State v Marai [2017] PGNC 67; N6693 (20 March 2017)

N6693

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 536 OF 2016

THE STATE

V

WILLIE MARAI

Wabag: Auka AJ
2017: 9^th & 20^th March

CRIMINAL LAW – Murder – Accused a juvenile offender with others attacked the deceased and his friends – His friends escaped – Co-accused stabbed deceased with bush knifes and caused wounds on hands and legs – Accused shot deceased on his back with homemade gun and died from injuries – Murder involving S.7 – Guilty plea – First time offender – Expression of remorse – Mitigation and Aggravating factors considered – Custodial sentence appropriate – Less time spent in pre-trial custody – S. 300(1) (a) and S.19.

Case Cited:
Clive Givero & 4 others v. The State SC Appeal decided on29.06.2000
Goli Golu v. The State [1979] PNGLR 633
Lawrence Simbe v. The State [1994] PNGLR 38
Manu Kovi v. The State (2005) SC 789
Peter Napiri v. The State SC137
The State v. John Kunua Sinve and Keith Sinue CR 384 & 385 OF 2003
The State v. Mesuno & others (2012) N4701
The State v. Wapuka (2012) N4783

Counsel:
Mr. E Thomas, for the State
Mr .J Kolowe, for the Accused

DECISION ON SENTENCE

20^th March, 2017

1. AUKA AJ: The accused pleaded guilty to one count of Murder Contrary to section 300 (1) (a) of the Criminal Code Act. This provision reads;
   

“S.300 Murder

(i) Subject to the succeeding provision of this code, a person who kills another person under any of the following circumstances is guilty of Murder;
(a) If the offender intended to do grievous bodily harm to the person killed or to some other person; or.......

Penalty: Subject to S.19, imprisonment for life”

2. The brief facts of the case where that on Friday, 7^th August 2015 between 4pm and 5pm, the deceased, Aimbol Papul was at Tendelen Village, Lower Wage Local Level Government, Kandep District, Enga Province in the company of others namely Max Leno and Masol Yalip.
   
3. The deceased Aimbokl Papul and his two friends followed a bush track to Aimbols Village at Kaimbe which is on the other side of Tendelen Village. The deceased at that time had some money in cash on him. While they were walking on that bush track they met the accused and his friends. The accused and his friends were armed with a homemade gun and bush knives and set about to attack the deceased and his friends. The deceased sustained bush knife wounds on his hand and legs and was shot in his back with the home made gun. The deceased fell to the ground and the accused and his friends fled. The deceased was then taken to the house of Masol Yalip were they sought to take him to the hospital but unfortunately passed away.
   
4. The state alleged that when the accused and his co-accuseds attacked the deceased, they had no lawful justification. State further alleged that the accused and his friends intended to cause grievous bodily harm to the deceased but he died as a result of his injuries. The state invoked S.7 of the Code in that the accused perpetrated this offence with the assistance of his co-accuseds.
   
5. A Medical Report of Dr Kandandru Pondros dated 26^th October, 2015 confirmed the victim sustained bush knife wounds to his head and gunshot entry wound at the mid lumbar area.
   
6. The internal examination of the body revealed the following:
   
   1. Gunshot entry wound of about 4cm X 2cm at the mid lumbar areas and 2 exit wounds. Epigastic exit wound of 6cm X 4cm, and left upper quadrant exit of wound of 6cm x 3cm.
      
   2. Severed and recaptured small bowels perforated transverse colon, recaptured stomach, recaptured stomach, raptured spleen, raptured left kidney, numerous blood clots and facial spillage in the abdominal cavity.
      
   3. Face – distorted, blood clots with nasal bone fracture.
      
   4. Bilateral periorbital haematoma.
      
   5. Frontal skull rugged laceration but no depressed skull fracture.
      
   6. Left forearm bush-knife wound of 6 cm x 4 cm with displaced ulna and radius.
      
   7. Right lower bush-knife wound of 6 cm x 4 cm but no fracture tibia or fibiula.
      
7. From the post-mortem findings, Dr Pondros concluded that the victim died from Cardio – Respiratory arrest from gunshot wounds and head injury with bush- knife wounds.
   
8. On his statement on Allocatus, the accused said sorry to the deceased and his relatives especially the Parents and the Community leaders. He also said sorry to his own parents. Also he said sorry to the court for committing the offence and asked the court to reduce the type of punishment that it may impose on him. He said he will leave other things to his lawyer to submit to court.
   
9. In relation to the accused personal particulars, Mr Kolowe submitted that accused is aged 16 years and was a student at Tiptip Community School when he committed the offence. He is 3^rd born in the family of 5 children. He has 3 sisters and 1 brother. Both parents are alive. He is a member of the Lutheran Church.
   
10. Mr Kolowe submitted and urged the court to consider in accuseds favour the following mitigating factors:
    
    1. That accused has pleaded guilty and saved court’s time and money;
    2. That he has expressed genuine remorse;
    3. That he is a youthful offender;
    4. That he has no prior conviction;
    5. That he surrendered to Police;
    6. That two of his co-accused are still remanded in custody
    7. That the accused conceded that he held a homemade gun and shot the deceased and when victim fell to the ground others came and injured his body using bush knifes.
       
11. Mr Kolowe submitted that the maximum penalty for this crime is life Imprisonment. He submitted that the maximum penalty is reserved for the worst type of Murder case. He submitted that the court has discretion to impose lower sentences with or without other forms of punishment enumerated under S.19 of the code. He referred the court to the often cited case of Manu Kovi v. The State (2005) SC 789, but did not submit what category his client’s case falls under. He only submitted that the sentence the court should consider is within the range of 10 to 15 years.
    
12. Mr Thomas of counsel for the state submitted that a sentence between 20 and 30 years is appropriate because of the following factors which I also consider as aggravating and consider them on sentence.
    
    1. The attack on the deceased was a surprise one;
       2. The attack was by armed youths;
       3. Dangerous weapons namely a homemade gun and bush-knifes were used;
       4. Multiple shot gun and bush-knife wounds were inflicted on the deceased body;
       5. There was no provocation offered by the deceased to attack him the way they attacked him;
       6. It was a cold blooded and senseless killing;
       7. An innocent life was lost;
       8. That little weight to be given to him as a youth because he did not act like a youth. He acted like an adult and used a shotgun and shot the victim
          
13. Mr Thomas submitted that no compensation has been paid and there is no evidence that there is peace in the community. He submitted that this is a serious case of murder and a sentence within the range of 10 to 15 years is not appropriate. He submitted that the case falls under third category of Manu Kovi’s case (supra) and attracts a sentence of 20 to 30 years.
    
14. The maximum penalty for this crime is life imprisonment. The court has discretion to impose lower sentence with or without other forms of punishment enumerated in S.19 of the Code.
    
15. It is a established principle that the maximum penalty should be reserved for the worst type of Murder case; Goli Golu v. The State [1979] PNGLR 653.
    
16. It is also an established principle that each case should be considered on its own facts and circumstances, Lawerence Simbe v. The State [1994] PNGLR38.
    
17. This case is a classic example of a group of young man who without any regard for the deceased well-being and life, attacked him, taking his life in process. That in my view is a total, reckless indifference to human life.
    
18. The accused displayed careless and cruel attitude and I can only comprehend the deceased experience as unimaginable. Therefore I can conclude that his plea for mercy and leniency are overshadowed by his exhibition of heartless cruelty.
    
19. This case is one of the many hundreds of cases that come through this courts where the courts have held that sentence that is imposed must be one fitting the crime and must also deter other would be offenders.
    
20. I consider that the accused is a young man aged 16 years old. His parents are both alive. He is a member of Lutheran Church. He is a person of prior good character and has no prior conviction. He has pleaded guilty and has expressed remorse in court. In determining the appropriate sentence, I take these factors into account in his favour.
    
21. Against the factors in his favour, I take into account the following aggravating factors:
    
    1. That the attack was by armed youth,
    2. That there was use of dangerous weapons namely a shotgun and bush-knives,
    3. That multiple shot-gun wound and bush-knife wounds were inflicted on the deceased body,
    4. That an innocent life was lost,
    5. It was a cold blooded and senseless killing,
    6. That murder is a prevalent offence,
       
22. There are four (4) cases that I also refer to in assisting me in considering the appropriate sentence. The cases are:
    
    1. The State v. John Kunue Sinue and Keith Sinue CR 384 of 2003, CR 385 of 2003, (2006). This is a Kimbe case decided by Cannings J. In this case, the accuseds were sentenced to 25 years after a trial, where after a mob attack; the victim was bashed to death.
       
    2. In Clive Givero & 4 Others v. The State, Supreme Court Appeal decision on 29^th June, 2000. A sentence of 20 years was upheld after the accuseds were sentenced for having attacked the deceased with sticks and stones where the deceased died of massive internal bleeding.
       
    3. The State v. Wapika (2012) N4783. In that case the accused, 15 years at the time of the offence and affected by drugs broke the door of the house where the victim a 12 year old girl was in and raped her. The accused was armed with a axe and went after her and chopped her all over her body fracturing her skull, inflicting more than 15 deep facial Lacerations, exposing the shoulder blade and breaking ribs. The accused committed the offence to conceal the rape. The accused pleaded guilty to Murder and His Honour David J sentenced him to 25 years, less time spent in remand awaiting trial.
       
    4. The State v. Mesuno & others (2012) N4701. In that case the offenders were part of a group of men who attacked the deceased, who was a pastor, with bush knives and a homemade gun, killing him and then burying his body at an undisclosed location which was eventually found with the help of the police. The deceased was killed in sight of his 5 years-old son. The accused were blood relatives. The motive for the killing was the blame of sorcery on the deceased over the alleged death of 16 people in the village including the son of one of the offenders. One accused was 17 years of age while the others were ages between 38 and 47 years of age. All were found guilty after trial and His Honour Kangwia AJ (as he then was) sentenced adult offenders each to 34 years. For the Juvenile offender His Honour held that as the offender was not convicted in the Juvenile Court it was inappropriate to sentence him under the Juvenile Court Act as he was a principle offender in a very serious case with aggravating factors present and as such a term of 17 years was imposed.
       
23. Weighing the factors for and against the accused, I note the aggravating factors outweigh those in mitigation. Given the sacredness of human life, the vicious thoughtless attack on the victim by use of a shotgun and bush-knifes on vulnerable part of victims body which caused instant death, I accept that the case falls under the third category of Manu Kovi’s case guidelines.
    
24. Based on the above considerations I find that a sentence of 20 years is appropriate. Accordingly I impose a sentence of 20 years.
    
25. As to the submission on youthfulness of the Accused, Mr Kolowe has not put any authority before me to convince me that youth is a factor that should see reduction in sentence in a very serious case of Homicide.
    
26. In Peter Napiri v. The State SC 137, the Supreme Court held that accused person aged 17 to 19 assume adult responsibility when they commit serious offence. Therefore they should be treated accordingly, example like adults. I am of the view that the accused in this case acted like an adult in that he was armed with a shotgun and used the shotgun to shot the victim without any regard for the deceased well being and life, I find that he acted like an adult and as such I treat him as an adult on sentence. In my view he is a threat to the community.
    
27. This court imposes a term of 20 years which shall be reduced by the time spent in custody awaiting trial and sentence. He shall serve the reduce term.
    

This is the decision of the court on Sentence.

Public Prosecutor : Lawyer for the State
The Public Solicitor : Lawyer for the Accused