and presented.

Submissions on sentence for the State
9. Mr. Paul Tusais for the State in his brief oral submissions touched on the Probation Report and invited Court to take note of the concerns expressed by the Probation Officer and her recommendations contained therein. He conceded with your lawyer’s submission that the Court should not look further than the case of Tony Emmanuel (supra) in that the facts and circumstances were similar. Mr Tusais said on deciding what sentence to impose the Court only has to look at the sentence imposed on his two elder brothers. Edward Yau is the accused oldest brother and Tony Emmanuel is the first cousin. He however reiterated that the sentence in this case should not be any lesser than 30 years as the prisoner in this case was not merely a bystander offering moral or verbal support.

10. Your case is unique in a sense that not all cases have the same facts and circumstances and must be treated on its own unique way. Having said that Courts are always best assisted by earlier case precedents in order to maintain relatively and consistency in sentencing prisoners who commit this type of crime. The famous case of Manu Kovi v The State [2005] SC789 has been referred to me by both counsels with their respective recommendations depending on whose side they are representing.

11. In this case there are findings before the court that the prisoner was the main aggressor and enforcer leading up to the murder of the deceased. It follows that he was one of the principal offenders in this murder. He was found guilty and convicted by operation of section 7 of the Criminal Code. That to my mind is a safe starting point in determining what type of penalty he ought to be paired with. All other aggravating factors found including the death of the deceased, the crime being violent and horrendous, the use of offence weapons.

12. I next look at a related case involving both families in which the ringleaders were found guilty and sentenced to 30 years and 40 years respectively. In the case of The State v Tony Emmanuel and The State v Edward Yau (2013) N5125 both prisoners gave orders to their sons to attack the victim who was already helpless from their attacks and continued to cut his limbs crippling him resulting in heavy loss of blood and death. It goes without saying that if there are similarities in names in the related case referred to above, the prisoner in this case would have to be related to Edward Yau.

13. Now assuming that most of the attributes in the sentencing tariffs in category 3 of Manu Kovi are present in this case a sentence of life imprisonment would be considered most appropriate and befitting the crime: In this case there was pre planning, the attack was vicious, weapons used, done in cold blood, victim defenceless and harmless, a strong desire to kill the victim. Having established that benchmark I ask myself what then should the appropriate punishment be in his case?

14. For the moment the death penalty is avoided and only reserved for the most heinous of homicides. I need not look further than to use the earlier related case in which the ringleaders were sentenced to 30 years and 40 years respectively. Besides other considerations in aggravation and mitigation which is outweighed a relatively higher sentence would be in order in my view.

15. The State referred the case of The State v Koeskapi (2004) N2654 to me which bear resemblance to the factors now before me. In that case the prisoner was seen in company of the deceased earlier in the morning to the afternoon where he found his fate at the hands of the prisoner. As they both were alone in a rugby field he was stabbed in his neck with a bayonet killing him instantly. Despite his early guilty plea and favourable mitigating factors the court sent him to life imprisonment. Besides other considerations the sentencing judge described the killing as gruesome, barbaric and carried out with calculated killing.

16. In light of the escalating trend of homicide cases in this province courts have been imposing longer prison terms these last few years however I cannot in all honesty say that this has deterred perpetrators from committing such heinous crimes. This case is no different. In the two most recent cases I deliberated upon during the December court circuit I sentenced the prisoners to between 60 years and 80 years on indictments for wilful murder. In the case of The State v Jack Binde No. 2 CR 138 of (2012) N6146 – 9 December 2015, the prisoner in a triple murder indictment was sentenced to 40 years for each court. He was sentenced to a concurrent of 80 years. In the second case of The State v Obert Hulaware No. 2 CR 589 of 2012 – N6144, 10 December, the prisoner was sentenced to 60 years for stabbing his in-law to death. In another wilful murder case decided my brother Justice Kirriwom in 2014, the prisoner was sentenced to 60 years. (The State v Tonias Kurus CR. 1245 of 2013- N5652.)

17. Understandably all land disputes are very sensitive and Papua New Guineans get very emotional and worked up because our livelihood and existence is sourced from the land we inherited from our forefathers. The people of this province are no different. One thing I am certain off is that we have been pacified by missionaries with the Christian faith and all have some form of education and intellect. My primary findings reveal that all perpetrators in the commission of this crime including the prisoner have some form of education and for some mature adults. I have deliberately ventured into this discussions to show that in this type of disagreements there is always room for our differences to be resolved, whether it be through court mediation, village court mediation our through family/family mediation and with assistance from our church leaders and elders.

18. In this case the deceased after dropping off the damaged sago making utensils returned to his house expecting the prisoners’ family members to come and to have the dispute resolved or discussed as you were all related to each other one way or another and obviously he wasn’t expecting any trouble of such magnitude, resulting in his death. Put differently you and your family members took the law into your own hands and so you all must be punished sternly. Our modern civilized society does not condone an eye for an eye system of justice. Papua New Guinea criminal justice system also does not condone this type of killings which could meaningfully be resolved without unnecessary bloodshed as has happened in this case. It follows in my view that a strong deterrence sentence warranted in your case.

19. In the most recent case I did on a triple wilful murder case this week, the prisoner escape being sentenced to death. One of the reasons I cited was the fact that he was not a principal offender. He was instead sentenced to 40 years for each count. (The State v Jack Binde).

20. In your case the court found you to be a principal offender and so the case of Jack Binde (supra) is distinguished. In the case of Koeskapi (supra) the particular features necessitating a life imprisonment were that, that murder had wider rippling effects in that a clan/tribe was affected as a result: Besides other aggravating factors payback killing came to prominence in my view resulting in the sentence the way it was passed on that prisoner, despite his overwhelming mitigating factors including his guilty plea. Now comparing the unique particular features in Koeskapi case to your case, the repercussions in your case in my considered view are far reaching. Not only is your close knit land owning family affected but your extended families, your clan, tribe and sympathisers, including those future generation not yet born into this world. Everyone living and yet to be born will get to know about a certain land dispute which resulted in the murder of a man which in turn resulted in several men being prosecuted and sentenced to prison, at one time or another: land disputes are here to stay in this province or anywhere in Papua New Guinea and will always inevitably attract disputes and killings if not properly managed by all concerned, the judicial system and courts included. It follows that principal perpetrators and ringleaders in all land dispute related homicides must be dealt with the ultimate punishments available for purposes of retribution and denunciation of behaviour.

21. I have addressed my mind to my discretionary powers of a lesser sentence and other sentencing options available to me under Section 19 of the Criminal Code however to my mind they have all become insignificant in light of what I consider very serious aggravating circumstances in your case. Furthermore any sentence below 25 years as suggested by your Lawyer in my view would be a travesty as the ringleaders in a related case were sent to prison up to 40 years. According to your pre-sentence report you are married with children and managing your family affairs well. It goes without saying that you are a mature adult and capable of discerning what is right and what is wrong. You failed to use your better judgment under the circumstances over a helpless wounded man resulting in his death. I do not think that to have you case treated similarly with a related earlier case would suffice. In other words you should not be accorded the lame excuse of being forced by your parents to commit this crime and get away with a light sentence. To my mind you were the enforcer or a principal offender and carried out the crime mercilessly.

22. Due to the foregoing reasons including the benefit which I have had on the cases presented before me and the helpful submissions from both lawyers for and against I have come to the conclusion that the appropriate sentence founded on the sentencing principles of general and specific deterrence including retribution of behaviour must be imposed upon you. To this end you are sentenced to 45 years with the hope that a strong message will be sent out to all persons not to commit similar crimes.

Sentence
23. I therefore sentence you Hemmis Yau to 45 years imprisonment less pre-trial custody period available to you.

Sentence accordingly,

______________________________________________
Public Prosecutor: Lawyer for the State
M.S Wagambie Lawyers: Lawyer for the Prisoner