State v Umbun [2017] PGNC 329; N7025 (26 June 2017)

N7025

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 663, 664, & 665 OF 2013

THE STATE

V

MAXILLUS UMBUN,
EX-AVIOUR UMBUN

&
MORRIS LAWRENCE

Kimbe: Miviri AJ
2017: 23^rd & 26^th June

CRIMINAL LAW- Trial- Murder Section 300 (1) (a) CCA –one offender cut deceased with knife-deceased retaliated armed with bush knife- pursued offender-cut offender- another stoned head of deceased –internal bleeding-death -section 7 & 8 CCA-no self-defence- no provocation-sentence-parity of sentence

Facts

The three defendants were part of a group that had gone to collect K30 owed by the deceased for credit of a chicken. They did not collect and an argument developed. One of the defendants cut him with a grass knife. He retaliated by arming himself with a bush knife chased the defendant who cut him and cut him. One of the other defendants threw a stone hitting him on the head and he bled internally and died.

Held
All defendants acted in concert aiding and abetting each other.
All sentenced equally, there was no parity in sentence.
25 years IHL minus time in remand for all defendants.

Cases cited:
Clive Givero & 4 others Supreme Court decision on the 29^th June 2000
Golu v The State [1979] PNGLR 653
Gimble v The State [1988-89] PNGLR 271
Kama v The State [2004] PGSC 32; SC740
Lawrence Simbe v. The State [1994] PNGLR 38
Max Java v The State (2002) SC701
Manu Kovi v The State [2005] PGSC 34; SC789
Public Prosecutor v Tom Ake [1978] PNGLR 469 at 472.
Thress Kumbamong v The State (2008) SC1017
State v Sokai [2002] PGNC 21; N2334
State v Yokum [2002] PGNC 24; N2337
State v John Kunue Sinue and Keith Sinue CR 384 of2003, CR 385 of 2003 (2006)
Sanawi v The State [2010] PGSC 31; SC 1076
The State v Rex Lialu [1988-89] PNGLR 449
Wani v The State [1979] PNGLR 593

Counsel:
A. Bray, for the State
B. Popeu, for the Defendants

SENTENCE

2^nd August, 2017

1. MIVIRI AJ: This is the sentence of the court against the three defendants, two Umbun brothers and their relative in that matter. I found them each guilty of murder on the 8^th May 2017 and published my verdict then. Counsel applied for presentence and means assessment reports to be furnished to court which was done for each defendant and both counsel addressed the court on sentence. I adjourned to consider all these material and to now finally deliver an appropriate sentence.
   

Background Facts

2. A stone was thrown at the head of Jonas Koroi by Morris Lawrence causing intracranial bleeding to the left side of the head from which he died despite admittance to the Kimbe General hospital. This was the climax of a dispute over K30 for live chicken owed by the deceased Jonas Koroi sold by Eliza, Casper, and Morris Lawrence. The three of them accompanied by the Umbun brothers Maxillus and Exaviour went to the deceased in the early hours of the morning of the 28^th February 2012, where he was resident in the premise of his sisters Francisca Popotsi and Kasmera Kura to collect it. They couldn’t accept his explanation that he would come into Kimbe get the money and repay them. Fight erupted in which Exaviour Umbun came with a grass knife and cut the head of Jonas Koroi, who retaliated arming himself with a bush knife from within the house that he used to pursue Exaviour Umbun to his house where he cut him and then was himself stoned.
   

Issue

3. What than is the appropriate sentence here for the three prisoners?
   

Law

4. Section 300 (1) (a) prescribes the sentence as subject to section 19 imprisonment for life. The maximum sentence of life years is not warranted here given the facts and circumstances. Rather a determinate term of years is in order considered in the light of section 19 of the Code which is the discretionary powers bestowed upon the court. Hence its use is triggered by the facts both in favour as mitigating and aggravating including the general circumstances of the case. There is therefore a balancing to be done to arrive at a just and appropriate or proportionate sentence. It means that facts must not be overstressed or under stressed or inflamed to arrive at a sentence. It is a delicate balancing act between the life that is lost forever and the life that will continue after the sentence expires.
   
5. Here peculiar to this case a trial on murder was run leading to the conviction a sentence depicting that fact as opposed to a guilty plea will follow. Further a life of a 28 year old man in the prime of his life was unnecessarily taken with the use of a stone to the most venerable part of the body the head over a mere K30. What is K30 compared to the life of two young children of this 28 year old man who will now for the rest of their lives grow up without their father. This is stressed in the probation report amongst other things by Gabriel Koroi and Francisca Wartete, the elder brother and sister of the deceased. Both plead for the need to sustain both children confirming that K2,500 in cash has been received but deny that K28, 000 has been received as claimed by all the defendants through their uncle Lawrence Umbun a business man. The crime is not personally against that family but against the State as a whole including the family of the deceased. I find that K2, 500 has been verified as received but not K 28, 000 and any sentence passed will take account of this fact. Some compensation not substantial was paid by a relative and not personally by the Prisoners.
6. The evidence is that all were drunk and had been drinking alcohol alongside the road before coming into the block of the deceased. It cannot be said that eliminates the consequences of the actions jointly as voluntary intoxication of alcohol is not a defence.
   
7. This is also a very prevalent offence and warrants a stern and deterrent sentence. It must be distinguished from Manslaughter under section 302 which is killing against the law, accidental killing, unintended killing, spleen killing, and one punch with a thin skull killing. In The State –v- Rex Lialu [1988-89] PNGLR 449, Amet J (as he then was) said at 452:

"I consider that our sentences for manslaughter must reflect the serious view that the legislature took over loss of human life in fixing the maximum sentence as life imprisonment. This is also a reflection of the community’s view against unwanton killings. I repeat my view that sentences for manslaughter must be relatively higher than sentences for rape and robbery to reflect the sanctity of the life given by God which no man has the right to take or deprive prematurely. A life has been taken which cannot be restored, quite unlike rape and robbery."

8. What his honour stated in Rex Lialu (supra) though manslaughter, is applicable here and equally trite of the facts here. This is murder where there is specific intent to cause grievous bodily harm or life threatening injury, or killing perpetrated in the course of another criminal offence as in aggravated armed robbery, see State v Gurua [2002] PGNC 41; N2312 (11 December 2002). Hence the sentence will be higher compared because it is not likened to rape or robbery nor manslaughter as it is more serious. In other words sentences for murder being the more serious offence should be higher than of manslaughter less serious homicide, but should not be equal or on par with that of wilful murder.
   
9. This is where the prominence of the guidelines for homicide offences set out by Manu Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) comes into play as consistency and commonness in sentencing is stressed. It cannot be likened to legislative power, but a useful tool for the allocation of a proportionate and comparable sentence between the varying degrees of the homicide offences that one does not overlap, over stress or under stress sentence. Counsel defending urges interplay between category one and two of that case applicable to the facts here. Whereas counsel prosecuting urges that it is category two of that case applicable to the facts of the case here. The balance between the two is that each case is determined on each own facts and circumstances. No one case is one and the same with another on all facts and circumstances. But always there is a common denominator which is the death of a person, use of weapons in the death caused, or no use of weapons, group attack or a sole attack, plea or trial, and which list is not exhaustive but guidelines common which Manu Kovi (supra) has set. And it is always useful to take account and to give consideration to determine a final sentence in the case before hand as here.
   
10. I give due consideration given all the facts for and against mitigating and aggravating that category 2 is applicable here, but I give concession to the defence counsel that each case is determined on its own facts and circumstances Lawrence Simbe vs. The State [1994] PNGLR 38. A guide is only a guide and does not take away or clams or chains fetter the sentencing discretion of the court: Thress Kumbamong v. The State (2008) SC 1017. But it is useful to take account that similar or like facts of the case here has drawn the range of 16 to 20 years in jail as in Manu Kovi (supra). And I do take account in determining an appropriate sentence given the facts before me here.
    
11. I distinguish State v Gurua [2002] PGNC 41; N2312 (11 December 2002) where the Prisoners David Bawai and Tom Gurua were given distinct sentences from Joseph Nimagi following trial on murder committed in the course of an armed robbery. He was watching over one Mrs Aihi at the time that David and Tom decided to abduct the daughter of the headmaster who retaliated to prevent and was shot by one of them in the process, the court imposed 50 years against them both for their lead and 20 years for Joseph Nimagi. Imposing a blanket sentence of 50 years would have meant that Joseph Nimagi would have been caught in that tidal and his role smothered without proper and proportionate accountability in law. See also State v Yokum [2002] PGNC 24; N2337 (4 December 2002) which is primarily a discussion on parity of sentence. Read with Sanawi v The State [2010]PGSC 31; SC 1076 (29 September 2010). I hold that principle applicable here given the facts of this case where Exaviour Umbun is 15 years old at the time of the commission of the offence 28^th February 2012. Yet he was the one who ran up with a grass knife and cut the deceased on his head. It was this that ignited and set in play the offence as Morris Lawrence picked up the stone and threw it at Jonas Koroi killing him. The domino was set in motion by the actions of Exaviour Umbun without which there would not have been death here. He cannot be treated like Joseph Nimagi in State v Gurua (supra) his action cancel out any leniency in his favour or parity.
    

Serious and aggravating features

12. What are the serious and aggravating features of the case here? Aside from what I have set out in the preliminary above, the state Prosecutor has submitted this was a group attack. The deceased was awoken from his sleep and the attack was vicious. There were some pre planning and a stone was used as a weapon thrown at the head of the deceased. The prisoners were the instigators of the fight and it was reasonably foreseeable that death would result. The deceased was armed after he was chopped by the Prisoner Exaviour Umbun. Even though the probation report is favourable this is a killing of a human being. No amount of compensation will adequately settle the matter here. It is a category two matter in line with Manu Kovi (supra) where all participated and therefore all be equally punished. That 16 to 20 years be imposed on all. I accept the State submission that indeed these are the serious and aggravating features of the case. I consider all applicable in the sentence that will be passed upon the Prisoners.
    
13. I consider it appropriate and add that where the fight or other criminal action invades the privacy of a home be it a castle or shack that is likened in my view to the invasion of the house and privacy, and is serious reflected in the often quoted armed robbery case of Gimble v The State [1988-89] PNGLR 271. Where sentence has been increased to reflect. The principle is applicable here like any other person the deceased had a right to the enjoyment of his property or premises here he was resident with his sisters. They had a right to the enjoyment of their property without a criminal offence perpetrated there and then. The Prisoners did not show respect that the deceased was on the property of his sisters. As in Gimble v The State (supra), I consider and determine that the sentence must reflect the seriousness of this fact as aggravating the offence.
    
14. In addressing the proportionality of the sentence the material facts are that this was a flow of events not broken in any way or set apart one from the other, one escalated to the climax. Exaviour Umbun triggered the arming of the deceased with a knife when he cut him on the head with the grass knife. It was an immediate retaliatory act to defend himself and he set upon and cut Exaviour Umbun in the course of which Morris Lawrence threw the stone on his head killing him. Self-defence was not run by Morris Lawrence in his defence, he chose to deny and to shift the blame to Jonathan Vatete. In sentencing it could not be held in his favour that he was defending another and therefore reflected in the sentence that is passed upon him. And even then this was a culmination of what the Prisoners had all set out to do. It was foreseeable as rightly submitted by the state that it was probable that death or grievous bodily injury would result climaxing as here. I am not convinced and satisfied in law both substantive and case law on the arguments advanced by the defence that Morris Lawrence should be treated differently. I find no facts or circumstance before me to differentiate Morris Lawrence from the other two Prisoners. I find all equal players in the crime of murder and make no distinction in the sentence to be passed upon each.
    
15. There must be justifiable grounds or reasons for disparity in sentences and the Supreme Court in Sanawi (supra) sets out the principle in the following terms:
    

“A consideration of all these authorities shows that a court can impose a sentence that is in disparity with a sentence received by an offender’s co accused. That can only happen if there are good reasons such as prior conviction, conviction after trial, and playing a more active and leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be just one such factor or there could be a combination of them”

16. There is no doubt here that all three prisoners acted in aiding and abetting each other in the commission of the murder of the deceased. I consider and determine that here Exaviour Umbun was 15 years old at the time of the commission of the offence on 28^th February 2012 and is now 20 years old. He is entitled by parity to have his sentence reduced on that fact of his youth but then I consider that he was the one who was the instigator of the attack upon the deceased with the use of the grass knife that he cut the deceased on his head with. That had he restricted himself to fists the deceased would not have died. His use of the grass knife prompted the deceased to arm himself and that is the evidence. I consider and determine that to reduce any time in the light of the principles of parity given this fact will be disproportionate not safe and satisfactory to any sentence so reduced. Consequently the effect is that they cancel out so any sentence imposed must reflect that he played a very leading role in the subsequent death of the deceased. He will therefore be sentenced in likeness to Morris Lawrence and Maxillus Umbun.
    
17. Each one of Prisoners was not an innocent bystander in the matter but an active participant in the crime in accordance with Wani v The State [1979] PNGLR 593 (30 November 1979) and the sentence must be decided according to the role played in committing the crime. I adopt in full and apply Gimble v The State [1988-89] PNGLR 271 at 273 said:

“The general rule is that all active participants in the crime shall 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 the 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 part the crime could not be perpetrated.’

Mitigation

18. Morris Lawrence you are 32 years old originally from Nale, Maprik, East Sepik Province. You are married with three children, unemployed and assisted by your uncle doing routine work paid K300 to K500. You have not been in trouble with the law before. This is your first time. You stoned the deceased on the left side of his head from which he died.
    
19. Maxillus Umbun you are 25 years old from Toukim, Wosera, East Sepik Province. You are also a first offender with education level to grade three at Wanjua Primary School in 2001. You stood in wait to assist should there be need and you ran up but your brother Exaviour assaulted with the grass knife whilst you were there ready.
    
20. Exaviour Umbun you are 20 years old now but at the time of the offence you were 15 years old from Toukim, Wosera, East Sepik Province. You are educated to grade 6 at Mamota primary School in 2012. You have been employed by your uncle Lawrence Umbun as a general labourer truck driver. You are also a first offender. You ran up with the grass knife and cut Jonas Koroi on the head. It was this cut that had Jonas Koroi react leading to the stone from Morris Lawrence that hit him on his left temporal from which he bled to his death.
    
21. The three of you led good lives with no prior conflict with the law until this day presumably because of the consumption of alcohol as per the evidence. Now that its effect has withered off you accept the seriousness of the actions that you authored. You have all been found guilty after trial and sentenced after would be higher compared to on a guilty plea. In the case of Max Java vs The State (2002) SC701 unreported judgment dated the 20^th December 2002, the applicant on review challenged that the 20 years IHL imposed upon him on a guilty plea to murder was manifestly excessive. He had attacked the deceased repeatedly with a grass knife over an argument involving his garden. The Supreme Court dismissed the review holding that the 20 years imposed was not manifestly excessive having regard to the prevalence of the offence in the community.
    
22. Yet in another supreme court case Kama v The State [2004] PGSC 32; SC740 (1 April 2004) he appealed against the 25 years that was imposed upon him by the National Court for murder that was committed in the course of an armed robbery where he shot the driver of the vehicle with the gun on the head killing him instantly. His appeal was dismissed and the sentence was confirmed with the Supreme Court remarking that here a cross appeal was warranted against the inadequacy of the sentence passed. In a similar case in State v Gurua (supra), in the course of an armed robbery the deceased was shot dead as he tried to rescue his daughter. The court imposed 50 years IHL after trial.
    
23. In Kimbe before Justice Cannings in State v John Kunue Sinue and Keith Sinue CR 384 of 2003, CR 385 of 2003 (2006) in a mob attack the deceased was bashed to his death. The court sentenced all to 25 years IHL. A similar case was that of Clive Givero & 4 others where the Supreme Court decision on the 29^th June 2000 imposed 20 years IHL upon the appellants who had attacked the deceased with sticks and stones where he died of massive internal bleeding.
    
24. You were in a mob attack that is why you survived and he did not. This was a trial and not a guilty plea, Max Java (supra) pleaded guilty in 2002 attracting the sentence of 20 years for repeated attack with a grass knife on the deceased. Kama (supra) was in 2004 where he pleaded guilty to shooting a passenger on a PMV in the course of an armed robbery. His appeal was dismissed on a 25 year sentence which should have been the subject of a cross appeal. State v John Kunue Sinue and Keith Sinue CR 384 of2003, CR 385 of 2003 (2006) was a mob attack like your case attracting 25 years.
    
25. Murder is a serious and heinous crime because life is sanctified and society places high value on it and courts impose strong punishment to reflect that fact even where there is a guilty plea and remorse expressed: Public Prosecutor vs. Tom Ake [1978] PNGLR 469 at 472. State v Sokai [2002] PGNC 21; N2334 (19 June 2002) is pertinent and relevant here. Sentences for murder has been increasing because of the prevalence of the offence and as the Deputy Chief Justice Sir Gibbs Salika said in State v Hurotove [2017] PGNC 114; N6754 (5 June 2017:
    

“The court has a duty to impose 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 be an inhibiting factor. Our People need to be educated to a level that will instil some moral values in people’s lives. Living in a city with church influences has not helped to curtail these wanton killings.”

Following trial His honour imposed a head sentence of 22 years IHL on both Prisoners.

26. I determine an appropriate sentence, given these facts and adopting and applying Manu Koivi would be 25 years as reasonably proportionate to the gravity of the crime of murder committed here taking account of the facts and circumstances for and against. I am convinced that it is safe and satisfactory to be applied in the case here. Accordingly, I sentence you Morris Lawrence and Maxillus Umbun and Exaviour Umbun for the crime of the murder of Jonas Koroi all to 25 years IHL. I deduct the time in custody for you all.
    

Sentenced accordingly,

Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant