State v Martin [2021] PGNC 208; N8913 (15 June 2021)

N8913

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 785,786, 790, 774,776,777, 758-760,780-782, 763,766,768 OF 2019

THE STATE

V

JOSHUA MARTIN, GIDEON MITEKE, EDDIE WILLIE BUGIE, KORIMA MALAKA & STINSEN GIO
(NO.2)

Madang: Geita J
2021: 4^th, 2^nd, 16^th, 23^rd, February; 26^th March; 4^th, 15^th June

CRIMINAL LAW – Guilty Verdict – Sentence - Attempted Murder - Section 304 (a) Criminal Code.
CRIMINAL LAW – Sentence – Five prisoners pleaded guilty to three counts each of attempted murder – All serving sentence of 22 years less pre-trial custody to two counts each of murder under s. 300(1) (a) Criminal Code in 2020.

CRIMINAL LAW – Sentence – Three victims received multiple wounds by use of bush knives and other weapons- Attack was pre planned and carried out in the night- All intended a common purpose- All aided and abetted each other when they attacked and inflicted injuries on the three victims.

CRIMINAL LAW – Sentence- Three counts- 15 – 17 years each count, made concurrent.

CRIMINAL LAW- Three counts of attempted murder made concurrent to the earlier murder count.

Cases Cited:

Acting Public Prosecutor v Haha [1981] PNGLR 205
Gimble v The State [1988-89] PNGLA 271
Goli Golu v The State [1979] PNGLR 6
John Elipa Kalabus v The State [1988] PNGLR 193
Manu Kovi v The State [2005] SC789
Saperus Yalibakut v The State SCRA No. 52[2005]
State v Bulu Yasangara [2017] N5478
The State v Elizah Ute [2004] N2550
The State v Frank Johnson and Others (No.2) [2004] N2586
The State v Kanapio, Kining, Pasokio,Lipilaas and Nowar [2005] N2800
The State v Tom Keroi Gurua & 3 Others [2002] N2312

Counsel:

Deborah Ambuk, for the State
Nasson Katosingkalara, for the Accused

JUDGMENT ON SENTENCE

15^th June, 2021

1. GEITA J: The five of you pleaded guilty to the attempted murder of three victims on 26 February 2021. The offence comes under Section 304 (a) of the Criminal Code and attracts, subject to Section 19, imprisonment for life.

2. The facts as agreed by the Prosecution and Defence on the depositions for your plea of guilty are these: Around August 2018 Walter Bara’s wife Aloilolo Meteke was found dead in her house. Her family members caused several acts of retaliation on Walter’s family members. After a failed mediation in 25 August 2018 the Meteke boys accompanied by their cousins raided the Walter Bara homestead in the early hours of the morning of 1 September 2018 at Point Kiau on Long Island, in Rai Coast and attacked family members in that house. Walter Bara received cuts to his left arm, right bicep and back; Manue Bara was speared on the back of her head with a spear gun by Gideon Meteke, Samson Douglas received cuts and injuries to his back.

3. One prior conviction was recorded against the five of you.

4. The aggravating factors presented to the Court for its consideration were pre-planning and pre-meditated attack, surprise, vicious, group attack in the morning, multiple victims resulting in death and injuries, lethal weapons: bush knife and spear used, prevalence.

5. Mitigating factors include all of you with no prior convictions, first time offenders, admissions in their records of interview, de facto provocation: death of a relative in the house unexplained and remains suspicious.

6. Upon administering the allocutus on 4 June 2021, pursuant to section 593 of the Criminal Code, the accused unanimously agreed to have Gideon Meteke to be their spokesman:

Joshua Martin	As per Gedion Meteke
Gedion Meteke	We are sorry to court and the family for what we have done. We are also sorry to the victims and their families. We ask for leniency for breaking the law. We surrendered to the police and have not escaped from CS despite numerous breakouts. Also we are students. We ask for a short time and rest to be spent on probation.
Eddie Willie Bugie	Same as per Gedion Meteke
Korima Malaka	Same as per Gedion Meteke
Stinsen Gio	Same as per Gedion Meteke

7. The prisoners are currently serving sentence of 22 years to the charge of murder arising from the same incident. It follows that these counts of attempted murder, being less serious, although three victims were involved would attract sentences below 22 years. (Goli Golu v The State [ 1979] PNGLR 65. Counsel of prisoners Mr. Nasson Katosingkalara submitted that the prisoners’ sentence be made concurrent to the earlier murder count as they arose from the same transactions. (Acting Public Prosecutor v Haha [1981] PNGLR 205.

8. As regards the impact of mitigating factors over aggravating factors, the latter remains worrisome in light of three victims attacked and wounded. On their part the prisoners entered an early guilty plea and voluntarily surrendered to police. Furthermore, they all resisted the temptation of escaping from the goal, in light of two known prison breakouts during their incarceration. I have taken all these into account in this sentence.

9. As regards what is the proper starting point in attempted murder cases Kandakasi J noted that the National Court has wide discretion available to it when fixing a sentence: (The State v Elizah Ute [2004] N2550 and The State v Frank Johnson and Others (No.2) [2004] N2586. His Honor made those observations in light of the absence of sentencing guidelines given by Supreme Court. The case of Manu Kovi v The State [2005] SC789 has come to the rescue. Counsel of prisoners Mr. Katosingkalara referred the Court to the case of State v Bulu Yasangara [2017] N5478. His Honor Canning’s J devised an ingenious system in that case for purposes of setting a starting point for attempted murder. I quote “...it is appropriate to use the guidelines for murder derived from the Supreme Court’s decision in Manu Kovi’s case and set starting points at around 50% tariff, as shown in the following table...” Category 4 sentencing tariff was set at 15 years to life imprisonment.

