State v Hurotove [2017] PGNC 114; N6754 (5 June 2017)

N6754

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1386 of 2014
CR 131 OF 2016

BETWEEN:
THE STATE

AND:
MICHAEL HUROTOVE & KIKIRO HUROTOVE

Waigani: Salika, DCJ
2016: 11, 12, 18, 21 October
2017: 13 April; 01, 30 May; 5 June

CRIMINAL LAW – Practice and Procedure – Murder Sentence – conviction following trial – deterrent and punitive sentence imposed.

Cases cited:

Manu Kovi v The State (2005) SC 789
Thress Kumbamong v The State (2008) SC1017
State v John Wanimba, Paul Gabi and Blasius Bana (2005) N2863
The State v Laura (No. 2) [1988-89] PNGLR 98
Lawrence Simbe v The State [1994] PNGLR 38
The State v Steven Hino (2002) N2218
The State v Kore Ase (2001) N2220
The State v Nickson Sambura and Trophimus Sambura (2002) N2219
The State v Kepa Wanega, unreported National Court Judgment in CR242 of 2001 and dated 9^th April, 2003,
Pauline Painuk v The State (SCRA 54 of 2000)
Max Java v The State (2002) SC701,
Mary Bomai Michael vs The State (2004) SC737,

Counsel

Mr L Toke, for the State
Mr F Kirriwom, for the prisoners

05^th June, 2017

SENTENCE

1. SALIKA DCJ: Michael Hurotove and Kikiro Hurotove are biological brothers. They were acquitted on a charge of wilful murder but convicted on a charge of murder pursuant to s.300 of the Criminal Code Act.
   

Issue

2. The issue for the court to determine is the appropriate sentence to impose on each of them.
   

Background Facts

3. Sindy Wano was married to Akus Hurotove. Tony Barry was having an adulterous affair with her. Akus had confronted Tony about this earlier but Tony Barry assaulted him with a bush knife wounding him and Akus was hospitalised. Akus Hurotove was the brother of Michael and Kikiro Hurotove. The matter of Tony Barry and Sindy Wano was then reported to the Village Court for mediation and the village court on a number of occasions deliberated on the matter but Tony Barry and Sindy Wano took no backward step to stop what they were doing.
   
4. The Village Court decided to have another mediation in relation to the matter on 5 January 2014 at the back of the Boroko Police Station.
   
5. On 5 January 2014 the Hurotove brothers Michael and Kikiro and Akus with all their relatives arrived at the back of the Boroko Police Station for the mediation at about 9.00 am. They waited there for Tony Barry, Sindy Wano and Tony Barry’s relatives to turn up but Tony Barry and Sindy Wano never turned up. This angered the Hurotoves and their group.
   
6. It was suggested that they were at East Boroko Shopping Area and so the Hurotoves proceeded to East Boroko Shopping Area after midday but Tony and Sindy and their relatives were not there. The Hurotove’s waited there for a while for them to arrive but Tony Barry and his relatives did not turn up.
   
7. Michael Hurotove had hired a Simbu man’s tipper truck to transport his relatives to the mediation area at Boroko Police Station and then to East Boroko Shopping area. The Hurotoves and their relatives got into the tipper truck and drove to Vadavada settlement where Tony Barry lived. Upon arrival there they were told that Tony Barry was not there. The Hurotoves drove back to East Boroko Shopping Area. Upon arrival back at the Shopping Centre they saw Tony Barry and Sindy Wano outside one of the shops. They got out from the tipper truck and headed for Tony Barry and ganged upon him. Tony was stabbed a few times on his body and he died there from loss of blood.
   
8. Michael Hurotove said he did not take part in the killing as he was at the village court area some 30 to 40 metres away from where the killing took place. I did not believe Michael Hurotove’s story that he did not take part in the killing. He was the leader of the Hurotove group. He did not stop his group from what they did. He did not stop his brother Akus Hurotove from attacking Tony Barry. Michael Hurotove and his group had returned from Vadavada and on their return saw Tony Barry at the shopping centre. How is it that Michael Hurotove was standing at the village court area very quickly when his own people, Akus and others rushed at Tony Barry.
   
