State v Bungtabu [2020] PGNC 58; N8240 (11 March 2020)

N8240

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1325, 1327, 1328, 1329, 1330, & 1332 OF 2016

THE STATE

V

ALFRED BUNGTABU & BENTLY BONZA ASIO & MARTIN TUKI & NATHANIEL SINO & GUNAN BALAI & BATA DIONI.

Kimbe: Miviri J
2019: 12^th, 13^th, 17^th June
2020: 10^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Wilful Murder S 299 CCA – Sentence – Repeated & sustained assault of deceased – Strong intention to Kill – sentence differing degree of participation – Principles of parity – application of

Facts

All Accused assaulted deceased who sustained internal injuries to head leading to his death.

Held

Sentence differing on roles in offence
Parity Principle
Application of
Evidence detailing roles in offence
Sentences differentiated following suit.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Gimble v The State [1988-89] PNGLR 271
Kumbamong v State [2008] PGSC 51; SC1017
Kovi v The State [2005] PGSC 34; SC789
Lawrence Simbe v The State [1994] PNGLR 38
Marko Ranji v The State [1994] 44
Sanawi v The State [2010] PGSC 31; SC1076
State v Gurua [2002] PGNC 41; N2312
State v Yanduo (No 2) [2018] PGNC 496; N7596
State v Kutau (No.2) [2002] PGNC 89; N2249
State v Keake (No.3) [2001] PGNC 117 N2079
The State v Ume [2006] PGSC 9; SC836

Counsel:

A, Bray, for the State
D, Kari, for the Defendants

SENTENCE

11^th March, 2020

1. MIVIRI J: This is the sentence of six men convicted with wilful murder of another.
   
2. That section 299 of the Criminal Code convicting reads:
   
   • (1) Subject to the succeeding provisions of this Code, 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.
     
3. The maximum penalty for the conviction that each prisoner sustains is the death penalty. But as I pointed out in the earlier Judgment this week it is now discretionary by The State v Ume [2006] PGSC 9; SC836 (19 May 2006) which reinforces Goli Golu v The State [1979] PNGLR 653 (14 December 1979) that the maximum or the ultimate is reserved for the worst case. Hence it would be a consideration of the facts and circumstances of their case to determine whether their case falls into the worst category of wilful murder cases or not so as to draw out the appropriate penalty upon them for their crime. That is the view urged on behalf of the prisoners: Lawrence Simbe v The State [1994] PNGLR 38. And it is coupled with Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008) where the discretion of the trial court is not fettered because use of the guidelines amounts to legislating against the discretion available to the trial Judge which he is not bound to follow.
   
4. In my view that is good law because sentencing is not a mathematical formula and cases present their own facts peculiar and not regimental. Hence to follow Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) and urge that this is a category three case but overlapping into category 4 will ultimately come down to the facts and exercise of discretion derived therefrom.
   
5. Here the relevant facts are that, between the 26^th and the early hours of the 27^th March 2016 at Dagi Prisoner Nathaniel Sino was driving his mini Toyota “Cholkies” truck registered number P6288J. On it riding with him where Prisoners Alfred Bungtabu, Bently Bonza Asio, Martin Tuki, Gunan Balai and Bata Dioni.They were consuming strong alcohol coffee punch and warrior which they mixed with coke. They finished the alcohol and so went out to Aling at green lodge store next door to get some more. As they were coming back along the way Nathaniel Sino saw the deceased Nobert Tomirai near the Reu Buku store and asked him, “igat kol rice istap?” And he replied, “istap”, and Nathaniel told him to jump on the vehicle. Along the way the boys at Elias workshop, Alfred Elias Bungtabu, Abel Elias Bungtabu, Bata John, Basil Puang and Gunan Balai all jumped on the vehicle so that a total of 10 male persons were on it.
   
6. From there the vehicle with all 10 male persons 7 of whom are the prisoners proceeded to the house of Henridika Rokus where the vehicle was parked and all were drinking alcohol including homebrewed alcohol “matuka” and drug which was smoked by Prisoners Bently, Nathan, another person Joe Kools, and prisoners To Bata Dioni and Gunan Balai. It was supplied by the deceased and one Joe Kool who rolled and supplied. Alfred Elias Bungtabu, Basil Puang, Abel Elias Bungtabu and Martin Tuki did not smoke the drug. And this drinking continued to 10.00pm where they all got on and Nathaniel drove out.
   
7. Along the way to the main highway all persons on board were drunk the music on the vehicle was loud and all were talking loudly. It was Saturday 26^th March 2016 at about 10pm to 11pm,Nathaniel Sino abruptly stopped the vehicle in the middle of road came out of the cabin got onto the tray uttered the words, Yu Kaikai kan, bihainim tait blo dring or bihainim tait blo meri”. He then lifted the deceased and spear tackled him headfirst over onto the road on the crew side of the vehicle. And Bently went down and assaulted him. The deceased ran away into the swamp there. Joe Kools told Bata Dioni to go and pull him out from there. And together with Gunan Balai they pulled him out. As they did Joe Kools assaulted him and told him to run. He ran but was caught and brought back. As we did Nathan and Bently got him from us and assaulted him back to the vehicle.
   
8. Then Nathaniel told them to put the deceased in the vehicle to leave him. They did he turned the vehicle around and went to leave him. As they were travelling Gunan, Bata and Bently continued to assault him along the way. And Bently was saying to take his life relaying what was said by Nathaniel. Deceased was begging and saying I am a human being like you why are you assaulting me. And Nathan continued to ask Bently if he was already dead yet. He said no near the crusher Bently got a pipe and hit his side. Then got the car Jack and hit him on the chest and then Bently relayed to the front that he had died. Nathaniel stopped at the crusher and turned back to the road. Then jumped out came to the tray and checked if he was already dead. Bently said he was still breathing and so got the car Jack and finished him good and proper. Then the body was removed from the vehicle to the river and Joe Kools told all to maintain silence or he will silence whoever raised the matter.
   
9. From there they drove to Lakiemata CIS where Nathan went and got a dish and then they drove to the river. There they all got out and washed the vehicle as it was filled with blood. All stood in line Gunan was at the river he fetched the water in the dish and gave it to Bata, onto Basil, onto Abel, onto Alfred and to Martin and then to Bently on the truck who washed it. Nathan checked it was clean and Joe Kools reiterated all to keep quiet and not to say anything about the killing.
   
10. The blow to the head of the deceased with a car jack was delivered by the prisoner Bently Bonza Asio. Together with Nathaniel Sino they were both leaders or instigators in the eventual death of the deceased. He delivered the fatal blows leading to the demise of the deceased. He is there in the course when the exchange takes place between Bently Bonza Asio and Nathaniel Sino as to the condition of the deceased and the intention to “Kisim Laif blo en”. Further when Nathaniel Sino utters “offim em” and Bently Bonza Asio utters, “Yupela paitim em olsem baby”. In his presence he takes the car Jack and delivers the fatal blow smashing the face of the deceased then takes a pipe and starts to smash the sides of the deceased. Nearing the crusher deceased breathing becomes short and Bently Bonza Asio lifts the car jack and strikes the chest of the deceased until he is dead.
    
11. Nathaniel Sino starts the initial assault that leads to the death of the deceased. He plays a very active role in the death of the deceased. Had he continued driving, the assault by the others would not have eventuated. He triggered the assaults that led eventually to the death of the deceased and disposal of the deceased body. He denies washing the vehicle, but this is independently corroborated by exhibit S6A and S6B statement of Gabriel Dambui who says that between 3.00am and 4.00am Nathan Sino came to the house and woke me up. “He called out and I recognized his voice woke up went and saw him. I had been on night duty and came home slept awhile. Nathan told me to get a bowl to wash himself. So, I got one and gave it to him. And they got on his vehicle and went off. I went back to sleep. I saw that Nathan was drunk when he came and saw me then. I did not see who he was with when he came.”
    
12. The medical evidence by Doctor James Apamumu of the Kimbe General hospital with report on post-mortem and medical certificate of death was that Nobert Tomirai aged 22 years old died from a depressed Skull fracture. He also had missing upper incisor teeth. Three photographs show the depressed skull and the missing upper teeth.
    
13. The following come out clear from the facts Nathaniel Sino picked up the deceased initially in his vehicle. He instigated the assault upon the deceased. He made sure he was dead with his verbal instructions. He is ably assisted by Bently Bonza Asio who implements what is discussed, the excerpts set out above demonstrate both their leadership in the offence. They were at the helm to see out the demise of the deceased. Their roles turned out the result, at the end death of the deceased. They stand out apart from the others in their role in the offence as leaders there. By their conduct they have aggravated the offence to a degree where it would be an error to treat them with the rest so to speak. They stand out apart and must be accorded what is called out by their evidence. Given these facts the principles of parity apply because they are set out by the evidence as leaders and should be treated differently in the sentence passed: Sanawi v The State [2010] PGSC 31 ; SC1076 (29 September 2010):
    

“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 exit in one case at the same time. There could be just one such factor or there could be a combination of them”

(underlining mine)

14. This court voiced similar earlier in State v Gurua [2002] PGNC 41; N2312 (11 December 2002) and it would be consistent to follow suit here given its facts and circumstances set out above. That the criminality or the participation of the prisoners in the offence will dictate as to what sentence is passed upon them. Here there are multiple prisoners and their roles are distinct by the evidence led. It would not be justice to follow Gimble v The State [1988-89] PNGLR 271 at 273:
    

“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 getaway vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.”

15. It must be a very clear case spelt out by the evidence and not otherwise. In the present the evidence is clear that the offence is planned out and its course is set by both Nathaniel Sino and Bently Bonzo Asio. The excerpts of the evidence are set out above. It will be injustice to ignore and to follow Gimble (supra) in their respective sentences. Both led a very serious group attack sustained so that the deceased was tortured and assaulted. And these were at different locations driven to by Nathaniel Sino until his demise. The assaults did not stop when he was driving and these were perpetrated by prisoners Gunan Balai, Bata Dioni and Bently Bonza Asio. And as can be seen there was communication as to how he was assaulted and the extent of his life there. This discussion led to the use of the weapon a car Jack byBently Bonza Asio to hit him repeatedly from which he died as a result. It is a very violent killing and the body was disposed off to conceal the crime. After which the vehicle was thoroughly washed to cover up the crime. What the prisoners led the others to do showed complete defiance of the sanctity of life.
    
16. Here the deceased was only 22 years old and no doubt the impact on his immediate family was devastating and will last a long time to come. It is also a very prevalent offence displaying that human life is worth nothing. Here the motive for the killing is not clear nor is it disclosed by the evidence. None of the cases sighted by counsel for the state are similar to the facts of the present case. Two though present to an extent that where there is sustained aggravation and defiance of the rule of law it would draw stiff sentences, firstly State v Kutau (No.2) [2002] PGNC 89; N2249 (24 May 2002) and secondly State vYanduo (No 2) [2018] PGNC 496; N7596 (8 November 2018). Against both prisoners category four of (Manu Kovi supra) is made out by these facts and circumstances they would be looking at the possibility of either the death penalty or life imprisonment between them. Both were seriously intoxicated by alcohol and the drugs that they consumed in the course of the night.
    
17. Nathaniel Sino is 39 years old from Sapandai village Wosera East Sepik Province. He is the eldest of seven siblings and is married with two children. He is of the catholic faith. He confirms that K24, 520 was handed to the family of the deceased at the police Station in the presence of police and Dagi Community Leaders. He has no prior criminal record. In allocutus he pleaded for mercy because he had a wife and children so that he could restore his life. All other relevant material were in the presentence and means assessment report filed.
    
18. Bently Bonsa Asio was 25 years old from Tasital, Mussau LLG New Ireland Province. He was the third child out of four. And was educated to grade 8 at Dagi Community School with no formal employment record. He was of the SDA church. He had no prior criminal history. He too confirmed the payment of the compensation in the amount set out by Nathaniel Sino. He was an asthmatic patient with a medical report to that effect from the Kimbe general hospital. In allocutus he too asked for probation and a non-custodial term as he had a wife and children. And the parents were old.
    
19. Counsel defending urged that 20 to 30 years be considered as proportionate for the crime. Whereas counsel for the State urged that both these prisoners were the leaders and should be treated different. If any they should be visited upon with the fourth category in Manu Kovi (supra) which is either the death penalty or life imprisonment.
    
20. Given the gravity of the offence depicted out by the facts and the law set out above the proportionate sentence in their cases for the crime of wilful murder committed upon Nobert Tomirai between the 26^th and the 27^th March 2016 you Nathaniel Sino of Wosera, East Sepik Province and Bently Bonza Asio of Mussau Island Kavieng New Ireland Province are both hereby sentenced to life Imprisonment each. The ultimate penalty of death has been avoided by the fact of intoxication of alcohol and the drugs that you each voluntarily took.
    
21. In respect of the prisoners Gunan Balai and Bata Dioni their roles also are set out by the excerpts of the evidence above. It is clear they played lesser roles than the leaders, but without the part they played the deceased would have remained on that vehicle. They brought him back when he ran away and kept him at bay and continued the assault in the moving vehicle. But they followed the instructions of the leaders. They would not have affected had it not being for the leaders. Viewed with the roles of the leaders it would be injustice to sentence them as with the leaders. Both are therefore by their facts and circumstances in particular their roles in the demise of the deceased drawn their sentences accordingly.
    
22. Both prisoners are from Volavolo village, Rabaul, East New Britain Province. Bata Dioni is 17 years old and Gunan Balai is 23 years old. Age is no longer the strict mitigating factor as it were because heinous crimes as here are committed by young offenders. And this court has stated Gurua (supra) that youthfulness is no longer on its own a mitigating factor, there must be special circumstances warranting. That is not the case here and so will not be a special circumstance in the determination of sentence upon them. Bata Dioni contends that he was in grade 7 when he was arrested for the crime. And has no history of employment. He is from a family of three siblings and his parents speak well of him including his education. He is of the catholic faith. Compensation has been made by the parents of K2000 and a pig valued at K1000 to the K16, 000 that was paid but has been refused by the parents relatives of the deceased contending that a strong prison term is in order for him for the crime. In respect of Gunan Balai he is the third out of eight siblings. He is married with one child was held back to work with KBSA workshop after work experience from Moramora vocational there as a panel beater. He said that K 4000 with three pigs was paid as share for him and his brother by their parents contributing to the K16000 that was paid to the family of the deceased at the Police station. He asked for the mercy of the court in allocutus and asked for probation to stay outside to look after his parents. Bata Dioni expressed remorse for the offence and asked to stay outside to look after his parents.
    
23. Given their facts their cases will fall under category two of Manu Kovi (supra) 20 to 30 years imprisonment but given their roles that they played in the demise of the deceased proportionate sentence taking account of all would upon you Bata Dioni and Gunan Balai both of Volavolo Rabaul East New Britain Province for the crime of wilful murder committed upon Nobert Tomirai between the 26^th and the 27^th March 2016 you are both hereby sentenced to 25 years imprisonment with hard labour. Your time in custody will be deducted forthwith. You will spend the remainder in jail. Like the leaders in this offence this sentence takes account that they were intoxicated at the time of the offence. The balance tilts in favour given the gravity of the offence as opposed to the age of the prisoner Bata Dioni.
    
24. Alfred Bungtabu and Martin Tuki are also both from Volavolo, Rabaul, East New Britain Province. The former is 32 years old and married with a daughter so too the latter who is 19 years old married also with a daughter. Both are educated the former to grade 10 at the Moramora Technical School in 2013 attaining a certificate in mechanical trade. The latter to grade 8 at Napapar Community School, East New Britain Province also attaining a certificate in auto mechanic at the Moramora Technical School, but with no employment history whilst the former works at his father’s workshop. For the latter he is engaged in Catholic Youth healing Ministry. Both are first offenders and were present at that time and helped to clean up the vehicle after the killing. They did not stop the crime that was committed before them. Alfred Bungtabu took the initiative to volunteer to the police his statement which has had substantial bases as to the way the verdict has come out here. In accordance with Manu Kovi (supra) they would fall into category two a range of 20 to 30 years imprisonment. In allocutus Alfred Bungtabu pleaded for a non - custodial term to look after his wife and children with his parents. And promised not to defy the law again. Martin Tuki pleaded for mercy because his parents had high blood pressure as both he and his brother were in jail there was no one to look after them. He requested to be placed on probation.
    
25. Counsel for the State has submitted Marko Ranji v The State [1994] 44 the appellant was in a group who attacked and killed another in payback. The Supreme Court confirmed the sentence at first instance of 25 years IHL. And further State v Keake (No.3) [2001] PGNC 117 N2079 (27 February 2001) this court imposed 20 years where the prisoner shot the deceased with a gun in the neck causing the death. In State v Kutau [2002] PGNC 89; N2249 (24 May 2002) the father and son argued with the deceased previously and had reconciled. The son refused to make peace and attacked the deceased with a knife to which the father joined in stabbing the deceased. Both were sentenced to 40 years each for the crime of wilful murder.
    
26. Defence has urged that the prisoners are all first-time offenders and Martin Tuki and Bata Dioni are young first-time offenders 16 and 14 years respectively at the time of committing the offence. All surrendered to police and co-operated to give their story to Police. Against this is the fact that this was a vicious group attack each of the passive prisoners had the opportunity there and then to quell the offence but chose not to. As young as they were, they were prepared to indulge in adult life of alcohol and drugs voluntarily. They bear the fruits of their labour. A car jack was used with gruesome result in the death of the deceased. He was a 22-year-old man with a right to life under section 35 of the Constitution like the prisoners. He also had a family to turn to but is denied forever that fact. And there is very strong desire to kill him. None of the passive prisoners ever stood up that he should be given his life. No mercy was accorded to him yet the prisoners now plea for their lives. It does not weigh out in their favour. This includes the prisoners Alfred Bungtabu and Martin Tuki. It is not light upon them that no hand is laid by them in the demise of the deceased. Because there and then it was within them to stop what was happening to the deceased. It cannot be swept away that it was within them to act and to voice for the life of the deceased. Their inaction is therefore as serious as if they had in fact laid hands on him leading to his demise.
    
27. Their sentence in all the circumstances would be you Alfred Bungtabu and Martin Tuki both of Volavolo, Rabaul, East New Britain Province for the crime of wilful murder committed upon Nobert Tomirai between the 26^th and the 27^th March 2016 you are both hereby sentenced to 20 years imprisonment with hard labour. Your time in custody will be deducted forthwith. You will spend the remainder in jail. In similar with the others self-inflicted intoxication is taken account of.
    
28. Warrants in each case of all six prisoners will issue accordingly.
    

Orders Accordingly
__________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoners