State v Tom [2022] PGNC 437; N9848 (5 August 2022)

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THE STATE
-v-
PANUEL TOM, BANDI KUA & ANDREW KUA
(NO.2)
Prisoners

CRIMINAL LAW – Sentence - guilty after trail – Murder -Section 300(1) (a) of the Criminal Code – Section 7 Criminal Code Act.

CRIMINAL LAW – Sentence – Active participants sentenced on the same basis - Section 300(1) (a) of the Criminal Code.

1. GEITA J: The three accused were found guilty after trial on one count of murder contrary to Section 300 (1) (a) of the Criminal Code Act. The State also invoked Section 7 of the Criminal Code Act. They all pleaded not guilty and trial ensued. This section, subject to s.19 Criminal Code attracts a maximum life imprisonment.

2. The facts as found by the court on the conviction following trial are these: On the evening of 20 April 2021 the three accused were drinking alcohol with the deceased at their workplace at Most Grace Supermarket compound in Ramu, Usino Bundi District. During the cause of the evening, they entered into an altercation amongst themselves which resulted in the deceased coming off worst with severe head injuries caused by a blunt object, now found during trial to be a bottle. Accused Panuel Tom and Bandi Kua were found to be the main perpetrators. Within minutes of being taken to his house by his parents he began complaining about head and neck pains. After several medical visits to nearby Ramu Health Centre his condition continued to deteriorate and so he was rushed to Angau Memorial General Hospital but died on 3 May 2021. The Doctor described the injury as secondary brain injury where a person could receive injuries to his head but there were no outward signs of it but bleeds internally and this could take days, weeks and even months before he succumbs to death as it was difficult to diagnose. He died 13 days later after he was assaulted.
Allocutus.

Panuel Tom-24 years	I am sorry to the deceased and his family. I want to thank the Judge, Lawyers, CS and Police for hearing my case. I am married with 2 children. Since I was arrested, I have lost contact with my wife and children. I ask Court for leniency and to put me on probation so that I can stay outside and try to pay compensation. I ask to serve my time in my home province, Kerowagi as I don’t have any relatives here in Madang.
Bandi Kua-20 years	I am sorry to the deceased and his family. I want to thank the Judge, Lawyers, CS and Police for hearing my case. I am married with 2 children. Since I was arrested, I have lost contact with my wife and children. I ask Court for leniency and to put me on probation so that I can stay outside and try to pay compensation. I ask to serve my time in my home province, Barawagi as I don’t have any relatives here in Madang. I have been in custody for more than 14 months.
Andrew Kua-26 years	I am sorry to the deceased and his family. I want to thank the Judge, Lawyers, CS and Police for hearing my case. I am married with 1 child. Since I was arrested, I have lost contact with my wife and children. I ask Court for leniency and to put me on probation. I ask to serve my time in my home province, Barawagi.

4. As to aggravating factors, a life was taken, dangerous weapon was used, a blunt object, prevalence. As to mitigation factors, the accused co-operated with police, all first-time offenders with no prior convictions, prisoners expressed remorse.

Defence Submissions
5. Counsel of defence Mr Loloma submitted for a sentence below the lower range of category 2 of murder cases in Manu Kovi. A sentence between 14 – 16 years considered appropriate in light of the following considerations: The offence was committed in the spur of a moment and not pre-planned. The attack was not vicious, and the deceased died a few days later. Furthermore, in the two comparative cases referred to the court under the same section the prisoners were sentenced to 12,15 and 16 years respectively. The first case involved the use of a home-made gun in the killing: (The State v Elias Wakore Laha (No. 2) [2021] N9707. The second case involved the use of a brick as a weapon on the deceased’s head by three prisoners: (The State v Risipu [2021] N9325. All the prisoners were found guilty after trial. Mr Loloma submitted against the imposition of a maximum as the crime committed was not the worst of its kind. (Goli Golu v The State [1988-89] PNGLR 653 and Ure Hane v The State [1984] PNGLR 105.

6. Mr Popeu submitted for a head sentence of 16 – 20 years. As to the prisoner’s pleas to be allowed to pay compensation he submitted that such compensation could have been done earlier but it was not done. As such its now too late and there are no special circumstances warranting such considerations.

7. A pre-sentence report prepared on your behalf has fallen short of recommending all your suitability for probation. All your personal particulars and other relevant information were captured in the report. Panuel Tom aged 24 is from Kandep, Enga Province and married with 2 children. You were educated up to grade 8. Bandi 22 and Andrew 24 are brothers from Barawagi, Chimbu Province. You both are married with teen age children. Bandi Kua remains unemployed, Andrew Kua’s last employment was with Most Grace Supermarket as a baker. He was deceased’s co-worker at the time. You all told the probation officer that you were all worried for your wives’ and your children. You all indicated your willingness to contribute K10,000.00 each to the victims’ relatives if conditionally released on non-custodial sentence. According to your pre-sentence report you still maintained that after the drinking session with the deceased you took him to his room and left your separate ways.

8. Three persons were found guilty after trial for murder. Two were clearly identified to have assaulted the deceased and the third was in company and said to have aided and abetted. Having considered the circumstances surrounding this death I am satisfied that they all played some part in this killing. I take judicial notice that Andrew Kua was his co-worker and under normal circumstances would be slow to cause serious harm to his friend. Ideally his sentence will be slightly different to reflect his participation. However, in the Supreme Court case of Gimble v the State [1988 – 89] PNGLR 271, the Court ruled otherwise at page 273 and I quote:

“The general rule is that all active participants in the crime should be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar or was a watchman outside or was the driver of the getaway vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated.”

9. In this case a young man, whom you called your co-worker at the Most Grace Supermarket was needlessly killed by people whom he knew were his friends. In hindsight I do not think that he was concerned that his young life was in any danger when he sat down with the three of you and shared a drink in the comfort of his workplace, only to be assaulted which resulted in his death 13 days later. You all had no respect or regard for human life, and as such you all will be sentenced accordingly.

10. I take judicial notice of your concerns for your respective families, you all being first time offenders, however your aggravating factors outweigh your mitigating factors. As to your pleas for your willingness to pay compensation in place of a non-custodial sentence, I say here your attempts remain futile and has come too late. Although Courts in general are slow to take compensation in mitigation, special mitigation circumstance do arise where sizeable amounts of monetary compensation have been paid to the families of victims. To my mind your remorse in this regard is not genuine but a last-ditch attempt to pay your way out of this crime. In any event the victim’s parents demanded some compensation as their son was still alive to assist with his medical expenses, but you refused to assist them. The K1000 said to be given to them came from one of your friends and not directly from you. As to your pleas for you to serve sentence in your own home provinces is a matter for the CS Commissioner to determine. Due to the foregoing reasons, I sentence you all in this manner as a form of personal and public deterrence.

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused

Panuel Tom	Sentenced to 16 years less any pre trail period available to you.
Bandi Kua	Sentenced to 16 years less any pretrial period available to you.
Andrew Kua	Sentenced to 14 years less any pretrial period available to you.

National Court of Papua New Guinea

State v Tom [2022] PGNC 437; N9848 (5 August 2022)