10. Defence Counsel submitted that only Joshua Martin should be considered for a head sentence of 17 years as he attempted to murder Samson Douglas. Undisputed evidence gives support to this attempted murder. As for the four prisoners a starting point of 15 years ought to be considered as they merely aided and abetted Joshua against Samson Douglas. This Court is inclined to include Gideon Meteke also in the 17 years category as he was seen and said to be Manue Bara’s attacker. The Court was invited to adopt and apply the Cannings J method in sentencing the prisoners.

11. The Public Prosecutor in submission advanced that this case should fall within the third most serious category in that the attack was vicious resulting in the death and wounding of three victims. Ms Ambuk called for a personal and general deterrence sentence for all four prisoners.

12. Since you all pleaded guilty, you will all be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus and in the submissions that were not contested by the prosecution. (Saperus Yalibabut v The State SCRA No. 52 [2005] 27.04.06). Their presentence report details their family background and their involvement in their community. They are all related, single, unemployed with ages ranging from 18 years to 21 years. All are currently serving sentence of 22 years.

13. As regards consideration on punishments, the principles of sentencing are engrained in four main pillars: deterrence, rehabilitation, restitution, and retribution. The more serious the offence or crime, deterrence and rehabilitation are often employed by trial Judges. In the case of John Elipa Kalabus –v- The State [1988] PNGLR 193, the former Chief Justice Sir Buri Kidu had this to say:

“There are various purposes of punishments and they include rehabilitation. But rehabilitation of a criminal must not be allowed to obscure the consideration of deterrence and protection of the public from the commission of crimes”.

14. For the moment your aggravating factors far outweigh your mitigating factors warranting a deterrence sentence in my view to send a very strong message to others from committing such similar crimes. Whilst I take judicial notice of the root cause of this crime and the need to appreciate the circumstances which surrounds it, those factors alone remain insignificant in view of the attempted murder committed on three persons.

Degree of criminal responsibility?

15. The Supreme Court case of Gimble v The State [1988-89] PNGLA 271 held that the general rule when sentencing all active participants in the crime is that they be sentenced on the same basis. All are equally guilty because without each playing his full part the crime could not be perpetrated. However, in the case of The State v Tom Keroi Gurua & 3 Others, [2002] N2312 the court departed from what now appears to be the general rule in sentencing co-offenders stated in Gimble v The State. The Tom Keroi Gurua (supra) case talks about each prisoner to be punished according to the degree of his criminality in the overall circumstances of the offence committed including his personal background and circumstances. (Per Kirriwom J).

16. In view of the prisoners varying degrees of involvement in this crime I have opted to follow and apply the Tom Keroi Gurua approach ahead of the Gimble approach that is the prisoners must each be punished according to the degree of his criminal behaviour, culpability and personal circumstances. (The State v Kanapio, Kining, Pasokio, Lipilaas and Nowar [2005] N2800). Joshua Martin and his brother Gedion Meteke stand out as the ring leaders and inflicted wounds on two victims. Eddie, Korima and Stinsen tagged along with their cousin brothers to assist them in their fight. Notwithstanding their guilty pleas they were deemed guilty by operation of ss. 7 and 8 of the Criminal Code.

17. Due to the foregoing reasons coupled with the exercise of my discretion, I have come to the conclusion that an appropriate sentence to be imposed upon the five of you would be based on the principle of deterrence.

18. The victims were unarmed, all asleep and attacked by surprise in the early hours of the morning. The attackers had a strong desire to do grievous bodily harm and offensive weapons were used. Adopting and applying Canning J’s method, I place this case within category 4, so the starting point is 15 years.

19. These three counts of attempted murder arose from the same transaction in which they were all sentenced to 22 years for two counts of murder by Canning’s J 12 September 2020. Counsel of defense and The State have not assisted this court on whether the sentence I impose on the prisoners now be made concurrent to the earlier murder charges, save to offer a blanket submission that, that ought to be so as the transactions were the same. That approach in my view is not sure proof way of resolving this issue. To this end and for the avoidance of doubt, more so in the interest of justice, I exercise my inherent jurisdiction and order that the prisoners’ sentence in this case be served concurrently to the murder charge decided by the same Court.

20. The Court makes the following orders. The whole of the pre-sentence period in custody is to be deducted from their term of imprisonment by virtue of Section 3(2) of the Criminal Justice (Sentence) Act. Probation and or part suspended sentence considered inappropriate under the circumstances.

Court Orders

Prisoners	Count 1	Count 2	Count 3	Sentence
Joshua Martin	15	15	17	Counts 1&2 made concurrent to Count 3- 17 years.
Gedion Meteke	15	17	15	Counts 1 & 3 made concurrent to Count 2-17 years
Eddie Willie Bugie	15	15	15	Counts 1 & 2 made concurrent to Count 3-15 years
Korima Malaka	15	15	15	Counts 1 &2 made concurrent to Count 3-15 years
Stinsen Gio	15	15	15	Counts 1 & 2 made concurrent to Count 3-15 years

_______________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoners