State v Homo [2017] PGNC 406; N7493 (24 November 2017)

N7493

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 639 & 640 OF 2015

THE STATE

-V-

PENIAS HOMO
&
NAKS MIAMBA

Lae: Pitpit, J
2017: 24^th November

CRIMINAL LAW – Sentence – Wilful Murder – Criminal Code Sections 299 (1) and 7 (a), (b) & (c) – conviction after trial – killing was unnecessary – some degree of preplanning – no remorse expressed or shown – offence is prevalent – objective of the punishment both retributive and deterrence –

CRIMINAL LAW – Where two or more persons are convicted of the same offence, sentences should generally be the same - However, as sentencing power is discretionary, sentencing Authority may impose different sentence on one co-offender to the other so long as it is not grossly or unjustifiably inadequate.

Cases Cited:
Papua New Guinea Cases

Avia Ahi-v- The State (No.3) [1982] PNGLR 92.
Goli Golu-v-The State [1979] PNGLR 653;
Hen Kuru-v-Wass Kombra (1981) N292;
John Elipa Kalabu-v-The State [1988] PNGLR 193
Lawrence Simbe –v- The State [1994] PNGLR 38
The State-v- Tumu Luna (2002) N2205
The State-v- Yanding Mupang Seka- CR No. 332 of 2008
The State-v- Mark Poroli [2004] PNGNC 113; N2655
The State-v-Raphael Kuanarde [1994] PNGLR 512
Tabimaima-v-Ben Hambakon Sma [1967-1968] PNGLR 12;
The State-v- Nataemo Wanu [1977] PNGLR 152
Tony Imunu Ap-v-The State
Ure Hane –v- The State [1984] PNGLR 105

Overseas Cases

R-v-Ball (M51) CR App R 164.

DECISION ON SENTENCE

24^th November, 2017

1. PITPIT,J: I have found and convicted the two of you Penias Hombo and Naks Miamba guilty of one of the most serious offences under our Criminal Law, the offence of Wilful Murder under section 299 (1) of our Criminal Code Act.
   
2. This offence is one of the most serious because it carries the maximum penalty of death.
   
3. In its powers of sentencing the Court under our Law endowed with a discretionary power to decide what punishment it considers as appropriate to the circumstances of the offence including the prescribed maximum penalty.
   
4. The Court in its deliberation on the appropriate punishment is guided by a number of guiding principles that has been developed overtime through various sources including Case Laws.
   
5. One of the principle that is now settled and well established as part of our Law is the principle that the maximum or near maximum penalty is to be reserved for the most serious or the worst kind of its offence.
   
6. This principle had been developed over time from the case of Tabimaima-v-Ben Hambakon Sma [1967-1968] PNGLR 12; Hen Kuru-v-Wass Kombra (1981) N292; Goli Golu-v-The State [1979]PNGLR 653; John Elipa Kalabu-v-The State [1988] PNGLR 193 and Avia Ahi-v- The State (No.3) [1982] PNGLR 92.
   
7. The next guiding principle that guides the Court when exercising its power in determining the penalty to be imposed is that each case has to be decided on its own circumstances or facts: Lawrence Simbe –v- The State [1994] PNGLR 38
   
8. The next guiding principle is for the Court to then view the prisoner before it and his or her conduct and decide whether he or she is of such character that would deserve the maximum punishment or near maximum punishment to be imposed: Ure Hane –v- The State [1984] PNGLR 105 at 113
   
9. There are many other principles that are relevant when the Court is deliberating on the exercise of this discretionary power.
   
10. For the purposes of the present case, the above principles are the main principle which this Court had decided to use in its deliberation in this case under section 299 (1) and (2) provides:
    

299. Wilful Murder

(1) Subject to the succeeding provisions of this case, a person who unlawfully kills another person, intending to cause his death or that of some other person, is guilty of Wilful Murder.
(2) A person who commits Wilful Murder shall be liable to be sentenced to death.

...........

Section 19 (1) of the Criminal Code expressly provided –

(aa) a person liable to death may be sentenced to imprisonment

for life or any shorter term;

11. Having determine, the discretionary foundation of the Court’s power despite of the maximum prescribed penalty of death.
    
12. The question arises as to whether the present case is one that can be regarded for purposes of sentencing as the most serious or worst of its kind.
    
13. The State has referred to a number of cases of Wilful Murder where they have been regarded as the most serious or worst of its kind and have imposed the near maximum or the maximum prescribed penalty.
    
14. These The State-v- Tumu Luna (2002) N2205 where the Court had imposed life imprisonment. This is a case where the deceased had surrendered himself by pleading to the prisoner that they were brothers and the prisoner should leave him alone. Instead, the prisoner ignored his plea and shot him at point blank range with a single shot.
    
15. In the case of Tony Imunu Ap-v-The State. A case of an innocent 14 year old student was killed in bizarre circumstances. The medical evidence showed multiple depressed fractures of the skull.
    
16. In that case police had found the body lying naked faced down with faeces still on his anus.
    
17. The Supreme Court when dismissing the prisoner’s appeal against his conviction and Life Sentence said:
    

We are of the opinion that this was a worst type of Wilful Murder---. To deserve this killing as bizarre or brutal would clearly be an understatement, in our view we therefore hold the view that the prisoner should have been sentenced to death.

18. In the case of The State-v- Yanding Mupang Seka- CR No. 332 of 2008, the Prisoner and other congregated converged to Asak Cattle Farm with the deliberate intention to kill one James Ninga. They rounded up the deceased and his family and gunned him down at point blank range. Then proceeded to chopped up his body to pieces, speared him multiple times and took out both of his eyes. He was sentenced to life imprisonment.
    
19. In the case of The State-v- Mark Poroli [2004] PNGNC 113; N2655, the prisoner shot the deceased who was a policeman.
    
20. From these various cases one can be able to assess whether the present case falls into any of those category of cases I have referred to above.
    
21. In the present case the prisoner for reasons only he would know decided to arm himself with a flat-head screw driver and used this to kill the deceased. The deceased and the prisoner had had a fist fight but it seemed the prisoner was not satisfied. He armed himself with a weapon and stabbed the deceased with the intention to kill him. According to the Autopsy Report dated 21^st of January 2015, and quoting from the Summary Report of Dr. Lucas Komnapi;
    

The pericardial sac was also pierced with the stab wound to the base of the heart (5cm x 2cm) with rugged edges indicating multiple stabs to the same area.

22. Applying the principle in The State-v-Raphael Kuanarde [1994] PNGLR 512, the prisoner Naks Miamba when stabbing the deceased had intended to cause the death of the deceased. And eventhough the circumstances of the killing may not be closure to those in the cases referred to above, the killing was nevertheless still very serious.
    
23. In conclusion, I am of the view that this case does not fall within the categories of those cases that are referred to as the most serious or worst of its kind of killing.
    
24. However, based on the evidence of Freddy Wama, I find that this case does not have the following aggravating factors;
    
    1. That there was some degree of pre-planning.
    2. That a dangerous weapon was used namely a Flat Head Screw driver.
    3. That the force used was vicious and deliberate as reflected in the Summary report of the Autopsy Report.
    4. The case was a trial.
    5. That no customary compensation has been made.
       
    6. That no expression of remorse was offered.
    7. That death was not warranted or unnecessary. The earlier fights were fist fights and the use of a dangerous weapon was over and above any force that was necessary.
    8. The Decease had lost his life permanently.
    9. The Parents, wife and children have lost a child, husband and father permanently.
    10. His extended relatives have lost a clan or family member.
    11. Life is a very precious and divine gift no one has the right to take it or deny another from it.
        
25. In your favour is the fact that since your arrest you have been in custody all this time.
    
26. I will take into account and deduct the period that each of you have spent in custody; 3 years, 1 month and 2 weeks. I would impose 30 years in hard labour period in custody. You are to serve 26 years, 10 months and 2 weeks in hard labour.
    
27. For you Penias Hombo you are 26 years old. You were 22 years then and was residing with relatives at Martha’s block. You come from a family of 5 and you are the 2^nd born and this is your first offence. You have some level of formal education and technical training. You are married and have two children.
    
28. You too have spent 3 years, 1 month and 2 weeks in custody. Against you is that this matter was a trial. And that you have not paid any compensation or expressed remorse to the family of the deceased. For yourself, I have no direct evidence that you have done anything to the accused such as fight him, swore or threatening.
    
29. But I find overwhelming evidence that you have been present all along, with your co-prisoner Naks Miamba. You were drinking Homebrew with Naks Miamba and Manu Hoiya and others you were present when your co-prisoner and Manu Hoiya had fight with the deceased and was present accordingly to Mr Freddy Wama when the plan to lure the deceased and attack him was being planned or developed.
    
30. You were present with your co-prisoner until about 6.30am on the morning of 1^st January 2015. And you did not stop or discourage your co-prisoner for stabbing the deceased.
    
31. The law is that if it is established beyond reasonable doubt that the accused was present at the scene with the intention to encourage or assisting in the killing of the deceased and thereby aided in the commission of the offence, the accused would then be guilty of Wilful Murder.
    

See The State-v- Nataemo Wanu [1977] PNGLR 152.

32. I had find that your presence was deliberate and was one where you knew about the intention of the co-prisoner Naks Miamba to kill the deceased and you assisted in carrying the body of the deceased at point where he was killed to where his body was finally left in front of his house.
    
33. In cases where one co-accused had not acted with any greater degree of participation in crime than others but received a higher sentence of life imprisonment due to a prior conviction for Wilful Murder, the Court is justified in differentiating in the treatment of persons for the same crime. If in considering the public interest, it has regard to the differences in the character and antecedent of the convicted person and discriminates between them because of these differences: R-v-Ball (M51) CR App R 164.
    
34. On the basis of this authority and assurance, I have decided to use my discretion and would impose a lesser punishment in your case.
    
35. The sentence I have decided to impose in your case is a term of 16 years imprisonment less time spent in custody; you shall serve 12 years, 10 months and 2 weeks in hard labour.

_______________________________________________________________
Office of Public Prosecutor: Lawyer for the State
Office of Solicitor: Lawyer for the Prisoner