State v Ambangun [2021] PGNC 614; N9543 (13 October 2021)

N9543

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 613 OF 2020

BETWEEN:
THE STATE

AND:
YONDICK AMBANGUN

Angoram: Rei, AJ
2021: 6^th, 11^th, 12^th & 13^th October

CRIMINAL LAW – Wilful Murder – S.299(1) of the CCA – Use of crocodile hunting spear – Plea – 7 years IHL – Suspended - Good Behaviour

Cases Cited:

Manu Kovi -v- The State [2005] PGSC 34; SC789
Goli Golu -v- The State [1979] PNGLR 635
Lawrence Simbe -v- The State [1994] PNGLR 38
Ure Hane -v- The State [1984] PNGLR 105
John Elipa Kalabus -v- The State [1988] PNGLR 193
The State -v- Yakoko Imbuni & Ors [1988] N1558

Legislation:

Section 299(1) of the Criminal Code Act

Counsel:

Mr. Solomon Kuku, for the State
Mr. Stanley Parihau, for the Defendant

DECISION ON SENTENCE

INTRODUCTION

1. REI AJ: INTRODUCTION: The State presented an indictment against the accused on the 11^th of October 2021 that:
   

“Yondick Ambungun of Yaut Village Angoram East Sepik Province stands charged that he, on the 24^th day of August 2019 at Yaut Village East Sepik Province in Papua New Guinea, wilfully killed one Timothy Anpop.”

2. The brief facts of the case are that on the 14^th of August 2019 at about 3:00 pm the accused noticed the deceased Timothy Anpop come out of the bush with his sister who shouted at the deceased saying “yu trabel man”.

3. The accuse went to his house, got a crocodile hunting spear and returned, and ran straight towards the deceased and speared him on his left arm pit resulting in him falling to the ground and died.

ARRAIGNMENT

4. The charge and facts of the matter were read to the accused and was asked whether he understood the charge and facts.

5. He said he did understood.

6. When asked to enter a plea, the accused said he pleads guilty to the charge.

7. Mr. Parihau submitted that the plea was consistent with his instructions.

8. Upon perusal of the committal file, I confirmed the guilty.

9. The accused was then found guilty of the offence of wilful murder as provided for under Section 299(1) of the Criminal Code Act (“the CCA”).

ANTECEDENTS

10. The prisoner has no prior conviction.

ALLOCUTUS

11. In his allocutus, the prisoner stated that he was sorry for what he did. He did say sorry to the family of the deceased and to the Court for what he did.

MITIGATING FACTORS

12. The mitigating factors are:
    
    • Pleaded guilty to the offence saving time and costs
    • A first time offender
    • Prisoner submitted to the Police voluntarily and in doing so admitted the offence
    • Prisoner acted alone
    • No strong intention to kill
    • Minimum or no pre-panning
    • Showed remorse
      

13. The defence submitted that there is de factor provocation which is an extenuating circumstance as the deceased is known to have three (3) wives and has the habit of molesting woman.

AGGRAVATING FACTORS

14. Aggravating factors are that:

• the deceased was attacked without being aware of the danger
• a life was lost
• a dangerous weapon, a crocodile hunting spear, was used to attack the deceased
• deceased unarmed and defenceless
• offence committed in a public place
  

SENTENCE

15. From the limited facts provided, it seems that the accused was alerted by one of the three (3) wives of the deceased that her late husband had taken the sister of the accused to the bush.

16. The facts do not say what happened in the bush.

17. It would also seem that, upon being informed, the prisoner went to the bush and noticed for himself that what was relayed to him by one of the wives was correct and returned to his house, armed himself with a crocodile hunting spear then returned and speared the deceased to death.

18. Evidently there was no pre-planning and the intention to cause serious bodily harm resulting in death may have been made instantaneously and achieved thereafter.

19. In submissions, both Counsels drew my attention to the case of Kovi -v- The State which case provides sentencing tariffs and guidelines which are as follows:

(i) Category 1 – Plea

These are plea cases with mitigating factors and no aggravating factors. These are when no weapons were used, there is little or no-preplanning, less force is used, and there is absence of strong intention to kill. Here the sentence tariffs ranges from 15 to 20 years.

(ii) Category 2 – Denial or Plea

This category includes cases where there is pre-planning, vicious attack, weapon is used, and no strong intention to kill. The sentence range from 15 to 20 years.

(iii) Category 3 – Denial or Plea

Involves brutal killing, killing in cold blood, killing of innocent, defenceless or harmless persons, dangerous or offensive weapons used, killing accompanied by other serious offence, the victim is younger or old, the killing is pre-planned and there is a strong desire or intention to kill. Sentence is life imprisonment

(iv) Category 4 – Denial or Plea

The last category attracts a sentence of death. Such cases are where there are special aggravating factors with no extenuating circumstances, and the gravity of the offence is such that outweighs any mitigating factors.

20. The sentence in wilful murder cases is death as provided for under Section 299(1) of the CCA but authorities in this jurisdiction say that death penalty shall be reserved for the worst cases Goli Golu -v- The State [1979] PNGLR 635, and that each case should be treated according to its facts and circumstances to arrive at a sentence – Lawrence Simbe -v- The State [1994] PNGLR 38.

21. Prior to the introduction of the death penalty, the maximum penalty for wilful murder was life imprisonment, and in considering whether this sentence be imposed in the case of Ure Hane -v- The State [1984] PNGLR 105 Bredmeyer J. set out an useful guideline for different types of wilful murder where maximum penalty of life imprisonment be imposed. These are:

(i) A wilful murder done in the course of committing a crime of violence such as theft, robbery, break and enter or rape.
(ii) A wilful murder of a policeman or a prison warder acting in the execution of his duty.
(iii) A wilful murder done in the course of or for the purpose of resisting or avoiding lawful arrest or assisting in an escape from lawful custody.
(iv) Deliberate and vicious killing of law enforcement officers whilst on duty.
(v) Payback killing of a completely innocent man.
(vi) Any second or third murder.
(vii) Any murder where the offender has a long record of violence such that he is likely to commit such offences in the future.
(viii) Any murder of the Governor General, the prime minister, the leader of the opposition, the speaker of the National Parliament, the chief justice, a visiting prime minister, the Pope, Bishop or other VIPs.

22. Since Ure Hane’s case life imprisonment has been imposed in the following cases:

• Brutal and unexplained killing of innocent children or young students – John Elipa Kalabus -v- The State [1988] PNGLR 193.
• Prisoner of violent character with previous convictions for manslaughter – Manu Kovi -v- The State (supra).
• Payback multiple killing in ambush attack killing three (3) members of the same family – The State -v- Yakoto Imbuni & Ors [1988] N1558
  

23. In my opinion, this case does not fall within the class of cases described herein and is not a worst type of wilful murder case.

24. As I said, the accused acted voluntarily in accomplishing his own unlawful plan.

25. However, an innocent life was taken without any lawful reasons.

26. Considering that the prisoner has expressed genuine remorse as well as other mitigating factors, I impose a sentence of 25 years less the time spent in goal of 2 years 2 months and 4 days.

27. The prisoner is therefore sentenced to imprisonment for a period of 22 years which term is to be reduced by the number of years spent in remand awaiting his trial.

________________________________________________________________

Public Prosecutor: Lawyer for the State

State Solicitor: Lawyer for the Defendants