State v Dangiwan [2018] PGNC 503; N7620 (13 November 2018)

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RICHARD DANGIWAN
And
PIUS BLACK GILIGAWI
And
GEORGE GILIGAWI

CRIMINAL LAW – Sentence after trial – Wilful Murder –Prisoners Aggravating factors outweigh Mitigating factors – Sentencing principle of deterrence applied –Non custodial sentence on probation with conditions considered inappropriate under the circumstances - Two counts of wilful murder - Section 299 (1) Criminal Code.

CRIMINAL LAW – Sentence – Apportioned by degrees of their participation in the crime. Sentence of 40 years to 45 years - Section 299 (1) Criminal Code.

1. GEITA J: The prisoners were found guilty after trial on two counts each of wilful murder contrary to s. 299 (1) of the Criminal Code Act. The offence carries a maximum sentence of death penalty; however Section 19 (1) (a) (b) of the Criminal Code gives Courts powers to impose lesser sentences.

2. The facts as found on your convictions following the trial on 17 September 2017 are as follows: On 15 December 2014 the prisoners confronted members of the Kinminja family as they were making sago at Tul sago patch. The Tul Tais saksak patch has been in dispute between both families for quite some time. The prisoners warned the Kinminja family members that should they continue to work on the sago patch they would be killed. The next day on 16 December 2014 they returned and continued to work on the sago patch when they were ambushed by the prisoners who were armed with spears and knives. They surrounded Kevin and Cosmas Kinminja and speared Cosmas on his right side hip. As Kevin Kinminja tried to assist his brother Cosmos, he was restrained and a spear thrust under his armpit into his chest area. As he fell down he was speared on his head again. Kevin died two days later after the attack. Cosmas died at Boram hospital two weeks after the attack. The State alleged that the three accused intended to cause the death of both men and also invoked section 7 of the Criminal Code against all three men.
3. No prior convictions were recorded against all three prisoners.

Allocutus

4. Upon administering the allocutus pursuant to section 593 of the Criminal Code, the prisoners said the following:

Richard Dangiwan	Asked for a lenient sentence. My relatives are trying to pay some compensation. I am sorry to Court. My property was destroyed
Pius Black Giligawi	I am sorry for what had happened in which 2 people were killed. I am worried about wife and children. My wife has since left me and our children. I have been in prison for 3 years now.
George Giligawi	Said sorry to Court. I am married. My mother is dead. I ask for probation.

5. Upon application by your lawyer a pre-sentence report was ordered. I have gone through the report and have given it some consideration. Notable amongst the report is that your three children with ages ranging from 8 years to 18 years are technically orphaned and all out of school.

Richard Dangiwan, 47 years, single.	47 years, single. His father is dead only his mother is alive. He is the first born of 5 children. Prisoner and victims were cousins. Relatives have paid K10,000.00 as bel kol and 5 traditional ring money. Both families now reconciled. Grade 10 education at Maprik High School. Never employed. Maintained his innocence and participation? Not a suitable candidate for probation. Community against his release on probation.
Pius Black Giligawi, Age is unkown, married	Age not recorded from Nale No.1 village, Wosera. He has 13 family members, six males and seven female members. Married to his wife Julie Giligawi with five children. Confirm exchange of K10,000.00 and give custom ring money as bel kol. Nale community contributed to the bel kol. No formal education. Catholic faith and helps in the church with flowers. Killing blamed on Theo. Victim’s mother and family members still not at peace and demand a custodial sentence for the prisoner.
Georg Giligawi, 32 years, married.	32 years from Nale no.1 village Wosera. Same family members as above. Married to wife Jacquelyn with 4 young children. Grade 8 education. No formal employment. Prepared to make reconciliation ceremony when released. Catholic faith and church leader.Still maintains his innocence and participation. Not suitable for probation as community is not very receptive.

8. The thrust of Defence submissions on sentenced is premised on non-directactive participation in the killing of the two victims. They all maintained that their other brothers Theopan and Valentine committed the crime. Both accused escaped from CS custody and never properly tried for this crime. The Court was reminded again of its discretionary powers under section 19 of the Criminal Code which makes the sentence of death discretionary, shying short of the maximum death penalty (Goli Golu v The State [1979] PNGLR 653.

9. Mr Javapro submitted that a lenient custodial sentence be considered for the prisoners in light of their non-direct participation and that their case be decided on its own facts and circumstances. (Lawrence Simbe v The State [1994] PNGLR 38.)

10. Counsel of prisoners submitted that this case would fall under category 1 of Wilful Murder sentencing tariffs, of Manu Kovi v The State [2005] SC 789 with prison terms ranging from 15 – 20 year. In support of his arguments the case of The State v Kakas, Tulu & Kula [1994] PNGLR was referred to Court. This was a trial matter in which the prisoners were found guilty for wilful murder under section 7 and 8 of the Criminal Code. A homemade gun, spear and axe were used to commit the crime. The four prisoners were sentenced to 10 to 15 years, depending on their involvement and participation.

Submissions on Sentence – The State

11. The State Prosecutor Mr. Paul Tusais submitted that a life sentence or a longer term of imprisonment between 50 years to 60 years should be considered under the circumstances and made cumulative as there were two counts of wilful murder. The Court was referred to the often quoted Supreme Court case of Manu Kovi v The State (2005) SC 789 which detailed sentencing tariffs in homicide cases ranging from a low 15 years to 30 years up to the maximum sentence of death. The prisoners maintained their direct involvement and participation and shifted blame to their two brothers who are still on the run and not tried. The killing was brutal and two innocent lives taken away. Mr Tusais took issue with the prisoner’slack of remorse to the victims’ families, adding that it amounted to aggravation.

12. Mr Tusais submitted that the prisoner’s pleas in mitigation for leniency ought not to be considered seriously as two wilful murders were committed in an ambush type situation and it was pre-planned. The State submitted that the aggravating factors outweighed the mitigating factors and called for sentence within the range of 50 to 60 years imprisonment for each count and made cumulative.

13. In her attempts to compile a pre sentence on your behalf the Probation Officer Ms Dollie Hasu interacted with the community that you all lived in prior to the victims’ death. As I understood from her report the victims family members do not want you all to be released on probation despite some bel kol monies being paid to them. Your suitability for probation was not recommended due to the tense situation still existing between your two families.

Remarks

14. I have had the benefit reading your pre sentence reports prepared by Probation Officer Ms Dollie Hasu to which I am grateful. Likewise I have had the benefit of written submissions from both counsels. The thrust of State’s submissions on sentence is that the crime was horrendous and the prisoners should be punished with lenghty sentences. Their mitigation and extenuation circumstances were outweighed by their aggravating circumstances in that the murder was brutal and two lives lost.

15. The thrust of the prisoner’s submission were to see that they be released on probation with conditions notwithstanding that a serious crime had been committed. I fail to detect any genuine remorse and or acceptance of culpability on their part. To my mind this court is being invited to downplay their criminal culpability and have them released off lightly.In all fairness to have the three of you released lightly, in light of the two murders would be a travesty in my view.

Application to this case

16. On the question of decidingwhether the crime committed by the prisoner was of the worst type and whether the court should impose the maximum prescribed sentence? I remind myself that the maximum prescribed sentence are best left for the worst types of cases. (Goli Golu v The State [1979] PNGLR 653 and John Kalabus v The State 1988 PNGLR 193). Notwithstanding the fact that two lives were lost in this crime none of the three prisoners were directly involved in their deaths. This in my view would remove the seriousness of this crime to a lesser degree resulting in the Court refraining from imposing the maximum death sentence.

17. The next question is what than should the appropriate sentence be in your case each? I have had the benefit of written submissions from both lawyers on all relevant issues including the mitigation and aggravating circumstances for and against the prisoner. I need not restate them here again. A deterrence sentence in my view without any discounts other than those pre trial custody periods is considered proper under the circumstances.Supposing this court adopts the case of The State v Kakas, Tulu & Kula [1994] PNGLR as a guide, in which all four prisoners were found guilty by operation of section 7 and 8 Criminal Code of which I do now I have this to say. In the current case besides Theopan and Valentine who were directly responsible for the two brother’s killings, the three of you aided and abetted and also took part in wounding the victims and their old defenceless mother. It is therefore not altogether correct that you did not do any of those things which contributed to the killing of the victims. Since there were two murders in this case, and using the Kakas (supra) case to the sentence ought to be doubled to reflect the seriousness of this current case.
Assessment on degree of participation

18. In order to get an appreciation of the role each of the prisoner’s played in the commission of this murder and apportion a near certain degree percentage of participation, I looked at some attributes which I term were common and others which were done individually. The common attributes include: You all went out on an expedition to fight the Kiminja family at Tul Tais Saksak place; You were all armed with either spears, bush knives or some weapon of sorts; This was a mob attack; Some attributes which I consider local to the prisoners include: One of you cut the victim’s mothers fingers; one of you cut the victim’s mothers left side to her body. From this simple process I am able to work out the degrees of each of your participation individually or collectively and apportion your sentences accordingly. A head sentence of 50 years considered appropriate in my view.

19. Sentence: The Court makes the following orders. Any pre-trail custody periods to be deducted accordingly.

Prisoners	Degree of participation	Active /Passive	Sentence
Richard Dangiwan, 47 years, single.	90%	Speared Kevin on head. Also cut off victim’s mother’s fingers. Apprehended Kevin as he went to assist his brother Cosmas	45 years
Pius Black Giligawi, Age??,married	70%	Assist apprehend Kevin and restrained him as he went to assist Cosmas. Cut victim’s mother on left side of body	40 years
Georg Giligawi, 32 years, married.	70%	Apprehended Cosmas when Theopan speared on on his right hand and leg. Cut victim’s mother on right side.	40 years
Theopan Dangiwan	100%	Speared Cosmas as his brothers restrained him. Also cut victim’s mother on her head	Escaped (50 yrs)
Valentine Dangiwan	100%	Speared Kevin on his right side and he fell to the ground. His brothers restrained the victim.	Escaped(50 yrs)

NB: Theopan and Valentine have not been tried and so this sentence does not affect them. I have however included them here to demonstrate their involvement and participation together with the three prisoners in this judgment for comparison purposes.

20. I am not satisfied that a non-custodial sentence on probation is appropriate in this type of murder and will refrain from exercising my discretionary powers available to me under Section 19 of the Criminal Code Act.

Prisoner	Deceased	Sentence
Richard Dangiwan	Cosmas Kiminja	45
Richard Dangiwan	Kevin Kiminja	45
Resulting sentence to serve		45 years
Pius Black Giliwali	Cosmas Kiminja	40
Pius Black Giliwali	Kevin Kiminja	40
Resulting sentence to serve		40 years
George Giligawi	Cosmas Kiminja	40
George Giligawi	Kevin Kiminja	40
Resulting sentence to serve		40 years

21. For the avoidance of doubt all prisoners’ sentences will run cumulatively.
_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoners

National Court of Papua New Guinea

State v Dangiwan [2018] PGNC 503; N7620 (13 November 2018)