9. Michael Hurotove was convicted on his own admission in the record of interview that he was involved in the killing of Tony Barry.
   
10. In his pre sentence report Michael Hurotove said he was there as a peace mediator and not involved in the killing. With respect the evidence from him is that he hired a Simbu man’s tipper truck and collected all his relatives in that tipper truck to go to the venue of the mediation. He was not there as a mediator, rather he was there as an elder brother of Akus Hurotove to settle the dispute of Tony Barry living an adulterous life with his brother’s wife Sindy Wano.
    
11. Michael Hurotove could not be a mediator in his brother’s complaint against Tony Barry. There were other mediators who were there to mediate on the matter. Michael Hurotove with respect was there to talk on behalf of the Hurotove family and not as a mediator.
    
12. Kikiro Hurotove continues to deny he was present. He raised a defense of alibi but his counsel never ran his trial on the defence of alibi. In any case Michael Hurotove in his evidence said Kikiro Hurotove was present at the scene of the killing.
    

Personal Particulars

Michael Hurotove

13. Age – 46 years

Village

- Ifiufa – Goroka, Eastern Highlands Province, but now living at 9 Mile settlement.
- Marital Status – Married with 3 wives and 6 children.

Parents

- Mother passed away in 2016 but father is alive and living in the village at Ifiufa.

Education

– Educated to Grade Ten level at Asaroka Lutheran High School from 1986 – 1989.
– Did Certificate in Business Studies at the PNG Institute of Public Administration.

Work History

- from 1991 – 1993 he worked as a consignment officer with Talair.
- In 1994 he joined Air Niugini as a Consignment Officer but left employment in 1995 to work with the National Botanical Gardens up to his arrest.

Health

- Suffers from chest pain, hearing problems, lower back pains, and is a diabetic but has never been on medication.

Community Involvement

- Peace Mediator

Kikiro Hurotove

Age – 49 years

Village:

- Ifiufa – Goroka, Eastern Highlands Province, but now living at Tete Settlement at Gerehu.

Marital Status

- Married with 2 children, 12 and 14 years old. Wife passed away in 2014.

Parents

- Mother passed away but their father is alive living in the village.

Education

- Was educated to Grade 3 level but left school.

Work History

- Was a cleaner with Telikom PNG for 3 years.

Family:

- He is the eldest of the Hurotove family. Two of his younger brothers have passed on while he and Michael are now in prison.

Health

- The prisoner has hearing problems and a heart problem and is now on medication.

Aggravating factors

Michael Hurotove and Kikiro Hurotove

14. There was use of dangerous weapons in the form of a knife or knives. Tony Barry was stabbed multiple times showing a strong desire to do grievous bodily harm. This was a group attack on a single person. Offence was committed in a Village Court or Peace Mediation setting.
    

The Law

15. Section 300(1) of the Criminal Code provides the maximum penalty for murder which is life imprisonment, subject to s.19 of the Criminal Code. Moreover, the Supreme Court in Goli Golu v The State (1979) PNGLR 653 said:

“It is a general principle of sentencing that the maximum penalty should be reserved for the most serious instance of an offence, the worst possible case normally encountered in practice. This is an application of an even more basic principle, that there must be proportions between offence and sentence.”

16. With respect I accept this principle to be the applicable law in our jurisdiction. The National Courts and the Supreme Courts have been applying this law for a long time and I plan on applying it in this case.
    

Case Precedents

17. The National Court also relies on case precedents for guidance to ensure consistency in sentencing. The case precedents are either from the National Court or Supreme Court. In this case both counsel have usefully referred me to the Supreme Court decision of Manu Kovi v The State (2005) SC789. The Supreme Court in that case set a guide on sentencing in homicide cases. It set out the different categories of homicide sentences for wilful murder, murder and manslaughter. In relation to murder sentences the court suggested the following tariffs.
    

No	Description	Details	Tariff
1	Plea – Ordinary cases – mitigating factors with no aggravating factors	No weapons used – little or no pre-planning – minimum force used – absence of strong intent tp do GBH.	12 – 15 years
2	Trial or plea – Miigating factors with aggravating factors	No strong intent to do GBH – 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 GBH – dangerous or offensive weapons used – e.g gun or 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 offence.	Pre-meditated attack – brutal killing in cold blood – killing of innocent armless person – killing in the course of committing another serious offence – complete disregard for human life.	Life Imprisonment

18. In Thress Kumbamong v The State (2008) SC1017, another Supreme Court held the view that the trial judge should not feel compelled or bound by the sentencing tariffs suggested in the Manu Kovi case but that a judge should be free to exercise the wide discretion vested upon him or her, taking into account all the relevant peculiar facts and circumstances in each given case. While I was part of the decision in the Kumbamong case, I acknowledge that the suggested Manu Kovi tariffs are a useful guide and they should remain a guide only.
    
19. The National Court in the State v John Wanimba, Paul Gabi and Blasius Bana (2005) N2863 per Jalina, J’s eloquently said:-
    

Sentences for murder have increased over the years from 8 or so years suggested in The State vs Laura (No. 2) [1988-89] PNGLR 98. For instance, in Lawrence Simbe vs The State [1994] PNGLR 38 a sentence of 14 years was imposed on the prisoner who killed the deceased by cutting open the (deceased’s) rib-cage after he caught the deceased trying to entice his wife to have sexual relation with her. In The State vs Steven Hino, an unreported National Court Judgment, N2218 and dated 18^th April, 2002, a sentence of 15 years was imposed on the prisoner who killed the deceased by stabbing him in the chest area with a grass knife.

In The State vs Kore Ase, an unreported National Court Judgment, N2220 dated 22^nd June, 2001, the prisoner was sentenced to 15 years imprisonment for killing the deceased upon hearing news of the deceased killing his first cousin and he hunting the deceased down and inflicting severe injuries on the deceased’s body some of which parts were completely severed. In The State vs Nickson Sambura and Trophimus Sambura, an unreported National Court Judgment, N2219 dated 18^th April, 2002, two brothers were sentenced to 18 and 20 years respectively for shooting an old man with a gun in an ambush which was in retaliation for the death of their father from sorcery allegedly performed by the deceased.

In The State vs Kepa Wanega, unreported National Court Judgment in CR242 of 2001 and dated 9^th April, 2003, the prisoner was sentenced to 20 years imprisonment for the murder of the deceased by cutting him on the head with an axe during an argument over a piece of land, the ownership of which was disputed between them. That sentence I believe has been confirmed by the Supreme Court last year in Mt Hagen . There have also been a number of high sentences for murder which the Supreme Court has upheld. For instance in Pauline Painuk vs The State (SCRA 54 of 2000) un-numbered judgment dated 2001, an 18 year sentence on the female appellant who murdered a young school girl by stabbing her twice following an argument was upheld by the Supreme Court on appeal. In dismissing the appellant’s appeal and confirming the 18 year sentence, the Supreme Court said that the sentence “was well within the range if not somewhat lenient.”

In Max Java vs The State SC701, unreported judgment dated 20^th December, 2002, the Supreme Court confirmed a sentence of 20 years which was imposed by the trial judge after a plea of guilty to murder. In dismissing the appeal the Supreme Court said at the bottom of page 3 to top of page 4 of its judgment that “having regard to the prevalence of violent offences in the community, we cannot conclude that the sentence is manifestly excessive.”

Recently in Mary Bomai Michael vs The State (2004) SC737, unreported judgment dated 1^st April, 2004, the Supreme Court in dismissing an appeal against a sentence of 12 years for murder by stabbing her husband with a knife, severely criticized the Public Prosecutor for failing to file an appeal against such a sentence which appeared to be too lenient for such a serious crime.

Apart from the case of Mary Bomai Michael (supra) which was after conviction following a trial, the other murder sentences were imposed following a guilty plea by the offender. It follows therefore that a sentence for murder on conviction following a trial would warrant a higher sentence. In other words, sentences for murder after conviction following a trial can quite justifiably attract a sentence in excess of 20 years and where circumstances warrant it, even a life sentence would be in order.

20. With respect I cannot agree more with his honour Jalina, J’s observations and comments he aptly made in relation to each of the cases cited and endorse them in relation to sentencing the prisoners in this case.
    
21. The killing in this case happened in a village court mediation setting. Village court officials were in place there to mediate the matter. The deceased had been summoned to appear at the mediation. The complainant Akus Hurotove and his people including these two prisoners were there to have the complaints mediated. As events turned out, Tony Barry never got the chance to be heard at the mediation. The prisoners and their people, that is relatives, cut short the mediation by taking the law into their own hands and administered their own kind of justice. Too many of these types of killing are happening as a result of fights or feuds over matters which could be mediated or resolved in a proper peaceful and lawful way. Village Courts are recognised as lawful entities to resolve small village type disputes. Communities must make good use of such lawful institutions to resolve small disputes applying customary laws.
    

Sentence

22. The killing in this matter was serious. It took place in a peace mediation arrangements in the precincts of the city and in a shopping and market area in full view of members of the public in broad daylight. Weapons such as knives were used to stab the deceased. Taking away a human life is a serious thing. That is why Parliament saw fit to fix the maximum penalty at life imprisonment. With respect I agree with the State’s submission that the sanctity and value of human life is far more precious than gold and silver, a wife or husband, a pig or land and that no amount of compensation and remorse will restore life once lost.
    
23. The killing of Tony Barry was a barbaric, gruesome and horrendous crime. The prisoners with all their relatives had a strong intention to cause grievous bodily harm. They inflicted multiple stab wounds on Tony Barry and one of the wounds penetrated the lungs and the heart. They had no respect for the law and the Village Court peace mediators, the shoppers and the general public at large.
    
24. The court has a duty to impose a sentence that are not only punitive on the prisoners but must have a deterrent effect on not only the offenders but other likeminded Papua New Guineans who plan on taking the law into their own hands. I do not say this lightly because in this country there are so many wanton killings as if life is some form of a commodity or a replaceable item that can be borrowed or bought from a hardware shop in town. Moreover killings in this country are becoming more daring, without fear and with no respect for the sanctity of life. Spending a lot of time in prison is not an inhibiting factor, it seems. Being separated from family and loved ones is not an inhibiting factor. The mere fact of taking a human life is not an inhibiting factor. Even the imposition of a death penalty for wilful murder seems not to be inhibiting factor. Our people need to be educated to a level that will instill some moral values in people’s lives. Living in a city with church influences has not helped to curtail these wantok killings.
    
25. Considering all the circumstances of the case, the aggravating and the mitigating factors, the K10,000 and a pig compensation paid to the deceased relatives, I am of the opinion that the prisoners must be punished for the crime they committed. I consider this case to fall into the category of the Manu Kovi guide.
    
26. The prisoners have asked for mercy of the courts saying they have families to take care of if imprisoned. It is too little too late to even talk of ones own family when they took the law into their own hands to end the life of another man. What about Tony Barry’s family, they have lost a father and a husband forever. I have read the character references which have been written in favour of the prisoners but those references appear to overlook the very serious crime they have committed. In effect the references appear to condone the gruesome and horrendous killing that they took part in.
    
27. In the end result I sentence Michael Hurotove to 22 years imprisonment and Kikiro Hurotove to 22 years imprisonment, considering each of their existing medical conditions, I order that they serve imprisonment terms in light labour. They have been in custody for the following period:
    
    • ➢ Michael Hurotove has been in custody since May 2014. He has been in custody for 3 years. The 3 years is taken away.
    • ➢ Kikiro Hurotove has been in custody since 5 November 2015. He has been in custody for 1 year 6 months and so the 1 year 6 months is taken off from the 22 years.
    • ➢ The time in custody awaiting trial is taken off. The balance to serve are:-
      
      • Michael Hurotove – 19 years imprisonment in light labour.
      • Kikiro Hurotove – 20 years 6 months to serve in light imprisonment.
        

________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoners