State v Emma [2019] PGNC 416; N8098 (27 September 2019)

N8098

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 608 OF 2019

THE STATE

-v-

BENJAMIN EMMA

CR NO. 609 OF 2019

THE STATE

-v-

PAUL TOM

Daru: Koeget, J
2019: 19^th, 20^th, 21^st, 23^rd, 24^th, 25^th, 27^th September

CRIMINAL LAW - Indictable offence – Murder pursuant to section 300(1) of the Criminal Code Act – convictions after a trial – Exercise of court’s discretionary powers under section 19 of the Code

FACT

On the night of 20^th October 2018 between 10:20 pm and 10:30 pm Benjamin Emma and Paul Tom were at Nabaro Yard located along Murray road after drinking tuba, an alcoholic drink made from coconut at Gaima Corner in Daru, Western Province.

The accuseds confronted the deceased Ruben Nakati standing along side of the Murray road playing music on his mobile phone and boom box.

The accused Paul Tom attempted to pull off the deceased’s mobile phone when co-accused Benjamin Emma standing close by took a knife and stabbed the deceased in the left hand side of the chest and he began gasping for air immediately so retreated to his parent’s premises.

A by-stander named Abraham Bama intervened to assist the deceased and he too was attacked by the accuseds chased into his parent’s premises, a few meters across the road on the opposite side. The accuseds picked up the boom box and both ran in the southly direction to the Fly River Provincial Government office where they met up with three other persons. The five of them ran in the eastly direction up the slope down to PNG Power station then to Gaima Corner and eventually to Frog town settlement.

Case Cited:

Manu Kovi –v- The State (2005) SC 789
State –v- Felix Ben (2019) N8012

Counsel:

D. Mark, for the State
J. Kolowe, for the Accuseds.

27^th September, 2019

1. KOEGET J: INTRODUCTION: The accuseds are charged with one count of Murder pursuant to section 300 (1) of the Criminal Code Act chapter 262. The State invoked section 7 of the Code as both acted in concert in the commission of the offence.

Trial –

2. The accuseds pleaded not guilty and at the commencement of the trial, the State prosecutor tendered by consent the following documents:-

(a) Record of interview of Benjamin Emma dated 7^th February 2019 (marked “Exhibit 1” for the State).

(b) Record of interview of Paul Tom dated 7^th February 2019 (marked “Exhibit 2” for the State).

(c) Sketch plan of Crime Scene (marked as “Exhibit 3” for the State).

(d) Photographs – frontal view of the wound on deceased’s body (marked as “Exhibit 4” for the State).

(e) Photographs – closer view of the wound on deceased’s body (Marked as “Exhibit 5” for the State).

(f) Photographs of boom box of the deceased (marked as “Exhibit 6” for the State).

(g) Post Mortem Report dated 22^nd October 2018 (marked as “Exhibit 7” for the State).

EVIDENCE FOR THE STATE

3. The witness Abraham Bama stated he is a security guard supervisor at New Century Hotel in Daru. On the evening of 20^th October 2018, he went to the New Century Hotel to check the security guards on duty that night and returned to the family residence located along Murray road in Daru. His family residence is directly opposite the family residence of the deceased and he has lived there for 37 years.

4. He saw the deceased walk out of the family premises with his mobile phone and a small boom box when he arrived at his residence. He said good night to the deceased and walked into his family residence and collected fallen ripe mangos and put them in a bucket. He saw Elliot Sere and others arrive as well at their family residence located along Murray road few meters across the road on the opposite side. He saw the deceased walk to the dark part of the road towards the Fly River Provincial Government office in the southly direction so he said “son it is dark and not safe as it is late too.”

5. Then Billy Inabi and Edward Tabua came out of the Inabi family residence also located along Murray road on the opposite side of the road and so he went and joined them. They drank some beer and when the beer finished, both strolled down the Murray road in the northly direction to town. He bide them good bye and walked into his family residence and the deceased too walked into his family residence. He fetched water in the bucket and washed the ripe mangos and as he sat and ate mangos, saw two men walk along Murray road in the northly direction from the Fly River Provincial Government office to the deceased standing in the dark on the side of the road.

6. Both men ran and pulled off the deceased’s mobile phone and one of them stabbed him. When the deceased retreated into the family premises he called out to the deceased and said; “Ruben are you going now?” He repeated it three times but there was no response.

7. He walked to the two men thinking they were neighbours and noticed one had a T/Shirt wrapped around his head. He asked them: “Did you come to see someone or are you here to pick something?” Both men did not respond. One of the men threw a punch at him, which he blocked, then twisted that person and pushed him towards the other person. He ran into the family residence and hit the walls of the house to alert others of the danger but all were asleep so he went to the rear of the house to pick up stones to defend himself.

8. In the meantime, the dogs chased the men out of the premises and when he came to the front of the house with stones, those persons went to Elliot Sere’s residence and then ran back along Murray road pass his family residence in the southly direction towards the Fly River Provincial Government office.

9. He ran after the two men and met Elliot Sere at the United Church premises and noticed Elliot Sere was bleeding as he too was stabbed by the same people. He went to the deceased’s family residence and saw deceased lying so assisted others to search for transport to take the deceased to hospital.

10. A vehicle was stopped and the deceased was transported to the hospital. The same vehicle brought the deceased’s body to the residence as he was pronounced dead on arrival at the hospital.

11. The witness Elliot Sere stated he lived in a family residence located along Murray road, a few metres away from the deceased’s family residence. His family residence is located on the same side of Murray road as the deceased’s family residence.

12. On the night of 20^th October 2018, he attended the dart competition and returned home between 8 o’clock and 9 o’clock. He was with a friend named Gire and both sat and drank some beer and listened to music provided by his boom box. He saw two boys run towards himself and Gire and the tall boy took out a knife and stabbed him on the left inner thigh. They picked up his boom box and ran in the southly direction along Murray road towards the Fly River Provincial Government. He chased them and the boys ran to Gaima Corner settlement. They were armed so he did not run after them to Gaima Corner settlement. He walked to Kuki guest house and returned home.

13. The witness Okol Bege stated he had lived at Frog town settlement in Daru for over 37 years now. He knows the accuseds well as they too live with their respective parents at the same settlement in Daru.

14. On the night of 20^th October 2018, he was at a market at the entrance to Gaima Corner Settlement. There were three tables people put to sell food stuff, betel nuts and cigarettes. Each table had a torch switched on and hanged on a rope upside down so lights were provided by these torches to the tables at the market. He saw the accuseds with three other boys as he knew them. They ran pass him to Gaima Corner settlement with a boom box still playing music.

15. This witness’ evidence is consistent with the evidence of Arai Kerisoma who stated that she sat at the market in front of her residence at the PNG Power station when she saw five boys running down the slope from the Fly River Provincial Government office pass her and headed to Gaima Corner settlement.

EVIDENCE FOR DEFENCE

16. The accused Benjamin Emma stated that he drank tuba with Paul Tom, and three others (named) at Gaima Corner settlement. They went to Frog town settlement and purchased more tuba and the five of them went to Samari Corner then proceeded to WC Oval and then to Arubia canteen located along the Cameron road. They walked up to the Fly River Provincial Government office were three boys (named) were waiting. He continued to walk along Murray road in the northly direction towards the Education office closely followed by co-accused Paul Tom.

17. He denied sighting the deceased and stabbing him with a knife.

18. However, he admits stabbing Elliot Sere on the thigh and stealing his boom box and fled with the boom box still playing music. He ran along the Murray road in the southly direction towards the United Church mission station and at the intersection pass the Fly River Provincial Government office, veered in the eastly direction pass the PNG Power station then to Gaima Corner settlement. He identified the boom box stolen from Elliot Sere when shown in court.

19. The co-accused Paul Tom testified in defence that on 20^th October 2018, he was with Benjamin Emma and others (named) drinking tuba at Gaima Corner settlement. When the tuba finished, they walked to Frog town settlement and purchased more tuba and set off to Samari Corner.

20. They left Samari Corner and walked to WC Montforth oval then proceeded to Arubia canteen located along Cameron street and walked up the slope in the eastly direction to the Fly River Provincial Government office where they left three boys (named). He followed Benjamin Emma and walked in the northly direction towards town. He saw the deceased standing in the dark under the mango trees playing music on his mobile phone and small boom box. He saw Benjamin Emma went and stab the deceased and retreated to his parents premises a few meters from the side of the road. He assisted Benjamin Emma by throwing a punch at a person that came to assist the deceased but that person blocked it, held and threw him into the ditch.

21. He saw Benjamin Emma walk further along the road and stab Elliot Sere. He assisted Benjamin Emma once more when he fought with another person that assisted Elliot Sere. The boom box was snatched off and both ran along Murray road towards the Fly River Provincial Government office in the southly direction. At the junction pass the Fly River Provincial Government office they veered in the eastly direction up and down the slope running pass the PNG Power station then to Gaima Corner settlement.

22. He maintained that Benjamin Emma stabbed the deceased and Elliot Sere that night. He only threw punches as he was drunk.

Analysis of Evidence

23. The testimony of Paul Tom is consistent with evidence of Abraham Bama and Elliot Sere. The accused Benjamin Emma stabbed the deceased with knife he carried that night for no apparent reasons.

Verdict

24. So the issue of identification raised by the accuseds has no substance and is negative by the State.

25. The accused Benjamin Emma is properly identified as the person that stabbed the deceased and Elliot Sere on the night of 20^th October 2019. He was assisted by accused Paul Tom. The presence of Paul Tom at the scene was willed and he lent support to Benjamin Emma in committing the offence charged. The State has proven its case against the accuseds beyond reasonable doubt. So both accuseds are convicted as charged.

ISSUE

26. What is the appropriate sentence the court ought to impose upon the prisoners.

LAW

“Section 300: Murder.

(1) Subject to the succeeding provision of the 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 harm to the person killed or to some other person........
  

Penalty: subject to section 19, imprisonment for life.”

PERSONAL PARTICULARS

Benjamin Emma

27. He is 18 years and is a bachelor. He is from Samari village in the South Fly District. He resided with parents at Frog town settlement in Daru on the date he committed the offence. He has no formal education.

Paul Tom

28. He is 18 years of age and is a bachelor. He is from Samari village in the South Fly District but resides at Frog town settlement in Daru on the date he committed the offence.

29. In 2018, he attended Daru Chalmers Primary school and was in Grade 8 when he committed the offence.

AGGRAVTING FACTORS

30. A weapon was used in the commission of the offence. Both aid and abetted each other when deceased was attacked and stabbed with a knife.

31. The knife penetrated the left lung causing it to collapse and the deceased died soon after the stab.

32. Such offence is prevalent in the province and in the country as well.

MITIGATING FACTORS

33. Both are youthful first time offers.

34. They have been in custody awaiting completion of the case for 10 months and they appeared from custody.

SENTENCE

35. The prisoners are youthful first time offenders. Both committed the offence after consumption of alcohol. The deceased too was a youth in his 20’s and was killed for his mobile phone and a small boom box he played music that night.

36. The prisoner Paul Tom admitted in the record of interview that on the night of the commission of the offence he was with Benjamin Emma at the front of the Fly River Provincial Government office.

37. He followed Benjamin Emma down Murray road in the northly direction and saw the deceased standing in the dark under the mango trees playing music on his mobile phone and a small boom box.

38. He saw Benjamin Emma approach the deceased and stabbed him in the chest and the deceased retreated into his family residential premises.

39. He also saw Benjamin Emma approach Elliot Sere and stab him in the leg with the same knife and Benjamin Emma snatched the boom box and both ran to the Fly River Provincial Government office where they were joined by three others (named) and all ran down the slope to Gaima Corner settlement.

40. The admission by Paul Tom is in detail and he maintained the same evidence in the trial. So the trial was futile and a waste of court’s time.

41. In contrast Benjamin Emma denied sighting the deceased and stabbing him with a knife. He admitted stabbing Elliot Sere and stealing his boom box.

42. However, on allocatus, he apologise to the deceased’s family for causing the Death of the deceased.

43. So the deceased was murdered for no good reasons by Benjamin Emma. The deceased was a bright student at Daru Secondary School and graduated after completion of grade 12 in 2018. He won a scholarship to study in the Philippines to become aircraft pilot. He had good prospect in the future had he pursued the scholarship overseas. The parent’s and family’s expectations of his success was high but shattered when murdered by the prisoners.

44. The prisoners can see the sun rise in the east and set in the west each day. They can breathe fresh air and happily communicate with their respective parents/siblings but the deceased cannot because his life was prematurely terminated by the prisoners for no good reasons. No one can measure the pain and suffering experienced by the deceased’s parents and siblings.

45. He was expected to live full life like everyone else but cannot as his life was terminated prematurely.

46. In my opinion, these factors are very serious in this case, and in the exercise of the court’s discretionary powers under section 19 of the Code, higher sentences outside of the range set out in the case of Manu Kovi –v- The State (2005) SC 789 are warranted.

47. The prisoner Benjamin Emma is therefore sentenced to 40 years in hard labour. The pre-trial custodial period of 10 months is deducted. He is to serve the balance of 39 years 2 months at Ningrum Corrective Institution as Daru Corrective Institution is over-crowed at present.

48. The prisoner Paul Tom co-operated well and admitted commission of the offence to the police in the record of interview. He maintained same in the trial when he gave sworn evidence. A discount in sentence is accorded so he is sentenced to be imprisoned for 30 years in hard labour. The pre-trial custodial period is deducted and the balance of 29 years 2 months are to be served at Ningrum Corrective Institution.
_____________________________________________________________
Public Prosecutor: Lawyer for State

Public Solicitor: Lawyer of Accused