State v Paru (No 3) [2021] PGNC 385; N9248 (3 November 2021)

N9248

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 289 OF 2012

THE STATE

V

JAMES PARU (No 3) of 2021

Waigani: Berrigan J
2021: 20^th October and 3^rd November

CRIMINAL LAW – WILFUL MURDER – SENTENCE - S 299 of the Criminal Code – Sentence following trial – Calculated and well planned killing conducted in cold-blood - The victim was lured to his death at a remote location – Strong desire to kill – Use of lethal weapon – Precise, single shot to the chest, causing death – Deceased’s vehicle dumped as part of a well-constructed plan to avoid detection – 30 years of imprisonment imposed.

Cases Cited:
Papua New Guinea Cases

Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Manu Kovi v The State (2005) SC789
Steven Ume & 2 Ors v The State (2006) SC836
Lati v State (2015) SC1413
Goli Golu v The State [1979] PNGLR 653
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Tardrew [1986] PNGLR 91
Rex Lialu [1990] PNGLR 487
Lawrence Simbe v The State [1994] PNGLR 38
The State v Malepo No 2 (1996) PNGLR 252
The State v Pritchard (2020) N6183
The State v Joseph Wai (2020) N8452

Overseas Cases

R v Law; Ex parte A-G [1995] QCA 444; [1996] 2 Qd R 63
R v Gilmore (1979) A 1 Crim R 416
R v Bedford (1986) 5 NSLWR 711
R H McL v The Queen [2000] HCA 46
R v Merritt [2002] NSWCCA 365
R v Hannes [2002] NSWSC 1182
Tarrant v R (2007) 171A Crim R 425

Legislation and Other Materials Cited:

Sections 19, 299 of the Criminal Code

Counsel

Ms. H. Roalakona, for the State
Mr B. Popeu, for the Accused

DECISION ON SENTENCE

3 November 2021

1. BERRIGAN J: The accused was convicted following re-trial of one count of the wilful murder of John Hulse, contrary to s 299 of the Criminal Code.
   
2. On 22 July 2011 the offender, a former soldier with the Papua New Guinea Defence Force, was told by his niece, Taita Pritchard, that she was having problems with her former boyfriend, John Hulse, who was seeing another woman. She told the offender that she wanted him to “terminate” the deceased. The following day she picked the offender up and they drove to Napanapa. The offender took with him a loaded pump action Mossberg shotgun. On the way the offender called the deceased and told him to come to Napanapa to pick up his passport and visa. The meeting location at Napanapa was isolated. It was about a 15 minute drive from Port Moresby. The nearest village was a kilometre away down the road, and at the time there were no buildings in the vicinity. Once there Taita dropped the offender on the side of the road and he waited for the deceased to arrive. Not long after the deceased arrived the offender shot him once in the chest, causing massive blood loss and death. The offender immediately fled the scene in the deceased’s vehicle, telling Taita over the phone that “your will has been done”. He abandoned the deceased’s vehicle at a village about 25 minutes’ drive away from the scene of the crime, where he was picked up by Taita and taken home. A brush fire alerted authorities to the presence of the body, two days later, lying face down, in an area of savannah grass, not visible from the road.
   

Allocutus

3. On allocutus the offender said: Firstly, I want to say I accept the verdict. Secondly, I would like to apologise to late John Hulse’s family, in Great Britain or wherever they may be. I am very sorry and my heart goes out to his family. I am sorry for what I have done. Also to my family, my faithful trusted wife and my children, and my siblings’ children. I have given them a hard time whilst in custody, especially my wife, who has been faithfully visiting, up and down to Bomana. Also, to my Sabama community and the people who look up to me as an upright community leader especially against ethnic violence. I hear about violence going out of hand. I apologise to the State of Papua New Guinea. The State trained me, cared for me. I am the fourth in the family. All of my siblings are dead. All of my siblings’ children, 50 to 60 grandchildren, are under my care, and only my wife is coordinating. Whilst in the PNGDF, I have always followed orders. I have been in Wewak, Taurama and I was also a member of Kumul Force, from Vanuatu. After that I served during the Bougainville Crisis and became a member of the British Gegorai Force, an anti-guerrilla force, and I was attached to 7^th Calvary of the 4^th RAR, with the Australian infantry in the Wantok Warrior Exercise. I have taken care of people whilst in the force. I looked after Dame Carol Kidu for 15 years and acted as security to foreign diplomats including Late Lucky Dube in 1995, and Monta Yoshinari from Japan, Johnny Dissan from Australia. I have a large piece of land. People are looking forward to me getting out and doing something for the country. I need to get out and help the government and the National Development Bank grow foodstuff to help people facing problems as a result of Covid 19. Also, it is not safe for me to stay up there at the prison because of my age and the risk of contracting Covid. I just had my birthday on 7 October. In view of all my suffering, I ask you to consider my distress and pain, and ask you to be lenient in my sentence. I will be thank you for your mercy and grace.

Sentencing Guidelines, Comparative Cases and Submissions

4. The maximum penalty for wilful murder under section 299 of the Criminal Code is death.
5. In Manu Kovi v The State (2005) SC789 the Supreme Court suggested the following sentencing ranges for wilful murder, according to four categories of increasing seriousness:
   

Category	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – little or no pre-mediation or pre-planning – minimum force used – absence of strong intent to kill.	15-20 years
2	Trial or plea – mitigating factors with aggravating factors.	Pre-planned, vicious attack – weapons used – strong desire to kill.	20-30 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Brutal killing, killing in cold blood – killing of defenceless or harmless person – dangerous or offensive weapons used – killing accompanied by other serious offence – victim young or old – pre-planned and pre-meditated – strong desire to kill.	Life imprisonment
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offence.	[No details provided]	Death

6. In Steven Ume & 2 Ors v The State (2006) SC836 the Supreme Court suggested that the following, non-exhaustive, circumstances may constitute the worst type of offence:
   1. the killing of a child, a young or old person, or a person under some disability needing protection;
   2. the killing of a person in authority or responsibility in the community providing invaluable community service, whether for free or for a fee, killed in the course of carrying out their duties or for reasons to do with the performance of their duties e.g. a police officer, correctional officer, government officer, schoolteacher, church worker, company director or manager;
   100. killing of a leader in government or the community, for political reasons;
   4. killing of a person in the course of committing other crimes perpetrated on the victim or other persons such as rape or robbery;
   5. killing for hire;
   6. killing of two or more persons, in a single act or series of acts;
   7. killing by a prisoner in detention or custody serving a sentence for another serious offence of violence; and
   8. where the offender has prior conviction(s) for murder.
      
7. Defence counsel acknowledged in aggravation the use of a dangerous weapon in the commission of the offence, pre-planning and a strong desire to kill. In mitigation he asked the court to take into account that the offender is a first time offender, he cooperated with police during the investigation, made early admissions in the form of a confessional statement, participated in a crime scene indication, and led the police to the weapon that was used in the commission of the offence, without which the investigation would not have been concluded promptly. He expressed remorse on allocutus.
8. Counsel submitted that the offending fell into Category 2 of Manu Kovi, attracting a sentence of 20 to 30 years.
9. Counsel referred me to The State v Pritchard (2020) N6183, in which Salika DCJ sentenced the offender before me today to 30 years of imprisonment. That was the sentence imposed following the initial trial in this matter.
10. Defence counsel observed that Probation Services does not regard the offender as suitable for probation but asked that the Court exercise its discretion to deduct time spent in custody.
11. The State submitted in aggravation that the offence involved the use of an offensive weapon by a well-trained person, pre-planning, the killing of a defenceless person, an attack to a vulnerable part of the body, and a strong intention to kill. Killing is prevalent. The mitigating factors referred to above were acknowledged.
12. The State submitted that the matter falls between Categories 2 and 3 of Manu Kovi. Counsel submitted that the case was unusual in the sense that the victim was lured to his death and that this case calls for strong personal and general deterrence.
13. Counsel referred to:
    1. Lati v State (2015) SC1413 in which the Supreme Court upheld an appeal against the death penalty imposed in circumstances where the trial judge erroneously found that the offence involved a premeditated and planned killing. The Court found that it was instead a wilful murder committed spontaneously as a crime of opportunity and substituted a sentence of 30 years imprisonment; and
    2. The State v Malepo No 2 (1996) PNGLR 252 in which the deceased was held up outside a bakery and killed when she was dragged for three kilometres after being tangled in the seat belt whilst attempting to free her mother and children from the vehicle. The offender was found guilty following trial, the State case depending on the confessional statement. The trial judge found that the deceased must have suffered an agonizing death as a result of being dragged for three kilometres and regarded the murder as falling in the worst category. He sentenced the offender to life imprisonment.
14. Counsel submitted that a sentence of between 30 years to life imprisonment was appropriate in this case, with time served in custody to be taken into account.

Consideration

15. The offender is 62 years of age. At the time of the offence he was about 52. He is from Hisiu Village, Bereina District, Central Province. He appears to be in generally good health. He told Probation Services that he has a problem with his left lung and due to old age, his strength is weak and he cannot perform heavy duties. There is no medical report to support these claims but I will return to his age below.
16. The offender is the patriarch of a large, extended family. He has been married to his wife for many years and they have four adult children, all of whom are married with their own families. He has lived all his life at Sabama. He has no savings and his wife and children rely on informal marketing. He, his wife and daughter plead for a reduced sentence so that the offender might support them meet their daily needs, and the needs of his many grandchildren.
17. The offender is educated to Grade 10, which he completed in 1974 at Kila Kila High School. In June 1980 he joined the Papua New Guinea Defence Force and passed out in December of the same year. He served for 12 years rising to the rank of Lance Corporal within the infantry. During this time he served in Vanuatu with Bravo Company for one year, before returning to serve with Delta Company in Wewak for five years. He was one of 10 men trained as an Anti-Guerrilla Warrior, and was picked to form a demonstration platoon to train new cadet officers between 1986 and 1987. He remained at Igam Barracks for 2 years before moving to Moem Barracks, East Sepik Province in 1988. In 1989 he was posted to Taurama Barracks to be close to his ill mother whilst he served with Charlie Company. He served there for four years before resigning in 1992.
18. In 1995 he was employed by Security Max as an escort for the transportation of large amounts of monies. He was a personal body guard for Lucky Dube, the Jamaican singer, in 1995. In 1999 he resigned and joined Bank South Pacific Security Team in the Cash in Transit Team. He resigned in 2005 before working for Curtain Brothers as a security escort.
19. Several highly respected members of the community provided references in support of the offender.
20. Pastor Chalmers Sabadi of the United Church has known the offender for twenty years during which the offender has led ministry, community and related activities including, counselling broken marriages, reuniting parents and children, rehabilitating drug addicts, advocating for peace and reconciliation amongst ethnic groups, supporting law and order at the village level, including women and girls facing gender based violence and discrimination.
21. Community Leader and Law & Order Chairman, Sabama and Moresby South, Mr Weki Miringine, MCS, has known the offender for forty years and also regards him as a loyal and dedicated community leader.
22. A member of the community and fellowship group member says that she came to know the offender in 2011 when she sought assistance from the offender following violence from her husband. As a result of the offender’s counselling her husband’s attitude and treatment of her changed completely.
23. Four members of the Friendship Women’s Association have known the offender as a member of their community for thirty years and have observed him to be a loyal man dedicated to family and community.
24. Deacon Navu Maita, of the United Church, Maopa Village, also spoke highly of the offender as someone who has counselled youth to live peacefully in the community.
25. I remind myself that s 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are very relevant considerations, every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38. In a case of homicide, careful regard must be had to the circumstances of death: in Rex Lialu [1990] PNGLR 487.
26. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653.
27. Whilst this case is not one of the worst kind, the aggravating factors make the offending very grave. This case is distinctive in its features. In my view, it squarely falls in Category 3 of Manu Kovi.
28. It was a premeditated and brutal killing in cold blood of a defenceless man, who had been lured to his death, at a remote location, on the pretext of having his passport returned to him. There was substantial planning involved, a strong desire to kill, and the use of a lethal weapon in the form of a pump-action shotgun. The offender was a trained infantryman, experienced in the use of weapons. He killed John Hulse with a single, precise shot to the chest, before fleeing the scene, and dumping the deceased’s vehicle some distance away, in a well-constructed plan to avoid detection. All this was done at the behest of, and to avenge his niece, who had been turned over for another woman.
29. No extenuating circumstances existed at the time of the offence.
30. In my view the appropriate starting point is life imprisonment.
31. Regrettably, no information is provided about the deceased. It has been 11 years since his death and Probation Services was unable to obtain the views of his friends or family. We know that he was a 52 year old expatriate man who lived and worked in Papua New Guinea. We can only assume that he has family and friends that to this day mourn his loss, necessarily made all the more painful by the knowledge that he died such a violent and terrible death.
32. In mitigation this is the offender’s first offence. It is clear from the above that he has a long history of service to the country in the Defence Force, and is of prior good character and standing within the community, in which he is regarded as an influential leader. I am not surprised that the offender is a leader in his community. As I have observed before, he is a confident and articulate man. None of those matters bear much weight in the circumstances of this case, however. Moreover, the Court is reminded again today that wilful murder is prevalent in this country. What deplorable conduct then on the part of a man who claims to be a leader for the youth in his community, and the victims and perpetrators of gender based violence. Violence and death is no way to prevent or resolve the breakdown of a relationship. This offence requires strong personal and general deterrence.
33. I take into account the remorse expressed on allocutus by the offender for the death of John Hulse, which I accept as genuine. It is clear from his pre-sentence report, however, that he continues to deny responsibility for the offence itself.
34. Whilst I appreciate that the sentence imposed will cause great hardship to the offender’s family, particularly his aging wife, it is well established that except in very extreme circumstances, it is not ordinarily a relevant consideration on sentence: Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
35. Whilst the offender appears to be in good health, his advanced age is a matter warranting some special mitigation.
36. In addition, whilst conviction followed trial, I do take into account that the offender cooperated with police, provided a confessional statement, participated in a crime scene indication (albeit not before me in this trial) and led police to the weapon used in the crime. The cooperation is of some significance, in particular his confessional statement, as it is this upon which the conviction essentially relies.
37. Neither party addressed the issue of delay. A lapse of time between the commission of an offence and the imposition of sentence is not a mitigating factor of itself: In R v Law; Ex parte A-G [1995] QCA 444; [1996] 2 Qd R 63. Delay may be a relevant consideration on sentence but it will depend on the circumstances. In determining whether delay is a mitigating factor consideration should be given to the reason for the delay. Section 37(3) of the Constitution guarantees a fair trial within a reasonable time. Where there has been a failure on the part of enforcement authorities or the judicial process to bring an offender to justice within a reasonable time that may properly constitute a factor in mitigation. This may be particularly relevant where an offender has cooperated with authorities from an early stage. Consideration should also be given to the conduct of the offender him or herself and their role in the delay. For obvious reasons a person who absconds should not benefit by the delay he himself has caused. Delay may also be relevant where the offender has made demonstrable progress towards his or her rehabilitation during the period of delay. As in any case, delay must be balanced against all the other factors for consideration, including the nature and seriousness of the offence.
    
38. It is now 10 years since the offences were committed. The accused’s first trial was heard and determined in 2015. He was sentenced in February 2016. The offender’s appeal against conviction was determined in November 2017 and the matter remitted for retrial. There was some delay before the matter was returned to listings and came before me. Whilst I do regard the delay as a relevant consideration in this case, it must be balanced against the seriousness of the offending, and bearing in mind that there has been a retrial. Furthermore, I intend to deduct the time spent in custody to date from the period imposed on sentence.
    
39. Finally, I take into account the fact that the offender was sentenced to 30 years of imprisonment following his first trial for this offence.
    
40. As a general, but not absolute, rule, where an offender is convicted on a retrial, following a successful appeal, he or she should not receive a longer sentence than that imposed after the first trial, unless there is some significant circumstance to be taken into account. The rule recognises that the right to appeal is guaranteed under the Constitution: s. 37(16). Not only is the right to appeal important for ensuring the rights of a particular individual to a fair trial but also for the purpose of avoiding similar errors occurring in future criminal trials. Potential appellants should not be discouraged from exercising their Constitutional right for fear of receiving an increased sentence if convicted on a re-trial. Nor should the criminal justice system be perceived as punishing a person for successfully pursuing their right to appeal and thereby discouraging others from doing so: The State v Joseph Wai (2020) N8452 adopting and applying R v Gilmore (1979) A 1 Crim R 416 and R H McL v The Queen [2000] HCA 46; (2000) 203 CLR 452.
    
41. The principle, which is sometimes referred to as “the ceiling principle”, is not intended to fetter the independent discretion of the sentencing judge: R v Bedford (1986) 5 NSLWR 711 at 714; R v Merritt [2002] NSWCCA 365 at [29]. Whilst it is open to the judge to impose a higher sentence in certain circumstances, the exercise of a discretion that increases the original sentence is “necessarily rare”: R H McL v The Queen at [72]. If a longer sentence is called for then reasons should be provided: R v Bedford at 714. This might include, where the original sentence was manifestly inadequate: R v Merritt at [34]; R v Hannes [2002] NSWSC 1182. Or where other offences have been committed in the intervening period: R v Gilmore at 419. A variance between the number or nature of counts resulting in conviction on a re-trial, and considerations of totality may also justify an increase: R v Bedford at 714; H McL v The Queen at [34], [74]. Similar considerations may apply where the findings at the retrial lead to an assessment of greater culpability on the part of the offender than at the first trial: Tarrant v R (2007) 171A Crim R 425 at [39].
    
42. The law has always regarded a well-planned murder as very serious. This was a cowardly and callous murder. It is clear that the gravity of the offending outweighs the matters in mitigation. A life tariff is arguably appropriate in the circumstances. Nevertheless, having regard to the matters identified in mitigation, and the sentence imposed following the initial trial, I intend to impose a sentence of 30 years of imprisonment.
    
43. Having regard to the offender’s age this will be spent without hard labour. I exercise my discretion to deduct time spent in custody.
    
44. Defence counsel has not sought suspension and Probation Services do not regard the offender as suitable. This is not a case warranting suspension in any event. None of the categories identified in The State v Tardrew [1986] PNGLR 91 apply. Whilst the offender is of advanced age, I am not of the view that imprisonment would cause an excessive degree of suffering by that reason alone.
    
45. The offender has made reference to Covid 19. I do not intend to dismiss those concerns out of hand. I accept that given his age he is at greater risk of serious illness if he contracts the virus. I also accept that he is at great risk of contracting it if there is an outbreak in the prison. Those concerns must, however, be balanced against all the circumstances of the case including the seriousness of the offence. I also take into account that the risk to anyone of contracting the virus now that the highly contagious Delta strain is in the community is also high. It must also be borne in mind that Correctional Services is obligated to actively manage the risk to all detainees, and must ensure medical assistance in the event that it is required. In the circumstances I do not intend to suspend the sentence on this basis.
    
46. In conclusion, only service of the sentence in custody will ensure that the offender is adequately punished for his conduct, that the Court appropriately denounces such offences, and that the offender and others are deterred from committing similar offences in the future.
    
47. I make the following orders:
    

Orders

(1) The offender is sentenced to 30 years of imprisonment without hard labour at Bomana Correctional Institution.

(2) Ten years, 2 months, 4 days spent in pre-trial custody is deducted from time to be served.

Sentence accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused