State v Kimbi [2022] PGNC 157; N9539 (12 March 2022)

N9539

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1375 & 1380 OF 2021

BETWEEN:
THE STATE

AND:
VIGIL KIMBI

AND:
LENNON WANGI

Maprik: Rei, AJ
2022: 7^th, 9^th, & 12^th March

CRIMINAL LAW – Practice and Procedure – plea of guilty – murder in the village – parity in sentence – 12 years and 8 years respectively – compensation of K2,500.00 paid by each prisoner – suspension and part of sentence upon payment of compensation – failing which sentence to be served in full.

Cases Cited:

Manu Kovi -v- The State (2005) SC789

The State -v- Melchior Gumbuli [2021] PGNC 360; N8962

The State -v- Gurua [2002] PGNC 41; N2321

Lawrence Simbi -v- The State [1994] PNGLR 38

Passingan -v- Beaton [1971-72] PNGLR 206

Legislation:

Section 300(1) of the Criminal Code

Section 19 of the Criminal Code

Counsel:

Mr. George Kore, for the State
Mr. Nasson Katosingkalara, for the Accuseds

12^th March, 2022

1. REI AJ: The two accused persons: Vigil Kimbi and Lennon Wangi were both jointly indicted on the 9^th of March 2022 on one count of the murder of Hubert Bun on the 17^th of December 2020 at Sapange Village, Wosera-Gawi District, East Sepik Province pursuant to Section 301(1)(a) of the Criminal Code.

2. The charge you with the indictment was presented reads:

“Vigil Kimbi and Lennon Wangi of Savanaut Village – Pagwi, Wosera-Gawi District, East Sepik Province stand charged that they, ..... on the 17^th of December 2020 at Sapange Village, Wosera-Gawi, in East Sepik Province of Papua New Guinea murdered one Hubert Bun.

3. Section 300(1)(a) of the Criminal Code under which the charge was laid reads:

“300 murder

“(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

(a) if the offender intended to do grievous bodily harm to the person killed .....,

“Penalty: Subject to Section 19, imprisonment for life.”

4. The facts alleged against Vigil Kombi are that on the afternoon of 17^th December 2020 at Wosera Gawi District, Hubert Bun who is the deceased in this case, and his friends walked passed Sapange Hamlet. The accused Vigil Kimbi saw them, approached the deceased and reminded him about a letter from Police in which the deceased had been summoned to attend at the police station on a complaint that he swore at the prisoner and insulted the accused and his mother. He then said he would cut off the neck of the accused.

5. On the road the deceased saw Tot Kande, swore and became angry with him. He then armed himself with a knife and headed back to Sapange Hamlet where he charged at Vigil Kimbi. The deceased was accompanied by Jordon Bun, Panuel Bowi, Ken Donnie and Bowi Matchin in the attack.

6. The other boys at Sapange Hamlet saw the attack on Vigil Kimbi so they picked up a fight on the deceased and his accomplices to save Vigil. The deceased advanced at Vigil, so Vigil got a knife and cut him on his neck. He fell down and was taken to the health center but died later.

7. Vigil did not mean to kill the deceased. He cut him to get him down. However the deceased unfortunately died. Lennon Wangi the co-prisoner was involved in the fight by assisting Vigil Kimbi.

8. The other accused person Lennon Wangi hit Jordon Bun with a catapult who was with deceased and ran away.

ARRAIGNMENT

9. Both accused persons were arraigned in which the charge and the brief facts were read out to them.

10. Both men entered provisional plea of guilty which were confirmed by Mr. Katosingkalara as consistent with his instructions. A provisional plea of guilty was entered.

11. A plea of guilty was confirmed as against both accused persons after perusal of the committal files and were found guilty of the offence of murder under Section 300(1) of the Criminal Code.

ANTECEDENT

12. No prior convictions.

ALLOCUTUS

13. In allocutus, the prisoner Vigil Kombi stated that he was sorry to the Court, the family of the deceased and to his family and village people for bringing shame to them.

13. He then asked that the Court be lenient in passing sentence.

14. The prisoner Lennon Wangi also said sorry in the same way as the prisoner Vigil Kimbi.

MITIGATING FACTORS

15. The mitigating factors favouring the prisoners are:

(i) plea of guilty thus saving time and costs;
(ii) deceased was the one who initiated the attack against the

prisoner Vigil Kimbi with the assistance of his accomplishes whereupon the prisoner Vigil Kimbi and Lennon Wangi retaliated resulting on hitting the deceased on his neck causing death, a de-facto provocation;

(iii) no pre-planning
(iv) first time offenders
(v) voluntarily surrendered to the Police and;
(vi) expressed genuine remorse

AGGRAVATING FACTORS

16. The aggravating factors are that:

(i) a dangerous weapon was used, a bush knife;
(ii) being encouraged by others present at the scene and
(iii) death occurred, a life was lost.

ASSESSMENT OF FACTS

17. Being cases in which pleas of guilty were entered by the two (2) prisoners, the question becomes one of the nature and extent of sentences to be imposed by the Court.

18. The case of the Manu Kovi -v- The State [2005] SC789 sets at the sentencing tariffs in murder and wilful murder cases.

CATEGORY	WILFUL MURDER
CATEGORY 1	-15 – 20 years
Plea - Ordinary cases - Mitigating factors with no aggravating factors.	- No weapons used - Little or no pre-meditation or pre- planning - Minimum force used. - Absence of strong intent to kill.
CATEGORY 2	- 20 – 30 years
Trial or Plea - Mitigating factors with aggravating factors	- Pre-planned. Vicious attack. - Weapon used - Strong desire to kill
CATEGORY 3	- Life Imprisonment -
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 innocent, 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.
CATEGORY 4	- DEATH -
WORST CASE – Trial or Plea - Special aggravating factors. - No extenuating circumstances. - No mitigating factors or mitigating factors rendered completely insignificant by gravity of offence.

19. Both Counsels agreed in written submissions that this case falls within Category 2 provided for in the above case First there was no strong intention to do grievous bodily harm although dangerous weapons were used to cause harm to the body.

20. This case borders on with the type of cases where the accused persons did not really intend to inflict wound resulting in death but rather to subdue the situation and bring peace. The agreed facts are that both prisoners retaliated as they were ‘provoked’ by the actions of the deceased in advancing against them and used lethal weapon where upon both prisoners retaliated.

21. It is not a situation where the prisoners planned their attack then went and inflicted wounds resulting in the death of the deceased.

22. The evidence is that the deceased first attacked Vigil Kimbi. He initiated the attack followed by the attacks of the two (2) prisoners.

23. I was referred by Mr. Katosingkalara to the case of The State -v- Melchior Gumbuli [2021] PGNC 360; N8962 (19^th March 2021) in which I handed down in Maprik.

24. In that case, the prisoner pleaded guilty to murder. He was drunk. He cut the female deceased person on her chest and abdomen and when she was brought to the house, the prisoner followed her and inflicted wounds on her hand.

25. A sentence of 16 years was imposed.

26. The facts of this case differ to those in The State -v- Melchior Gumbuli (supra) in that (i) the prisoners did not repeat their attack; (ii) they were not drunk; and (iii) realising that they had done wrong, they escaped but immediately reported the matter to the Police.

27. Plainly both prisoners did not have any strong desire to murder the deceased.

28. In my view the sentence in The State -v- Gumbuli is therefore inappropriate to the circumstances of this case.

PARITY IN SENTENCE

29. Two prisoners were involved in the same incident which resulted in the death of the deceased.

30. The prisoner Vigil Kimbi hit the deceased around the area of the neck and head. The prisoner Vennon Wangi, although did not inflict any wounds onto the body of the deceased, he was present and did pick up a fight with one of the relatives of the deceased namely Jordon Bun in an attempt to save the life of the prisoner Vigil Kimbi.

31. From my assessment of these facts, I have concluded that his degree of participation in the death of the deceased was minimal. But he was present and he did take steps to commit the crime by using a catapult shooting Jordon Bun who was then with the deceased at all material times at the scene of the crime.

32. The parity principle requires therefore that “... the sentence for two (2) or more persons charged and convicted for the same offence is largely determined according to the level of criminal culpability or degree of participation and their individual circumstances:” The State -v- Gurua [2002] PNGC 41; N2321 (11^th December 2002).

SENTENCES

33. I am mindful that sentences in each case must be determined according to its own peculiar facts and circumstances Lawrence Simbi -v- The Stat [1994] PNGLR 38 and that maximum penalty be reserved for the worst cases.

34. I consider that both prisoners be imposed differing sentence range as there is a vast difference in the degree of participation.

35. Whilst I consider that the prisoner Vigil Kimbi deserves to be sentenced for a longer term because he caused the death of the deceased by inflicting fatal blows to his neck and head area, the prisoner Lennon Wangi should be given a lighter prison sentence.

36. Furthermore because there was no intention and no pre-planning to inflict wounds resulting in the murder of the deceased and that the prisoner Vigil Kimbi acted in retaliation for his own defence and safety in a ‘de facto’ defence of self defence and provocation, the sentences imposed should differ from and be lighter than those cases in which these facts are lacking.

37. I note both prisoners are relatively young and that crushing sentences should not be imposed: Passingan -v- Beaton [1971-72] PNGLR 206 per Rain J.

38. However, a wrong act has resulted in the death of a person which wrong act can never be undone. It is that the work of a life time can never recover what has been lost in a single moment of temptation or even thoughtlessness. But a life has been lost. The perpetrators must therefore pay for it.

39. Having given full consideration and, in the exercise of my discretion under Section 19 of the Criminal Code and because the prisoners entered early plea, expressed genuine remorse and considering their youthfulness, the Court imposes sentences as follows:

(i) that the prisoner Vigil Kimbi be imprisoned for a term not exceeding 12 years less 1 year 3 months 3 days time spent in prison awaiting trial leaving the balance of 10 years 8 months 27 days in prison;
(ii) that within six (6) months from today, if the prisoner pays compensation of K2,500.00 to the relatives of the deceased, his term of imprisonment be reduced by two (2) years, failing which he is to serve the whole prison term;
(iii) prisoner Lennon Wangi be imprisoned for a term not exceeding 8 years less 1 year 3 months 3 days for time spent in prison awaiting trial leaving the balance of 6 years 8 months 27 days;
(iv) that within six (6) months from today, if the prisoner pays compensation of K2,500.00 to the relatives of the deceased, his term of imprisonment be reduced by two (2) years, failing which he is to serve the whole prison term;
(v) upon being released, both prisoners be placed on 2 years on probation and report to the Probation & Parole Officer every Monday until the term of probation lapses;
(vi) if no compensation is paid, they shall serve their respective sentences in full.

________________________________________________________________
Public Prosecutor: Lawyer for The State
Public Solicitor: Lawyer for the Defendant