State v Waluka [2020] PGNC 59; N8241 (11 March 2020)

N8241

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 116& 117OF 2013

THE STATE

V

GEORGE BATARI WALUKA & EDWARD GIRU

Kimbe: Miviri J
2019: 19^th, 20^th, 21^stJune
2020: 9^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE –Wilful Murder S 299 CCA–Sentence – death from gunshot–violence revisited with violence – retaliation burning down house–Parity of sentence–section 7 and 8– totality of overt acts –active participation – sanctity of human life –prevalent offence – defiance of rule of law – 50 years IHL.

Facts
Prisoners were in company and shot the deceased in the neck with a gun killing him.

Held
Prisoners were in company fired homemade gun into air.
Second time fired at the deceased hitting him in neck.
Death resulting
Sanctity of life
Defiance of rule of law
Deterrent punitive sentence

Cases:
Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510
Goli Golu v The State [1979] PNGLR 653
Kovi v The State [2005] PGSC 34; SC789
Nimagi v State [2004] PGSC 31; SC741
State v Kuvi [2017] PGNC 270; N6934

State v Malala [2018] PGNC 357; N7445
State v Dede [2018] PGNC 356; N7448

The State v Ume [2006] PGSC 9; SC836
Wani v The State [1979] PGSC 30; [1979] PNGLR 593

Counsel:

E, Kave, for the State
D, Kari, for defence

SENTENCE

11^th March, 2020

1. MIVIRI J: This is the sentence of two men who shot the deceased with a homemade gun killing him.
   
2. On the 11^th August 2012 at Buludava, Talasea, one Joseph Waluka had died after being cut with a bush knife. His in-laws reacted in response and set three houses on fire. Which were of the prisoners George Batari Waluka, Edward Giru and another. George Batari Waluka became angry armed himself with a homemade gun accompanied by Edward Giru, Emil Waluka, and Richard Ngombu who were armed with bush knives went to where people had gathered to moan Joseph Waluka. An argument ensued during which Edward Giru threw a stone at the people moaning. Prompting them to chase them. One of the witnesses Henry Dome described, “during this incident I saw George Batari shoot Peter Dome. He was chased and turned around and fired shooting Peter Dome. When he fell down his elder brother Thomas Dome picked him up and brought him to us. This was when there was complete silence and no more fighting. We tried to bring Peter Dome back by washing him with water, but he was not speaking. Only his heart was beating. He was shot in the head. We put him on a vehicle and brought him to Kimbe General Hospital but by then he was already dead.”
   
3. Both prisoners deliberately armed themselves with dangerous weapons each and accompanied each other with another also armed. Given the attack was planned, and violence in return by those they set out to against was anticipated, here, the moaners where the body of Joseph Waluka was. They were reacting over the burning of their houses in the village on this occasion with a large gathering of moaners for the deceased. Given the history of the death emotions would have been high and that is what happened here. Both Prisoners instigated leading to the shooting of the deceased by the Prisoner. Initially George Batari Waluka fired the gun into the air dispersing the people at the moaning in fear. Both he and Edward Giru were not deterred that Police were there. Edward Giru threw the stone at the people moaning. What he did set the motion that led to the shooting. For George Batari Walukahe displayed the skill and marksmanship to hit the neck of the deceased a lethal part of the body. It was calculated and the intent was overt by that act. And this is evident because they raised their hands with the weapons they held as if in jubilation after Peter Dome was shot in the neck.
   
4. These facts seriously aggravate their roles in the death of the deceased. They are equally to blame for his death. There is no difference between one or the other in the sentence that will be passed upon them. They are not likened to Nimagi v State [2004] PGSC 31; SC741 (1 April 2004), because they were both actively involved as in Wani v The State [1979] PGSC 30; [1979] PNGLR 593 (30 November 1979).Therefore, their sentences will be equal to the demise of Peter Dome.
   
5. Who was only 17 years old and not in any way attacking them. Their actions were not justified. What they did took his life unnecessarily because there was no evidence that he was one of the persons responsible. They did not resort to the rule of law to bring those who were responsible for the burning of their houses. They took it upon themselves to summarily execute Peter Dome. They had a choice to give him his life. At the squeeze of the trigger of that homemade gun his life was stuffed out without any mercy before his immediate family looking on. It did not deter that there were witnesses to what they were doing taking the life of a fellow human being a relative. In the same way it makes no difference when they themselves plea for the welfare of their families in the sight of the sentence upon them. Humbling before the rule of law would not have taken them going in and out on remand for almost 4 years piece meal to be confirmed, each time they were granted bail, and then absconded rearrested then released on bail culminating to 4 years or there about in custody awaiting trial. These will no doubt be appropriately confirmed with Corrective Institution records to accord what period is due to be deducted from the head sentence that will be visited upon them. It is also evidence of the self-centeredness of the defendants and is a serious consideration aggravating whether the sentence should be what they plea or higher. Submission to the rule of law as here entails favourably in the cause of the prisoners.
   
6. George Batari Waluka is single 29 years old from Buludava Talasea West New Britain Province. He is the third born from a family of ten siblings. He has a grade two education with employment history once with New Britain Palm Oil Limited in 2017 as a security guard. He has no prior criminal history. Both he and the deceased are related. Hence K7000 in cash and traditional shell money 300 param has been paid as compensation. The cash has been paid to the maternal uncles of the deceased, whilst the traditional shell money has been paid to the immediate family. These are the material particulars of the presentence and means assessment reports dated 24^th October 2019 for the determination of his sentence.
   
7. Similar assessment is made in respect of the Prisoner Edward Giru who is 33 years old also from Buludava, Talasea, West New Britain Province. He is married since 2005 with three children living with the mother, his wife in the village. A first offender he is educated to grade 6 Buludava Primary school from 1994 to 1999. Like his co prisoner, he too was a security guard with New Britain Palm Oil Limited from 2017 to 2018. He is the eight out of eight siblings. Like his co prisoner he is also very closely related to the deceased. And confirms that the compensation paid was K8000 because an additional K1000 in cash was paid to the father of the deceased with K500 worth of shell money paid. He has expressed to pay further if ordered by the Court. It is worth noting that the amount has exceeded what is allowed under the Criminal Law (Compensation) Act 1991 of K5000. Here what has been done is within the family and not by the dictate of that law. It is a strong mitigating factor in favour of the prisoners in weighing an appropriate sentence in both their cases but distilled because it did not primarily come from both individually for the wrong, they committed. One must feel the pain suffering and loss of the deceased by his family here that cannot be said of the prisoners in the payment made.
   
8. Both prisoners have in their respective allocutus put their family situations as basis to be given non-custodial terms. George Batari Waluka that his mother is aging and needs his care and attention to support her there. Edward Giru has put forward the hardship faced by his wife with their three children. They are all related, but that fact has not deterred nor has it stood in the way of the commission of this offence. Blood and familial has not quelled anger and violence even in a village Buludava Talasea, where all are related given the Papua New Guinea Society and way of life. What is fundamental and defiant is that the rule of law is no longer strong and vibrant. It is no longer a deterring factor to serious crimes such as the present. As here citizens are prepared to commit serious criminal offences against their own blood. The family is the basic unit of society and it cannot be allowed to be defragmented as here. In my view a strong deterrent and punitive sentence must be imposed. And the facts and circumstances pointed out above justify against both prisoners.
   
9. Despite the guidelines in Kovi v The State [2005] PGSC 34; SC789 (31 May 2005) category two as appropriate 20 to 30 years imprisonment the range, the discretion of the court remains unbounded. Because each case is determined by its own facts and circumstances, Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510. Sentence must be proportionate and fit the crime according to law. It will not be dictated by custom or practises in life, nor is it a mathematical formula. Like offenders must be treated alike except for the facts and the circumstances. Prosecuting counsel has urged the higher end of that category but the lower end of category three Manu Kovi (supra). The convictions here are of wilful murder section 299 (1) of the criminal code act reading:-
   
   • (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.
10. Effectively both prisoners can be sentenced to death for the crime. But that 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. Given the facts here it is not the worst case the defence has urged that a determinate term of years be imposed but not the maximum. State counsel has urged that there has been no remorse expressed by each of prisoners. Rather both have been concerned about themselves rather than the deceased a relative taken by their deeds. And pleaded for non-custodial terms. The gravity of the crime is reflected by the Legislature in the maximum sentence under that section. The life of a 17-year-old has been taken away without heed of his family or the village. It is a very prevalent offence in that part of this province.
    
11. Time and again this court has had to deliver stiff sentences, Ume’s case(supra) eventuates from Pangalu in Talasea, State v Kuvi [2017] PGNC 270; N6934 (21 September 2017)originates from Ganeboku in Talasea life imprisonment was imposed, State v Malala [2018] PGNC 357; N7445 (10 September 2018) originates from Minda in Talasea where life imprisonment was also imposed. It is apparent that the punitive deterrent and strong sentences that have been imposed by this court do not and have not strengthened the rule of Law. Nor do the people there fear the rule of law. What is the purpose of sentencing here given these facts? Obviously, life taken cannot be returned to the family which is not the same for the prisoners. They will return after due time to be with their families. In this regard the sentence must be proportionate to the gravity of the offence. The dictates of emotion are not the vision of the sentencing discretion. Heed must be paid to the rule of law that life is sanctified and is not cheap as depicted. These observations were made in State v Dede [2018] PGNC 356; N7448 (10 September 2018) this court imposed 50 years upon the prisoners for assaulting cutting deceased with a bush knife and killing him. Whether the deceased is killed with bush knives as in Max Malala & 2 ors (supra) or as here Buludava with the squeeze of a trigger a life is taken denying that person the fundamental right to life section 35 of the Constitution.
    
12. Like offences must be treated alike but distinguished on the facts. Here the present offence is likened in its degree of violence to the others set out above from the same area. There is nothing to set it apart from the others in its sentence. As their lawyer pointed out there is really no mitigation except that they are first offenders. This becomes insignificant when weighed against all set out above. But both could not have acted as they did if their houses a basic human need was not destroyed by fire over the death earlier of Joseph Waluka. But this factor becomes insignificant when they take it out on the group mourning his death and then on the deceased. Resort must always be to the rule of law not otherwise.
    
13. The proportionate sentence given all for and against for the crime of wilful murder committed upon Peter Dome on the 11^th of August 2012 at Buludava, Talasea West New Britain Province upon you George Batari Waluka and Edward Giru both of Buludava are that you are hereby both sentenced to 50 years Imprisonment in Hard Labour.
    
14. Your time both on remand will be verified with the Corrective Institution Service records at the reception and will be deducted forthwith. You shall serve the remainder in jail forthwith.
    

Orders Accordingly

__________________________________________________________________Office of the Public Prosecutor: Lawyer for the State

Office of the Public Solicitor: Lawyer for the Prisoners